Can a head prosecutor require approval before a deputy files a bar complaint against another lawyer?

Plain-English summary

The inquiry concerned an elected prosecuting attorney's requirement to approve all bar complaints. The committee drew a line between review and approval. It concluded that an elected prosecuting attorney may reasonably and ethically require that the prosecutor review all complaints of professional misconduct before they are filed with the WSBA.

However, the committee concluded that it would violate RPC 5.2(a) and 8.3(a) to require the elected prosecutor's approval of the complaint as a condition precedent to its filing by the deputy under the deputy's own name. The committee explained that if the deputy has submitted what the deputy reasonably believes is a valid complaint of unprofessional conduct and the elected prosecutor directs the deputy not to file it, it would be a violation of RPC 5.2(a), by both the prosecutor and the deputy, to prevent the deputy from filing the complaint.

Currency note

This opinion was issued in 1999, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's RPC 5.2 (responsibilities of a subordinate lawyer) and RPC 8.3 (reporting professional misconduct) correspond to ABA Model Rules of the same numbers and were addressed in the 2006 revisions, so verify the current rule text before relying on it.

Common questions

Q: Can a head prosecutor require that the office review bar complaints before filing?

A: The committee concluded an elected prosecuting attorney may reasonably and ethically require the prosecutor to review all professional-misconduct complaints before they are filed with the WSBA.

Q: Can the head prosecutor require approval as a condition of filing?

A: No. The committee concluded that requiring the elected prosecutor's approval as a condition of the deputy filing under the deputy's own name would violate RPC 5.2(a) and 8.3(a).

Q: What if the prosecutor tells a deputy not to file a complaint the deputy believes is valid?

A: The committee said directing the deputy not to file such a complaint would violate RPC 5.2(a), by both the prosecutor and the deputy, by preventing the deputy from filing.

Background and rules framework

The opinion applied Washington RPC 5.2(a) (responsibilities of a subordinate lawyer, which provides that following a supervisor's direction does not excuse a clear rule violation) and RPC 8.3(a) (reporting professional misconduct), corresponding to ABA Model Rules 5.2 and 8.3. The committee distinguished a permissible review requirement from an impermissible approval-as-precondition requirement, locating the violation in the supervisor's interference with the deputy's own reporting obligation.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 5.2 (responsibilities of a subordinate lawyer); Washington RPC 5.2(a)
• ABA Model Rule 8.3 (reporting professional misconduct); Washington RPC 8.3(a)

See also

• WA Ethics Op. 1851: Duty to Report Another Lawyer
• WSBA Ethics Op. 1247: Reporting vs Client Secret
• WA Ethics Op. 1593: Reporting Out-of-State UPL

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1051

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1858
Year Issued: 1999
RPC(s): RPC 5.2; 8.3(a)
Subject: Prosecuting attorney’s requirement to approve all bar complaints

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry #1858 concerning a prosecuting attorney’s requirement to approve all bar complaints.

The Committee has reviewed your inquiry and determined that the following:

While an elected prosecuting attorney may reasonably and ethically require the deputy prosecutor to have reviewed by the prosecutor all complaints of professional misconduct before filing with the WSBA, it would violate RPC 5.2(a) and 8.3(a) to require the elected prosecutor’s approval of the complaint as a condition precedent to its filing by the deputy under his own name. In other words, if the deputy having submitted what the deputy reasonably believes is a valid complaint of unprofessional conduct and the elected prosecutor directs the deputy not to file it, it would be a violation of RPC 5.2(a) both by the prosecutor and the deputy to prevent the deputy from filing the complaint.