You probably know that the WSBA Office of Disciplinary Counsel (ODC) investigates and prosecutes legal professionals who violate the ethical rules. What you may not know is that, in some instances, legal professionals must report their own misconduct or other information to ODC.
The Rules for Enforcement of Lawyer Conduct (ELC) impose a duty for lawyers to self-report in three specific contexts: felony convictions, discipline in other jurisdictions, and trust account overdrafts. The Rules for Enforcement of Limited Practice Officer Conduct (ELPOC) and the Rules for Enforcement of Limited License Legal Technician Conduct (ELLLTC) impose a duty for Limited Practice Officers (LPOs) and Limited License Legal Technicians (LLLTs) to self-report trust account overdrafts.
A lawyer who is convicted of a felony must report the conviction to ODC within 30 days. ELC 7.1(b). A “conviction” occurs upon entry of a guilty plea or a finding or verdict of guilty. ELC 7.1(a)(1). A “felony” includes any crime denominated as a felony in the jurisdiction where the crime was committed, regardless of whether the crime is a felony in Washington. ELC 7.1(a)(2).
If a lawyer is convicted of a felony, disciplinary counsel must file a formal complaint to initiate disciplinary proceedings and a petition with the Supreme Court for an order suspending the lawyer’s license during the pendency of the proceedings. ELC 7.1(c). In the disciplinary proceeding, the court record of the conviction is “conclusive evidence” of the lawyer’s guilt of the crime and violation of the statute on which the conviction is based. ELC 10.14(c). Generally, disciplinary hearings following a conviction are sanction hearings.
A lawyer who is publicly disciplined or transferred to disability inactive status in another jurisdiction must report the discipline or transfer to ODC within 30 days. ELC 9.2(a). Similarly, a lawyer who has resigned in lieu of discipline in another jurisdiction must inform ODC of the resignation within 30 days. ELC 9.4(a). The Washington Supreme Court interprets “another jurisdiction” broadly to include other states, federal courts, administrative agencies, tribal courts, and military tribunals.
Next, ODC must notify the Washington Supreme Court, which enters an order directing the lawyer to show cause why the court should not impose identical discipline in Washington. ELC 9.2(b). If a lawyer resigns in lieu of discipline, the court enters an order directing the lawyer to show cause why the lawyer should not be disbarred. The adjudication of misconduct or disability in another jurisdiction conclusively establishes the misconduct or disability for purposes of proceedings in Washington. ELC 9.2(f). A lawyer can challenge the imposition of reciprocal discipline on specified grounds. ELC 9.2(e); ELC 9.4(d). The court considers reciprocal discipline matters based solely on the documentation submitted by the parties.
Trust Account Overdrafts
A lawyer who receives notification that an instrument was presented against insufficient funds in the lawyer’s trust account must “promptly notify” ODC of (1) the identity of the financial institution; (2) the identity of the lawyer, (3) the account number; and (4) either the amount of overdraft and date created or the amount of the returned instrument instrument(s) and the date returned. ELC 15.4((b)(1), (d). The reporting requirement for lawyers is in addition to a similar reporting requirement for financial institutions. ELC 15.4(a), (b).
Similarly, an LPO or closing firm that receives notice of a trust account overdraft must report comparable information to the staff liaison for the Limited Practice Board (LP Board). ELPOC 15.4(c). A LLLT who receives notice of a trust account overdraft must report comparable information to the staff liaison for the LLLT Board. ELLLTC 15.4(b).
For lawyers, disciplinary counsel and ODC’s auditors review trust account overdraft notices and the lawyer’s explanation for the overdraft to determine next steps, which could include obtaining additional information from the lawyer and the financial institution. For LPOs and LLLTs, trust account notifications are handled initially by WSBA’s Regulatory Services Department, with ODC conducting investigations on matters referred by the chair of the LP Board’s Discipline Committee or the chair of the LLLT Board’s Discipline Committee, respectively, for further investigation.
How to Comply with Self-Reporting Requirements
To comply with self-reporting requirements, legal professionals (or their counsel) should submit the relevant information in writing to ODC (or, in the case of LPO or LLLT trust account overdrafts, the WSBA staff liaison for the appropriate regulatory board). Failure to comply may result in discipline, see ELC 1.5, ELPOC 1.5, ELLLTC 1.5, although there are no reported cases to date.