Wednesday, July 10, 2019

Bar Discipline

Here’s a quick pop psychology test:  If I ask what you think of when you read the phrase “Bar Discipline,” would it be:

A.  Gymnastics practice

B.  Resisting that one drink too many

C.  The theme of an upcoming party at 
       a sketchy gay club.

D.  A Lawyer Dominatrix's speciality

Any lawyer's response will be "None of the above." Not even the dominatrix.

Because for an attorney, the phrase "Bar Discipline" means only one thing:  Someone has filed a complaint with the bar association accusing a lawyer of doing something unethical. And if the complaint is upheld, that attorney could be suspended from practicing law, or even disbarred. 

Lawyers are special. Not as special as we think we are, of course. But we can do things no one else is allowed to do. We’re even a “self-regulating” monopoly. In Washington, all attorneys are members of the Washington State Bar Association. WSBA’s mission is “to serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.” 

Among other functions, WSBA administers the state’s lawyer attorney discipline system. For example, last year individuals submitted 1,965 grievances regarding lawyer conduct. As it turns out, most grievances do not involve alleged professional misconduct. Instead, they relate to purely private complaints about the attorney or the disputed legal matter, and are beyond WSBA’s jurisdiction. In most cases, the WSBA staff send the grievants a letter saying the bar association can’t help them, and the complaint is dismissed before the attorney even knows it was filed. 

In a small percentage of cases, WSBA staff determine that they have jurisdiction over the complaint, and they open an investigation into the allegedly unethical conduct. Some of these cases are resolved by agreement. If not, and if the Office of Disciplinary Counsel concludes the lawyer violated one of the Rules of Professional Conduct and there is sufficient evidence to prove a violation occurred, the complaint will be set for hearing. The Office of Disciplinary Counsel acts as prosecutor. Accused lawyers generally represent themselves, or they hire a Washington lawyer who specializes in professional responsibility issues. Complaints are adjudicated before one of the bar’s volunteer hearing officers. Their rulings are reviewed by the court-appointed Disciplinary Board. The State Supreme Court retains ultimate authority over lawyer discipline.

In “Losing My NEXUS Pass,” I wrote about an incident at the border last year where the overzealous boy scouts at US Customs and Border Patrol concluded I was a dangerous drug smuggler. They detained me in a windowless room until a sheriff’s deputy arrived. He began by reading me my Miranda rights.

The Miranda warnings originated in a 1966 United Supreme Court case called Miranda v. Arizona. I’ve been a lawyer for 28 years, including as an attorney with the American Civil Liberties Union. I’ve also seen a lot of TV and movies. I can recite the Miranda warnings by heart. ("You have the right to an attorney....") But I’d never heard them directed at me personally.

The deputy ended his speech by asking if I’d like to answer some questions. Various thoughts ran through my head: “Surely there’s been a terrible misunderstanding?” “Aren’t lawyers just for guilty people?” “Is anyone who represents himself an idiot?” “Where will the kids go after school tomorrow if I’m in jail?”

I told the deputy “I guess it depends on the question.”

That experience got me got me thinking about the importance of having a lawyer when it really matters. And not just in criminal matters. Having the benefit of lawyer is so important that if another attorney knows you’re represented by counsel, it’s a very serious ethical violation to talk to you about anything related to the representation without your attorney being present.

Washington Rule of Professional Conduct 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

RPC 4.2 applies both to conduct by individual attorneys as well as to conduct by others on the lawyer’s behalf. For example, under RPC 8.2(a), a lawyer may not “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” RPC 5.1(c) further provides “a lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

   (1)  the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

   (2)  the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

RPC 4.2 is essential to public confidence in the integrity of the legal profession. According to the Washington Supreme Court,

As the comment to model rule 4.2 explains, the rule aims to protect those represented by counsel “against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation.” In Carmick, we acknowledged that “[t]he rule's purpose is to prevent situations in which a represented party is taken advantage of by adverse counsel.” 

In re Discipline of Haley, 156 Wn.2d 324 (2006) (citations omitted). The presumptive sanction for a violation of RPC 4.2 is a suspension from practicing law. 

After I was diagnosed with PTSD in November 2015, I informed my employers about my diagnosis, and asked them to consider a reasonable accommodation of my disability. As the cliché goes, a lawyer who represents himself has a fool for a client. In my defense, I was dealing with a serious medical issue. I was also being gaslighted at work and harassed by inept and xenophobic bureaucrats who were blinded by confirmation bias.

Recognized my own negotiation efforts were futile, in March 2016 I hired Sean Phelan of the Seattle employment firm Frank Freed Subit & Thomas. Ms. Phelan is an expert in disability, mental illness, and reasonable accommodation issues. On March 29, 2016, my attorney spoke with Assistant Attorney General Kari Hansen, the employment attorney designated by Chief Deputy Attorney General Shane Esquibel to represent the State in this matter. For the next six weeks, Ms. Phelan attempted to engage Ms. Hanson in the interactive good faith dialogue about my disability that all employers are required to participate in under the Americans With Disabilities Act and the Washington Law Against Discrimination. Ms. Hanson failed to respond to Ms. Phelan’s repeated inquiries.

Meanwhile, these same lawyers, at tax-payer expense, had me interrogated alone in the offices of their licensed private investigator. The Attorney General’s Office then relied on statements I made during that session when they terminated my employment a few weeks later.

Can an ethical lawyer do that? No.  

On December 18, 2018, I filed bar complaints regarding the conduct of Ms. Hanson as well as her supervisor Mr. Esquibel, contending that they violated Rule 4.2 when they directed their investigator to interrogate me even though they knew I had hired a lawyer to represent me in my employment dispute. 

After conducting its preliminary review, the Office of Disciplinary Counsel determined it had jurisdiction over my bar complaints, and opened an investigation. Lawyers for the state – at tax-payer expense – submitted a preliminary response on behalf of the two individual attorneys. I will let the parties’ statements and the undisputed documentary record speak for themselves. [Ed. Note: click here for a timeline describing the relevant events in Spring 2016, including copies of emails and other documents produced by the Attorney General's Office under Washington's robust Public Records Act.]

At the request of the Attorney General’s Office, and over my objection, the Washington State Bar Association’s investigation into my bar complaints is currently on hold, pending the final resolution of my separate lawsuit against the private investigator firm hired by the state’s attorneys to interrogate me. The Attorney General's Office prefers to delay these proceedings for years – even though the facts described in my bar complaints are undisputed, the complaints involve Attorney General Bob Ferguson’s top lieutenant, and the presumptive sanction is suspension.

Unfortunately, that’s how “serving the public” works in a self-regulating profession. Perhaps we need a little more self-discipline.

Coming up tomorrow: "7-Eleven Law School is accredited!"

After each episode of Game of Thrones, the online magazine Slate asks “who is currently the worst person in Westeros?” “Westeros” is the fictional continent whose throne everyone is fighting over on HBO. “Western” is the shorthand everyone in Bellingham uses to refer to our community anchor, Western Washington University. My former employers at the Washington Attorney General’s Office hired me to serve as Western’s chief legal advisor, then spent the next year abusing and discriminating against me. When I’d made enough progress with PTSD to share some of the stories about my experiences, I decided to borrow Slate’s framing device. Stay tuned to see who will ultimately be crowned as the Worst Person in Western-eros…. 

Click here for other episodes of "Who is the Worst Person in Western-eros?"

No comments:

Post a Comment