¶49 (dissenting) — I agree with the majority that RPC 4.2(a) prohibits lawyers who are representing themselves from communicating directly with opposing, represented parties unless they first obtain the consent of the parties’ counsel. I disagree, however, with the majority’s decision to limit application of this important rule to future violators. I know of no authority that supports imposition of a rule of professional conduct prospectively only. I believe, therefore, that this court should suspend Jeffrey Haley from the practice of law for his violation of RPC 4.2(a). The violation is especially egregious in light of Haley’s claim that he “studied the rule” before directly contacting his opposing party,13 and in view of the fact that he contacted the party a second time after the party’s lawyer warned him that doing so would violate RPC 4.2(a). Because the majority concludes that Haley should not be subjected to discipline for a violation of RPC 4.2(a), I dissent.
Alexander, C.J.¶50 The majority correctly observes that among states considering the question with which we are here presented, *352the prevailing trend has been to apply RPC 4.2(a) to attorneys acting pro se, as was Haley, and not just to attorneys representing someone other than themselves. The majority acknowledges, additionally, that in late 1996 and early 1997, when Haley twice attempted to negotiate a settlement without going through the opposing party’s lawyer, at least four jurisdictions already had concluded that RPC 4.2(a) prohibited such contacts. Yet none of the four jurisdictions mentioned by the majority applied the rule to pro se attorneys on a prospective basis only, as the majority does here. Rather, all four jurisdictions applied the rule to the facts before them, as this court should do. See Runsvold v. Idaho State Bar, 129 Idaho 419, 421, 925 P.2d 1118 (1996) (attorney reprimanded because Idaho’s version of RPC 4.2(a) “applies to prevent the pro se attorney from directly contacting a represented opposing party”); In re Segall, 117 Ill. 2d 1, 6, 509 N.E.2d 988, 109 Ill. Dec. 149 (1987) (“A party, having employed counsel to act as an intermediary between himself and opposing counsel, does not lose the protection of the rule merely because opposing counsel is also a party to the litigation. Consequently, an attorney who is himself a litigant may be disciplined . . . when, as in the case at bar, he directly contacts an opposing party without permission from that party’s counsel.”); Comm, on Legal Ethics v. Simmons, 184 W. Va. 183, 185, 399 S.E.2d 894 (1990) (attorney suspended for six months); Sandstrom u. Sandstrom, 880 P.2d 103, 109 (Wyo. 1994) (district court did not err in applying RPC 4.2 to prohibit an attorney from contacting his wife during their divorce). These four opinions, all cited by the majority, are sound and make it clear that at the time Haley engaged in the prohibited conduct, the weight of authority supported the disciplining of violators and did not even hint at the prospective-only application embraced by the majority in this case. In shielding Haley from application of RPC 4.2(a), the majority borrows from the reasoning of the Nevada Supreme Court in In re Discipline of Schaefer, 117 Nev. 496, 25 P.3d 191 (2001). There, the Nevada court declined to punish an attorney’s violation of the Nevada equivalent of *353RPC 4.2(a) because of (a) the “absence of clear guidance” from the court and (b) “conflicting authority from other jurisdictions” as to whether the rule applied to pro se attorneys. Schaefer, 117 Nev. at 512, 501. In effect, the majority establishes a new test: if there is any doubt about how a rule will be construed, a violator will not be punished. That is a dangerous message to send.
¶51 Furthermore, whereas the Schaefer court relied on due process principles articulated by the United States Supreme Court in Connally14 in applying the Nevada rule prospectively, it is worth noting that this court has never drawn from Connally the proposition that discipline is inappropriate just because a rule is being interpreted for the first time. In fact, in Haley v. Medical Disciplinary Board, 117 Wn.2d 720, 818 P.2d 1062 (1991), the only discipline case in which this court cited Connally, we affirmed sanctions against a physician for violating a statute prohibiting “ ‘moral turpitude’ ” although we recognized “uncertainties associated with” the statutory language in question. Haley, 117 Wn.2d at 740. Thus, this court has previously declined to interpret Connally in the way the Nevada court did in Schaefer and the majority does here — as if professional license holders have a due process right to avoid discipline simply because a court is newly construing the rule in question. Such an interpretation will have far-reaching impact, as many discipline cases that come before this court raise an issue of construction. In declining to sanction Haley for violating RPC 4.2(a), despite the fact that Haley had “studied” the rule and should have known that the prevailing construction prohibited his conduct, the majority suggests that questionable conduct will be tolerated as long as there is no prior Washington court decision exactly on point.
¶52 We must remember that our purpose in disciplining attorneys is to “ ‘protect the public and to preserve confidence in the legal system.’ ” In re Disciplinary Proceeding *354Against Curran, 115 Wn.2d 747, 762, 801 P.2d 962 (1990) (quoting In re Disciplinary Proceeding Against Rentel, 107 Wn.2d 276, 282, 729 P.2d 615 (1986)). In Curran, an attorney argued that he should not be punished for violating RLD 1.1(a) because, in forbidding actions that reflect “disregard for the rule of law,” the rule was unconstitutionally vague. Id. at 758. This court said, “[W]e choose to give these words a narrowing construction. . . . This law is not so vague as to be unconstitutional, given this limiting construction.” Id. We noted that “a statute will not be considered unconstitutionally vague just because it is difficult to determine whether certain marginal offenses are within the meaning of the language under attack.” Id. at 759 (citing Jordan v. DeGeorge, 341 U.S. 223, 231, 71 S. Ct. 703, 95 L. Ed. 886 (1951)). This court suspended the attorney, Curran, saying, “Standards may be used in lawyer disciplinary cases which would be impermissibly vague in other contexts.” Id. (citing Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 666, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985) (Brennan, J., dissenting)). Just as we disciplined Curran there, despite uncertainty about the rule in question, so should Haley be disciplined for violating RPC 4.2(a) in order to “ ‘protect the public and to preserve confidence in the legal system.’ ” Curran, 115 Wn.2d at 762 (emphasis omitted) (quoting Rentel, 107 Wn.2d at 282).
¶53 Curran also weighs against the position taken by Justice Sanders in his concurring opinion that attorney discipline is a punishment scheme and therefore is subject to the rule of lenity — a criminal law doctrine. We said in that case, “[T]he purposes of bar discipline do not precisely duplicate the purposes of the criminal law.” Curran, 115 Wn.2d at 762 (citing In re Disciplinary Proceeding Against Brown, 97 Wn.2d 273, 275, 644 P.2d 669 (1982)). More notably, we have said numerous times that “punishment is not a proper basis for discipline.” Brown, 97 Wn.2d at 275 (citing In re Disciplinary Proceedings Against Purvis, 51 Wn.2d 206, 223, 316 P.2d 1081 (1957)). Inin re Disbarment of Beakley, 6 Wn.2d 410, 424, 107 P.2d 1097 (1940), we said:
*355Neither disbarment nor suspension is ordered for the purpose of punishment, but wholly for the protection of the public. When a matter such as this comes before the court, the question presented is not: What punishment should be inflicted on this man? The question presented to each of its judges is simply this: Can I, in view of what has been clearly shown as to this man’s conduct, conscientiously participate in continuing to hold him out to the public as worthy of that confidence which a client is compelled to repose in his attorney?
Thus, this court has long rejected, the notion that attorney discipline is penal, and the concurrence cannot point to any discipline case in which we have applied the rule of lenity to resolve ambiguity in the attorney’s favor.
¶54 In sum, because the purpose of attorney discipline is to protect the public, it is our duty to enforce RPC 4.2(a) in this case. The majority provides no authority for applying RPC 4.2(a) to pro se attorneys prospectively only. I would apply the rule to Haley and suspend him for six months.
Fairhurst, J., concurs with Alexander, C.J.
See Br. of Resp’t Lawyer at 16: “Before contacting Mr. Highland directly, I studied the rule. Being a person of common intelligence, I relied on the plain meaning of the rule.” See also Reply Br. of Resp’t Lawyer at 10: “Counsel for the Bar Association repeatedly asserts that I did no legal research or insufficient legal research on Rule 4.2. This position could not be more wrong. I read the rule with great care before I took action.” Finally, on page 11 of his reply, Haley said, “I studied the rule and it was perfectly clear on the issue before me. Under modern rule of law, this meant that there was no reason to do more research.”
Connally v. Gen. Constr. Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322 (1926).