In Re Disciplinary Proceeding Against Haley
126 P. 3d 1262 (2006)
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Rule of Law:
An attorney acting pro se is considered to be "representing a client" for the purposes of RPC 4.2(a) and is therefore prohibited from directly contacting a party known to be represented by counsel. However, where this interpretation is novel and prior law was ambiguous, its application will be prospective only. A significant delay in disciplinary proceedings is a substantial mitigating factor that can reduce a presumptive sanction.
Facts:
- In 1988, attorney Jeffrey T. Haley co-founded Coresoft corporation and also served as its principal lawyer.
- Haley personally loaned Coresoft $40,000, taking a security interest that he failed to properly perfect until years later.
- In 1990, as Coresoft was failing, Haley formed a new corporation, Star Software, and acted as its attorney.
- While representing both Coresoft and Star Software, and as a creditor to Coresoft, Haley orchestrated a foreclosure sale of Coresoft's assets to Star Software to satisfy his own loan, all without obtaining informed written consent from Coresoft.
- In a separate matter, Haley sued Carl Highland, Coresoft's former CEO. After his own counsel withdrew post-trial, Haley began representing himself (pro se).
- Knowing that Highland was represented by counsel at all times, Haley sent a settlement offer letter directly to Highland on September 9, 1996.
- After being warned by Highland's counsel that his direct contact was an ethical violation, Haley again contacted Highland directly via a telephone voice message on January 31, 1997.
Procedural Posture:
- The Washington State Bar Association (WSBA) filed a disciplinary complaint against attorney Jeffrey T. Haley with a hearing officer.
- The hearing officer found Haley violated RPC 4.2(a) (improper contact) and RPC 1.7 (conflict of interest), recommending a reprimand for the former and a 60-day suspension for the latter.
- The case was reviewed by the Disciplinary Board of the Washington State Bar Association.
- The Disciplinary Board determined Haley's RPC 4.2(a) violation was knowing, not negligent, and recommended a six-month suspension for that count.
- The Board also recommended a six-month suspension for the RPC 1.7 violation, to be served concurrently with the other suspension.
- Haley, the respondent, appealed the Board's recommendation to the Supreme Court of Washington.
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Issue:
Does RPC 4.2(a), which prohibits a lawyer "in representing a client" from contacting a represented opposing party, apply to a lawyer who is acting pro se in their own legal matter?
Opinions:
Majority - Owens, J.
Yes, a lawyer acting pro se is "representing a client" for purposes of RPC 4.2(a) and is prohibited from contacting a represented party. The court determined that the rule's purpose—to protect represented parties from potential overreaching by lawyers—is best served by applying it to attorneys acting on their own behalf. However, the court found the rule impermissibly vague as applied to Haley at the time of his actions, due to the absence of prior Washington precedent and conflicting authority from other jurisdictions. Consequently, the court announced it would apply this interpretation prospectively only and dismissed the RPC 4.2(a) charge against Haley. Regarding a separate conflict of interest violation (RPC 1.7), the court reduced the presumptive sanction of suspension to a reprimand, primarily due to the substantial, near 15-year delay in the disciplinary proceedings.
Concurring - Sanders, J.
Yes, but for different reasons than the majority. The plain language of RPC 4.2(a) unambiguously exempts self-represented lawyers because they do not have a "client" in the ordinary sense. The majority creates a legal fiction to reach a preferred policy outcome. Even if the rule were ambiguous, the rule of lenity, which applies to quasi-criminal disciplinary proceedings, requires the ambiguity to be resolved in the attorney's favor. The proper course would be for the court to amend the rule's text, not to reinterpret it contrary to its plain meaning.
Concurring - Madsen, J.
Yes, the better policy is to include self-represented lawyers within the prohibition of RPC 4.2(a). However, instead of deciding the case on prospectivity grounds, the court should simply revise the rule as part of its ongoing review of the Rules of Professional Conduct.
Dissenting - Alexander, C.J.
Yes, RPC 4.2(a) prohibits pro se lawyers from directly communicating with represented opposing parties. However, the majority is wrong to apply this rule prospectively only. There is no authority for such an approach in attorney discipline cases, and the weight of authority at the time of Haley's conduct already supported this interpretation. Haley's conduct was egregious, especially because he repeated the contact after being explicitly warned by opposing counsel, and he should be suspended for the violation.
Analysis:
This case establishes a significant precedent in Washington, clarifying that the ethical prohibition on contacting a represented party extends to lawyers acting on their own behalf. By applying this new interpretation prospectively, the court emphasized the importance of due process and fair notice in attorney discipline cases, particularly when a rule's scope is ambiguous. The decision also underscores the substantial weight given to procedural delays as a mitigating factor in sanctions, which may impact the prosecution of older misconduct. The multiple opinions highlight a deep judicial divide between a policy-driven interpretation of ethical rules and a strict textualist approach.
