Last summer in a decision, which I think shows a lack of compassion and understanding, Justice Fairhurst of the Washington Supreme Court, along with other justices, ordered the disbarment of Rosaura Del Carmen Rodriguez. Ms. Rodriguez, a young and inexperienced lawyer just starting out in her career, made some mistakes. Justice Fairhurst and other justices on the court saw fit to bring her career to an abrupt and final end. In the Matter of the Disciplinary Proceeding Against Rosaura Del Carmen Rodriguez, 177 Wn.2d 872, 306 P.3d 893 (2013).
Justice Gonzalez, joined by justices James M. Johnson and Tom Chambers, disagreed. The court’s draconian result was not right. He and the other justices expressed understanding and compassion. He would have protected the public and have caused Ms. Rodriguez to be disciplined by suspension from the practice of law for three years.
This result would have been a positive step in the discipline of a young attorney and a positive step for the court for it needs, in my opinion, to act with more wisdom and restraint. For example see In re Proceeding Against Ferguson, 246 P. 3d 1236, 246 P.3d 1236 (2011) (lawyer suspended afer costly trial and appeal for engaging in actions which are often mistakenly engaged in in Superior Court); In the Matter of Disciplinary Proceeding Against Scannell, 169 Wash. 2d 723, 239 P. 3d 332 (201)(lawyer disbarred for being “irksome” – Justice Gerry Alexander dissenting)
It is significant that almost all of the conduct by Scannell that is characterized by the majority as abuse of the discipline system is conduct that Mr. Scannell engaged in pursuant to the Enforcement of Lawyer Conduct Rules and Washington court rules. Although this activity was for the most part misguided, frivolous, and undoubtedly irritating to the bar, as well as the hearing officer and Disciplinary Board, it is apparent to me that Scannell was sincere in his efforts and was not engaging in this activity simply for the purpose of obstructing the process.
. . .
I have no doubt that this conduct was irksome
and caused the bar to view Scannell, in plain terms, as “a pain
in the neck.”
Id., 169 Wash. 2d at 749.
The disbarment of Rosaura Del Carmen Rodriguez is part of trend in Washington Supreme Court decisions concerning lawyer discipline. A trend where the court oversteps the bounds of what is necessary to properly discipline Washington attorneys.
Ms. Rodriguez found herself in a tough spot for her client, and in it she made some bad decisions. These decisions were said to amount to several violations of the Washington Rules of Professional Responsibility. (The RPC rules are notoriously elastic. A single course of conduct can amount many RPC violations in the collective mind of the WSBA discipline attorneys.)
At her trial, the WSBA hearing officer recommended suspension for two years.
On appeal, the WSBA Discipline Board, by a high majority, decided that Ms. Rodriguez should be disbarred thus bringing her short legal career to an end.
Justice Fairhurst agreed with the Discipline Board, but not only did she agree, she in essence took the stance that the court should adopt the decision of the Board because so many on the Board voted in favor of disbarment. Justice Fairhurst said,
the Board’s vote was nearly unanimous here (eight to one), and the recommendation of an almost unanimous Board deserves considerable deference. Whitney, 155 Wn.2d at 469. [In re Disciplinary Proceeding Against Whitney, 155 Wn.2d 451, 469, 120 P.3d 550 (2005)]. We therefore see no reason to depart from the overwhelming consensus of the Board in imposing disbarment as the appropriate sanction for Rodriguez’s conduct.
As Justice Fairhurst was much impressed by the high degree of agreement among members of the Board her legal reasoning amounted to fulfillment Discipline Board majority rule: The legal reasoning of the thinking as expressed in her opinion was simply this: the majority is right, the minority is wrong. This sort of decision making is based on power, not reason.
Just how much credence should the Supreme Court accord the WSBA Discipline Board? I contend that it should not be much, if it is to be anything at all. Here are some of my reasons:
First, the Board, it must be said, in reality, acts as a political body not a judicial body. It looks at the decision of the hearing officer and renders, what is, in essence, approval or disapproval. It does not engage in judicial review of the hearing officer decision. It is not independent. The impression one has is that the Board has a purpose, and that purpose is to discipline lawyers. And, that means approving what the hearing officer does because that is also the usual goal of the hearing officer.
For example, sometimes the Board will act to correct the findings of fact of the hearing officer and make its own findings of fact. It will do so even though it has not tried the facts and cannot be said to be in any way a “fact finder.” This behavior is not the proper conduct for a reviewing body.
Second, the Board acts as a prosecutorial entity. It is the entity which decides to prosecute when asked to prosecute by a WSBA discipline attorney. The Board is split into four Review Committees. It is these committees which make the decisions to prosecute. Each member of the Board has a stake in each prosecution.
The Board believes in lawyer discipline. Its members are Board members because that is their mission. The WSBA appoints the members to the board because it believes in discipline and wants Board members who, likewise, believe in discipline. Indeed, 35% of the WSBA budget, which amounts to several millions, is devoted to this function, the goal of lawyer discipline.
Third, and perhaps most important is that the WSBA Discipline Board might not have the wherewithal to function rationally. Groups such as the Board are prone to certain dynamics in their collective deliberations – dynamics, which tend to push groups in predictable directions. Cass R. Sunstein, Group Dynamics, 12 Cardozo Stud. L. & Literature 129 (2000).
The first dynamic is “group polarization” – the idea that people respond to arguments made by others. An “argument pool” in a group with some initial position will cause the group to strongly be skewed in the direction of that pool’s position. Group polarization a process that leads groups in a more extreme version of the direction indicated by their original tendency. Id.
The second dynamic is that of “social influence.” People have a certain conception of themselves and a corresponding sense of how they would like to be perceived by others. There is certainly a social influence which plays out in groups where the reason for individuals became members of the group share a certain way of thinking. Here, in the way is that of disciplining lawyers for the WSBA.
Further discussion of the group dynamics can be found in the following: Cass R. Sunstein, David Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeal: A Preliminary Investigation, 90 Va. L. Rev. 301, 319-20 (2004); On group polarization generally, see, for example, Roger Brown, Social Psychology 200-245 (2d ed. 1986); and David G. Myers, Discussion-Induced Attitude Polarization, 28 Hum. Rel. 699 (1975); On the inevitable influence of both sets of factors in most cases, see generally Richard Posner, How Judges Think (2008).