Bannister, Matter of

• Decision Date: 04 December 1975
• Docket Number: No. 43684,43684
• Citation: 86 Wn.2d 176,543 P.2d 237
• Parties: In the Matter of Harwood BANNISTER, Attorney at Law. *
• Court: Washington Supreme Court

Page 176

86 Wn.2d 176

543 P.2d 237

In the Matter of Harwood BANNISTER, Attorney at Law.

^*

No. 43684.

Supreme Court of Washington, En Banc.

Dec. 4, 1975.

Schweppe, Doolittle, Krug, Tausend, Beezer & Beierle, Alfred J. Schweppe, Seattle, for petitioner.

Washington State Bar Ass'n, Douglas C. Baldwin, Gen. Counsel, Seattle, Paul N. Luvera, Jr., Mount Vernon, for respondents.

HOROWITZ, Associate Justice.

This is a petition for investigation of claimed professional misconduct and its inadequate investigation under the Discipline Rules for Attorneys, filed in this court as an original proceeding. The petition prays the Washington State Bar Association, its Disciplinary Board and attorney Harwood Bannister, a member of the bar of this state, show cause why this court should not order an independent investigation to be made of certain claimed grievances against Mr. Bannister. The petition resulted in the issuance by the Acting Chief Justice of this court of an order requiring respondents to show cause why the relief requested should not be granted.

The record before us shows virtually no disagreement concerning the procedure used to investigate and process the complaints of the grievances described in the petition. However the respective parties differ in important respects on whether the claimed grievances are factually justified and whether there is any justification for the imposition of discipline under the Discipline Rules for Attorneys.

At this juncture it would be premature to determine the merits of the grievances claimed and we do not do so. The record is sufficient, however, to enable us to deal with certain legal issues we must determine to rule on the petition. These issues are: (1) the petitioners' standing to invoke this court's jurisdiction to grant the relief claimed; (2) the power of this court to grant such relief; and (3) whether the power, if it exists, should be exercised. We answer each question in the affirmative and grant the relief claimed but in the manner later described.

The petition states Lucille Dodd and Maryl Livingston are the surviving daughters of the late John W. Brisky, an attorney-at-law of Mount Vernon, Washington, who died February 16, 1962. Mr. Brisky left a will. In that will he named his widow, Ella, as executrix and except for a nominal bequest to each of his daughters--petitioners here--he left his entire estate to his widow. The latter retained Harwood Bannister of Mount Vernon, Washington, to probate the decedent's estate. The probate administration of the estate was closed on May 15, 1963. Mrs. Brisky died about 10 years later.

On July 24, 1972, petitioners wrote a letter to the Washington State Bar Association charging Mr. Bannister with professional misconduct. After various steps were taken by the Bar Association, later briefly described, petitioners on March 24, 1975, filed the instant petition. The petition describes four specific grievances based on events occurring in the course of the probate proceedings in the John W. Brisky estate.

The following matters--essentially undisputed--should be borne in mind in order to understand the legal issues involved. Following petitioners' letter of July 24, 1972, the claimed grievances were assigned for investigation to Mr. Theodore D. Zylstra, an attorney in Oak Harbor, Washington, as a member of the Local Administrative Committee for Skagit-Island Counties, Washington. The record does not show who made the assignment for investigation. See Discipline Rules for Attorneys (DRA 2.1.) Thereafter petitioners cooperated with Mr. Zylstra and gave him all the information of which they had knowledge. There is no claim petitioners withheld their cooperation as contemplated by DRA 2.7.

Later Mr. Zylstra prepared and filed a 'Report of Local Administrative Committee' stating therein he found 'no facts to indicate that the complaints are well founded' and recommended the proceedings be dismissed. The report appears to have been sent by Mr. Zylstra to Mr. George E. McIntosh, Chairman of the Local Administrative Committee. By letter to the Washington State Bar Association, dated April 3, 1973, with notation thereon of copy to Mr. Zylstra, Mr. McIntosh stated his total concurrence with the findings and recommendation. There is no showing that a third member of the Local Administrative Committee had been appointed or functioned in the committee's work. There is no showing the two members who did function ever conferred or met to consider, analyze and evaluate the adequacy of the investigation, the correctness of the report and its recommendation, and then agreed thereon.

By letter dated April 11, 1973, from the association's executive director, to Maryl Livingston, the director generally summarized Mr. Zylstra's report and stated his conclusion 'the facts do not merit disciplinary action' by the association. Petitioners were dissatisfied with the letter and they thereupon sought legal advice from private counsel whom they then retained. Petitioners' counsel, in his capacity as such, later formally requested the association reopen the Bannister case to examine four described specific grievances. Subsequently the Disciplinary Board met twice and considered the Zylstra report. On each occasion the Disciplinary Board agreed the complaints against Mr. Bannister be dismissed. Petitioners' counsel was so notified. Petitioners' counsel then requested an opportunity to appear before the Disciplinary Board. This request was denied on the ground the rules did not provide for such personal appearance. Petitioners' counsel then requested an opportunity to appear before the Board of Governors of the association. The president wrote, denying the request, explaining the board had no right or responsibility to review the decisions or recommendations of the Disciplinary Board.

Finally, at petitioners' request, petitioners' counsel wrote Mr. Bannister on December 17, 1974, detailing the history of the handling of petitioners' complaints and requesting a conference with Mr. Bannister 'for final consideration and action.' It stated, in substance, that if Mr. Bannister was unwilling to confer or if the conference did not prove sufficiently productive, counsel would have no alternative but to file a petition for investigation in the Supreme Court as he had previously indicated would be done in an earlir letter dated October 25, 1973, to the chairman of the Disciplinary Board.

Mr. Bannister, although at first inclined to have such a conference, ultimately decided not to do so. ¹ Petitioners then filed the instant petition and obtained the show cause order above-described.

In general, each respondent takes the position the grievances have been thoroughly investigated and found to be without merit--and the court therefore should order this proceeding dismissed. Respondent Bannister denies any wrongdoing. By separate affidavit he has responded in detail to two of the four items of grievances the petition describes. The remaining two items are not specifically discussed. Overall, as pointed out, the record indicates sharp differences both of fact and law exist between the petitioners on the one hand and respondents on the other.

The present Discipline Rules for Attorneys (effective February 3, 1975) as well as the prior rules, have been promulgated for the purpose of investigating and processing charges of professional misconduct against members of the bar of this state. ² The Board of Governors has been granted broad power and overall responsibility to see to the proper discharge of the duties of those involved in the investigation of complaints of the professional misconduct lodged against a member of the bar of this state. DRA 2.4(f)(4). The Board of Governors must appoint the members of the Local Administrative Committee. DRA 2.1(a). That board has general responsibility for the proper discharge of the committee's duties. DRA 2.4(f)(4) and DRA 2.1(c). Because the investigation report of the Local Administrative Committee 'shall form a part of the permanent records of the Association and may be used as a basis for the commencement of disciplinary proceedings' (DRA 2.1(c)(2)(ii)), the importance of the supervising responsibility of the Board of Governors and of the Disciplinary Board later described is great indeed.

DRA Rule 2.1 governs the creation, purpose and operation of the Local Administrative Committee. DRA 2.1(a) provides:

The Board of Governors shall appoint a Local Administrative Committee consisting of three or more members in each county or district as herein defined.

Like provision was in effect in the 1972--1975 period preceding the present 1975 rule. DRA 2.1(a) (1969) (1973). Each committee member must have three qualifications: residence in the county or district of the committee, active Bar Association membership, and, since the 1975 rules, at least 5 years of practice as an attorney. DRA 2.1(a).

The committee's duties are to investigate each alleged or apparent violation of the rules of professional conduct coming to its attention, and to submit a report on each investigation to the Disciplinary Board within 30 days unless extended. DRA 2.1(c); and DRA 11.1(d). Even if the matter in question is settled by the parties involved before the committee can begin or finish its investigation, a complete investigation and report is still required. DRA 2.1(e)(2); and DRA 11.1(d).

The committee may make a conditional disposition of a complaint of a trivial nature. This disposition becomes final unless the Disciplinary Board acts otherwise within 60 days of receiving the committee's report on the investigation and disposition of the complaint. DRA 2.1(e)(1) and DRA 11.1(d).

The Disciplinary Board has the discretion, in lieu of referring a matter to a particular Local Administrative Committee, to appoint a special committee composed of members chosen from different Local Administrative Committees to conduct the investigation....