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P. Simmons
P. Simmons, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 34312
Experience:  16+ yrs. of legal experience.
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I am filing a Bar Association complaint against an attorney

Customer Question

I am filing a Bar Association complaint against an attorney who practices in the state of Washington. Their rules say, "Counsel for the Washington State Bar Association  has the burden of establishing an act of attorney misconduct by a 'clear preponderance of the evidence.'" I live in California and have never heard that term, nor has a judge friend of mine in Colorado. "IN RE: the DISCIPLINARY PROCEEDING AGAINST Stephen C. HASKELL" goes on to say, "A "clear preponderance of the evidence" is an intermediate standard of proof, requiring greater certainty than ‘simple preponderance’ but not to the extent required under ‘beyond reasonable doubt.’   This intermediate standard reflects the unique character of disciplinary proceedings.   The standard of proof is higher than the simple preponderance normally required in civil actions because the stigma associated with disciplinary action is generally greater than that associated with most tort and contract cases.   Yet because the interests in protecting the public, maintaining confidence, and preserving the integrity of the legal profession also weigh heavily in these proceedings, the standard of proof is somewhat lower than the beyond reasonable doubt standard required in criminal prosecutions."
JA: The Consumer Protection Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: Yes, I have, Albert Marmero, but he gave me very little information, other than to refer me to the case. I want to know enough about the burden of proof so that I can write my complaint strong enough to pass the test. I asked Albert a follow-up question, but he is not answering me. --Mark
JA: What advice did they give you?
Customer: Essentially what I just typed you from the case on file. It's too vague to help me write my complaint.
JA: Is there anything else the Consumer Protection Lawyer should be aware of?
Customer: Just that I asked him to clarify the meaning of "CLEAR preponderance." How much more than "preponderance" is that? Is it almost to "Beyond a reasonable doubt?" In that case, I won't bother, because nobody can write a complaint about a lawyer that reaches that standard of BOP.
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Consumer Protection Lawyer about your situation and then connect you two.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  P. Simmons replied 1 year ago.
Hello! My name is ***** ***** I am a licensed attorney with more than 18 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to helpAlso, if you would like to chat on the phone, let me know and I can make that happen. This standard is a "middle ground" standard.It is not as high as the criminal standard of "beyond a reasonable doubt" but it is higher than "preponderance" (more likely than not).But, frankly, these standards are all subjective...they mean what they mean to the trier of fact (the one making the decision)...no more, no less. Still, this standard "clear preponderance" (some states use the term "clear and convincing") is not as high as the criminal standard...so easier to prove the case. It may help to know that this standard is used in every state for cases where a court is considering terminating parental rights. So the standard is higher than for a civil trial, but lower than for a criminal trialPlease let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.
Customer: replied 1 year ago.
Philip--Ah, you said the magic words! I had thought 4 levels existed (which really had me confused), but you've led me to think only 3 levels exist, namely:1. "Preponderance of the evidence" (>50% certain, or "more likely than not"). Used in almost all civil trials.2. "Clear preponderance of the evidence," or in California called "clear and convincing," or in Washington called "clear, cogent, and convincing," used for terminating parental rights (a permanent change), or establishing a guardian over an adult (which takes away some of his civil rights), or disciplining an attorney (because the stigma is great).3. "Beyond a reasonable doubt" (no plausible reason exists to believe otherwise), used in criminal proceedings, which metes out severe punishment on the accused, possibly even the death penalty.But as you said, the judge has some leeway (if he is the trier of fact) or in instructing the jury (if they are the trier of fact).Is this description correct, as you understand it?Thanks.--Mark
Expert:  P. Simmons replied 1 year ago.
There are three levels. The first and third have the same name in every state. The middle standards name does vary state to state. And yes...the judge has leeway here...or, at least, the judge will decide how to apply the standard based on the facts presented.