September 2008
Ethics and the Law
Reciprocal Discipline and Changes to Local Federal Rules
by Felice Congalton, Joanna Plichta, and Alex Baehr
This article describes reciprocal discipline in Washington and, more specifically, its relationship to local rule changes in the United States District Court for the Western District of Washington. Lawyers should know that an order imposing discipline in federal district court can be the basis for the Washington State Supreme Court to impose the same discipline, affecting a lawyer’s broader ability to practice law in Washington state. Whether discipline is imposed in federal district court, or otherwise, a Washington lawyer has a duty to report to disciplinary counsel the entry of a disciplinary order in another jurisdiction.
What Is Reciprocal Discipline?
Reciprocal discipline is a public proceeding against a lawyer who has been disciplined in another jurisdiction to impose corresponding discipline in Washington. Because reciprocal discipline is a public proceeding, the record and nature of the discipline in the other jurisdiction become available in Washington when the proceeding is initiated. The rules governing reciprocal discipline make it unnecessary to relitigate a complaint that has been fully and finally litigated in another jurisdiction.1
In Washington, Rule 9.2 of the Rules for Enforcement of Lawyer Conduct (ELC) provides that disciplinary counsel must obtain a certified copy of a disciplinary order when notified from any source that a lawyer admitted in Washington was disciplined in another jurisdiction. Upon receipt of the disciplinary order, disciplinary counsel must file the order with the Washington State Supreme Court.
When the Supreme Court receives a certified copy of a disciplinary order, it orders the respondent lawyer to show cause why it should not impose the identical discipline. With some exceptions, a final adjudication in another jurisdiction that a lawyer was guilty of misconduct conclusively establishes the misconduct for the purposes of a disciplinary proceeding. The Supreme Court will impose identical discipline against the lawyer unless the lawyer or disciplinary counsel demonstrates, or the Supreme Court finds, that there was a procedural irregularity or infirmity in the underlying proceeding, or other reason as described in ELC 9.2(e)(1), that identical discipline would be inappropriate.
Federal Courts Are “Another Jurisdiction” for Purposes of Reciprocal Discipline
The Washington State Supreme Court has imposed reciprocal discipline based on disciplinary orders from a number of states (Alaska, Arizona, California, Colorado, Hawaii, Illinois, Massachusetts, Michigan, Montana, New Hampshire, New Jersey, Oregon, Rhode Island, Wyoming), from the Commonwealth of the Northern Mariana Islands, and from British Columbia. The Supreme Court also reciprocated discipline based on an order in a military tribunal.
In proceedings in 2005, the Washington State Supreme Court reciprocated discipline based on a disciplinary order suspending a lawyer from practice in the United States District Court for the Western District of Washington. Although the federal district court disciplinary order pre-dated more comprehensive local rule changes in the Western District for the handling of the investigation and prosecution of disciplinary proceedings (as discussed below), the order was sufficient basis for the Supreme Court to reciprocate discipline from “another jurisdiction.” Recently, proceedings for reciprocal discipline were initiated in a second case based on a disciplinary order in the Western District.
Recent Changes to GR 2(f) in the Western District of Washington
The United States District Court for the Western District of Washington’s General Rule (GR) 2, entitled “Attorneys,” governs professional conduct, reporting obligations, procedures, and due process rights in disciplinary actions. Enacted in 1992 and amended in 1994, 1997, 2002, and 2005, the rule has been reviewed and modified over the years, but GR 2(f) received its most significant facelift in 2005.2 The changes to GR 2(f) include several new explanatory categories (grounds, types of discipline) and specifics on the handling of grievances and initial investigations, appointment of special disciplinary counsel, immunity, notice and hearing, confidentiality, imposition of discipline, and reciprocal discipline.
Although the old rule briefly discussed the consequences and rights of an attorney facing disciplinary action before the court, it did not expound on the various grounds for discipline and the attorney’s rights in such proceedings. The 2005 rule, however, plainly lists all of the grounds on which an attorney may be subject to disciplinary actions and the attorney’s procedural rights. The attorney discipline section includes a list of sanctions (disbarment, suspension, interim suspension, reprimand, admonition, probation, restitution, payment of fines/costs, referral to another appropriate disciplinary authority) and Standards of Professional Conduct (the District’s Local Rules, the Rules of Professional Conduct, Federal Rules of Civil and Criminal Procedure, General Orders of the Court). Grounds for discipline include violations of the Standards of Professional Conduct, discipline by another authority, conviction of a felony or a misdemeanor involving dishonesty or corruption,3 and misrepresentation or concealment of a material fact made in an application for admission to the court, or in a pro hac vice or reinstatement application.
Reciprocal Discipline: Reporting Responsibilities for Attorneys Who Practice in the Western District
Similar to ELC 9.2, GR 2(f) provides that a lawyer disciplined elsewhere can be disciplined in the Western District. The reciprocal discipline section of GR 2(f) incorporates discipline by any other jurisdiction, which includes “any federal or state court, bar association or other governing authority of any state, territory, possession, or the District of Columbia, or any other governing authority or administrative body which regulates the practice of attorneys.” An attorney subject to the disciplinary jurisdiction of the court in the Western District has an affirmative obligation to provide the clerk of the court with a copy of the other jurisdiction’s disciplinary letter, notice, or order. For purposes of the reciprocal discipline section, discipline refers to disbarment, suspension, or disciplinary action that temporarily or permanently deprives an attorney of the right to practice law. In addition, if an attorney resigns from the Bar of any other jurisdiction while disciplinary proceedings are pending in that jurisdiction, the attorney must notify the clerk of the court.
Conduct in Federal Court That Could Lead to Discipline and Reciprocal Discipline
Among other things, GR 2(f) contains Standards of Professional Conduct that must be followed. There are a number of unique aspects to federal practice which, if not understood, could lead to violations of those standards, discipline in federal district court, and subsequent reciprocal discipline by the Washington State Supreme Court. Two of these aspects (involving local counsel assignments and declarant signatures) related to practice in the Western District of Washington are highlighted below.
Local counsel practice has become an ever-growing need as matters in the Western District of Washington increase in complexity, size, and geography. Before accepting a local counsel assignment, lawyers should be aware of the obligations imposed by the Western District’s Local Rules. GR 2 imposes specific obligations on a lawyer who agrees to act as local counsel for a foreign non-admitted lawyer in a specific case. GR 2(d) requires the local counsel (and not the pro hac vice admitted counsel) to “sign all pleadings” that are filed with the court and to comply with Civil Rule (CR) 10(e).4 Because local counsel is required to sign all filed pleadings, it becomes local counsel’s responsibility to ensure compliance with rules like Federal Rule of Civil Procedure (Fed. R. Civ. P.) 11 and Local Civil Rule 37.
An example of the importance of this obligation on local counsel involves discovery of electronically stored information (ESI). Typically, the lawyer with the primary client relationship manages the discovery process. However, in a local counsel setting, the ESI discovery process might not be managed by the local counsel but by the pro hac vice counsel who presumably has the primary attorney-client relationship. Nonetheless, it is the local counsel’s responsibility under GR 2(d) to ensure that the pro hac vice counsel complies with the federal rules regarding ESI, and local practice on discovery. In a recent case, a federal district court imposed sanctions under Fed. R. Civ. P. 26(g) and 37 against a lawyer and his client for failure to produce ESI in a timely manner. See R&R Sails, Inc. v. Ins. Co. of Pa., 2008 WL 2232640 (S.D. Cal. April 18, 2008). The district court ordered the defendant either to produce certain documents or to submit a sworn declaration that the records did not exist. The defendant submitted a sworn declaration from a senior employee stating that the specific documents did not exist, but the statement was inaccurate. If facts similar to R & R Sails are presented in a matter in the Western District with local counsel representation, local counsel could be accountable under GR 2(d).
In another aspect of local federal practice, pleadings are filed easily through the Western District’s Electronic Case Filing (ECF) system. It has now become commonplace to secure “electronic signatures” from declarants, which are viewed as originals when filed with the court. However, under the court’s ECF guidelines, the filing party must keep the paper document with “original” signatures for the duration of the case and any appeals. A responding party can object to the authenticity of the declaration, or the authenticity of the signature, within 10 days of filing.5 Securing the original signed declaration at the time of filing ensures that the lawyer submitting the declaration has been candid with the court and opposing counsel in terms of having an original signed declaration. By contrast, failure to secure the original signature could lead to claims that a declaration was submitted without the authority of the declarant and could lead to action against the lawyer, including disciplinary action by the court.
Conclusion
The local federal rules concerning lawyer discipline have changed considerably in recent years. Lawyers should be aware that misconduct in federal district court may be treated for disciplinary purposes like misconduct committed by the lawyer in another state. In addition to discipline in federal district court, the misconduct can lead to reciprocal discipline by the Washington State Supreme Court.
Felice Congalton is senior disciplinary counsel with the Washington State Bar Association and a member of the Ethics and Practice Committee of the Federal Bar Association for the Western District of Washington. Joanna Plichta is pro bono legal counsel at Foster Pepper PLLC, a member of the Ethics and Practice Committee, and co-chair of the Website and Communications Committee. Alex Baehr is a partner at Dorsey & Whitney LLP and co-chair of the Ethics and Practice Committee.
NOTES
1. In re Disciplinary Proceeding Against Dann, 136 Wn.2d 67, 85-86, 960 P.2d 416 (1998) (quoting In re Disciplinary Proceeding Against Immelt, 119 Wn.2d 369, 371, 831 P.2d 736 (1992)).
2. The rule has increased from one-and-a-half pages to more than five pages and contains many more detailed explanations.
3. This includes those matters listed in ELC 7.1(a)(2)(B)–(C).
4. CR 10(e) imposes formatting obligations for all pleadings submitted in the Western District, which are familiar to those lawyers who practice regularly in the Western District but possibly new to lawyers admitted pro hac vice. It remains the local counsel’s obligation to ensure compliance with this rule, regardless of whether pro hac vice counsel files the at-issue pleading.
5. See United States District Court, Western District of Washington ECF User’s Manual at 21–22.
