Guerrilla Disbarment: An Unusual Tactic for the Removal of Opposing Counsel
By Stephen Seely, Outreach Services Attorney
Years of working in the law library means being on the receiving end of unusual research questions, reviewing many aspects of Washington law, and uncovering some truly bizarre legal outcomes. One discovery that has stuck with me is this: an unwary lawyer can be tricked into accepting an award and forfeiting their right to practice law.
It nearly happened to a Special Deputy Prosecuting Attorney in 1963. A grand jury had been convened in Snohomish County for the purpose of deciding whether the Snohomish County Sheriff should be indicted for willful neglect of duty for not shutting down a brothel. A lawyer living in King County was appointed as a Special Deputy Prosecuting Attorney to assist with the investigation and presentation to the grand jury.
After an indictment and a conviction, the defendant appealed to the Washington State Supreme Court. On appeal, the appellant argued that the indictment should be set aside because of the presence of an unauthorized person during the grand jury proceedings. The appellant argued that the Special Deputy Prosecuting Attorney was not authorized to be present during the grand jury proceedings because he was ineligible to practice law after he had been named and commissioned as an Honorary Deputy Sheriff by the King County Sheriff, 35 days before the grand jury was convened.
A person who is commissioned as a sheriff is not permitted to practice law in Washington. And no sheriff is allowed to appear or practice as an attorney, except in their own defense.
The Court took a keen interest in the issue. Presumably, they were not thrilled with the idea of a county sheriff being able to “disbar” any lawyer in the state at-will:
The result of a holding that a sheriff does have the power to deprive an attorney of his right to practice law, simply by issuing to him a commission and enrolling him as a deputy, would be that attorneys would be placed at the mercy of their respective county sheriffs. The court depends a great deal upon lawyers as a class, if not always as individuals, and is naturally inclined to take a protective attitude toward them, so long as the public is not harmed thereby. The right to practice law is a valuable right, even if it is only a privilege, and it will not be assumed that an attorney will abandon it lightly.
After a review of the record, the Court noted that the record was silent on whether the Special Deputy Prosecuting Attorney had accepted the commission; and they used this to eke out a narrow escape. To protect lawyers from summary disbarment “. . . at any moment by a sheriff who may happen to have a grudge. . . ,” the Court held that if a sheriff were to issue a commission to a lawyer, the lawyer could avoid being “disbarred” by not affirmatively accepting the commission.
This leads to an interesting method of guerrilla disbarment. If it becomes convenient to remove a lawyer from practice without much oversight or recourse, all it would take is the offer and acceptance of an award making the lawyer an honorary member of law enforcement, in recognition of their work on behalf of the community. Everyone loves to be recognized for their work and very few people are likely to criticize someone for offering an award or recognition; why look a gift horse in the mouth? Unfortunately, for the unwary lawyer, this horse bites.
If you have questions about the best ways to research unusual or uncommon areas of Washington law, feel free to contact the King County Law Library at firstname.lastname@example.org. We’d be happy to offer insights into research strategies, to direct you to helpful resources, or do the research for you (for our law library subscribers, for a fee) to let you know what’s out there.
Stephen Seely is the Outreach Services Attorney at the King County Law Library. He is licensed to practice law in Washington and before the U.S. Supreme Court.