The American version of the Briginshaw standard of proof

In a stinging dissent against the conclusion of a majority of the Supreme Court of Washington that a lawyer had breached a conflict of duties rule in representing multiple parties, one judge set out what sounds a lot like the US version of the Briginshaw standard of proof which prevails in Australian and English disciplinary hearings, at least in relation to serious allegations of wrongdoing. The case is In re Discipline of Marshall. Hat tip to Legal Profession Blog for bringing the case to my attention. The majority judgment is here. The dissenting opinion is here. It said:

‘We presume any licensed and practicing attorney maintains the high morals of the profession: In re Discipline of Little, 40 Wn.2d 421, 430, 244 P.2d 255 (1952). This presumption is only rebutted when facts are proved beyond a clear preponderance of the evidence: In re Disciplinary Proceedings Against Allotta, 109 Wn.2d 787, 792, 748 P.2d 628 (1988). Indeed, we have a constitutional obligation to ensure no attorney is unduly deprived of his property or liberty interests in his professional license: Bang Nguyen v. Dep’t of Health, 144 Wn.2d 516, 522 n.4, 29 P.2d 689 (2001) (“[A] professional license represents a property interest to which due process protections apply.”). Challenged findings of facts must be supported by substantial evidence, which incorporate this heightened burden of proof: In re Disciplinary Proceedings Against Poole, 156 Wn.2d 196, 209, 125 P.3d 954 (2006). Nevertheless these findings cannot be conclusory, but must set forth specific facts demonstrating a clear violation of the Rules of Professional Conduct: Id. (“Thus, a clear preponderance of all the facts proved must support a finding of misconduct.”).’

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