Lawyer Watchdog Fight Debated in 9th Circuit

(CN) - A lawyer disciplined by the Washington State Bar told the 9th Circuit that he was subjected to unfair procedures that violated his due-process rights.

The disciplinary board suspended attorney Stephen Eugster from practice for 18 months after concluding in 2009 that he violated the rules of professional conduct in filing a guardianship petition against his former client without any investigation as to her alleged incompetency.

The board also said Eugster failed to abide by the objectives of the representation.

Eugster faced an unrelated complaint that was dismissed the same year, but the bar decided to keep a letter about the action on file for the next five years.

In a 2010 federal complaint, Eugster said that Washington's attorney-discipline system violates due-process rights under the Fifth and 14th Amendments.

Eugster dropped his claim to void the disciplinary judgments and orders against him, and sought to challenge the constitutionality of the "rules, customs and practices" in Washington's disciplinary system.

U.S. District Judge Stephen McNamee dismissed the complaint for lack of standing because Eugster filed to demonstrate he suffered "an actual or imminent injury in fact."

McNamee also granted the Washington State Bar immunity under the 11th Amendment and said that the Washington Supreme Court Justices have legislative immunity. He declined to determine whether the bar's Board of Governors are entitled to quasi-judicial immunity in their individual capacities.

In oral arguments before the three-judge panel last week, Eugster said that the only way to test the bar's disciplinary system was to file a petition with the Supreme Court.

"The likelihood of getting a petition granted is less than almost nil," he said.

Eugster added that his complaint concerns the constitutionality of the bar disciplinary process, which he hopes to divest from the bar association.

Judge Milan Smith said the court has to look at the legal points and not "talk policy."

"How can you show that there is a very significant possibility that you will be part of the same process all over again?" he asked. "I would assume you would try to avoid disciplinary processes again in light of your delightful experience before."

Someone could always file a grievance with the bar, Eugster said. He also argued that the bar essentially "admonished" him without giving him a chance to respond by order five-year preservation of the second complaint against him.

Eugster complained that there was "no way" to get a federal court to look at the constitutionality question.

"I've give you reasons why you can be the first real court in the country that actually takes a look at the bar disciplinary process and makes it an independent process like it is, for example, in California," Eugster said.

Judge Stephen Reinhardt asked how a federal court could review the bar association's proceedings.

Bill Clark, representing the Washington Supreme Court Justices, said that a suit could proceed under the Ex parte Young exception, a doctrine derived from the U.S. Supreme Court case in which the justices said state officials could face federal lawsuits, despite immunity, when the state acted unconstitutionally.

Clark said Eugster required "an awful lot more ammunition" for his case to prove the disciplinary methods are unconstitutional.

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