In a case of first impression in Washington, the Supreme Court recently held that the double jeopardy provisions of the United States and Washington Constitutions do not apply to lawyer discipline proceedings. In re Waechter, ___ Wn.2d ___, 419 P.3d 827, 2018 WL 2977072 (June 14, 2018), involved a lawyer who had allegedly converted client funds from his trust account.
The lawyer was charged with multiple alleged RPC violations stemming from the same conduct—ranging from RPC 8.4(b) (professional misconduct to commit a criminal act that reflects adversely on the lawyer’s honesty) to RPC 1.15A(b) (prohibiting unauthorized use of client property). The lawyer argued that charging multiple RPC violations for the same conduct violated the double jeopardy provisions of the federal and state constitutions by punishing him more than once for the same conduct. While acknowledging that an accused lawyer has due process rights in discipline proceedings, the Supreme Court held that double jeopardy protection was not one of them. In doing so, the court looked to other jurisdictions that had considered the issue and concluded that discipline proceedings are not sufficiently similar to criminal proceedings to invoke double jeopardy protections. Those out-of-state decisions generally distinguished the sanctions available in the professional licensing context—such as suspension or disbarment—from typical criminal sanctions such as fines or imprisonment.
On the facts before it, the Supreme Court in Waechter did not expressly consider the related issue of whether a lawyer charged with violating the RPCs could rely on double jeopardy provisions if the lawyer had earlier been subject to criminal prosecution for the same conduct. However, the out-of-state cases the Washington Supreme Court relied on in Waechter arose from that context—suggesting that a lawyer in that scenario could expect the same result as the attorney in Waechter.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
