APR 19 - Lawyer Services DepartmentComments for APR 19 must be received no later than April 28, 2006.
Suggested Amendment to
ADMISSION TO PRACTICE RULES (APR)
Rule 19: Lawyer Services Department
Submitted by the Board of Governors of the Washington State Bar Association
Purpose: APR 19, adopted in 2001, relates to the functioning of WSBA's Lawyer Services Department (LaSD). The mission of LaSD as a whole is to protect the public, to assist lawyers in the performance of their duties and responsibilities in the representation of clients, to maintain and improve the integrity of the legal profession, and to promote the interests of justice. See APR 19(a). LaSD accomplishes this mission through a number of specific programs, namely, the Alternative Dispute Resolution Program, the Professional Responsibility Program, the Lawyers' Assistance Program, the Law Office Management Assistance Program, and the Lawyer-to-Lawyer Program. See http://www.wsba.org/lawyers/services/default.htm.
APR 19 includes provisions expressly authorizing the Lawyers' Assistance Program (APR 19(b)) and the Law Office Management Assistance Program (APR 19(d)). These provisions provide for the confidentiality of information obtained by staff in the course of administering those programs, and, in the case of the Lawyers' Assistance Program, exonerate those acting under the authority of the rule from liability for actions taken in good faith.
Although LaSD at present administers a Professional Responsibility Program, there is no concomitant provision in APR 19 pertaining to that program. (Paragraph (e) of APR 19, titled "Ethics Program," is at present "Reserved.") The program is staffed by professional responsibility counsel, WSBA staff lawyers with substantial experience in the field of legal ethics and professional responsibility. A key feature of the program is the Ethics Line, a WSBA telephone line dedicated to ethics inquiries. Washington lawyers with questions about the ethics of a prospective or hypothetical course of conduct may call the Ethics Line and speak directly with professional responsibility counsel, who will discuss the situation with the caller to help clarify the ethical issues involved so that the inquirer is able to make a decision consistent with applicable ethical requirements. Historically, these inquiries have concerned all aspects of the Rules of Professional Conduct, for example, handling trust accounts, maintaining client confidences and secrets, avoiding conflicts of interest, resolving problems caused by the termination of a lawyer's services, and advertising.
Ethics Line policies and procedures are governed by departmental and/or WSBA policy, but they are not formally codified in the fashion ordinarily applicable to such issues. For example, the confidentiality of Ethics Line calls is critical to the success of the program, because the risk that a lawyer might be subject to discipline or liability based on information provided in the course of obtaining guidance would loom as a significant disincentive to prospective callers. Additionally, the informal guidance provided on the Ethics Line is not designed as a substitute for the lawyer's own professional judgment. Professional responsibility counsel routinely advise callers that only informal guidance is being provided, that no legal advice is given, and that the caller is responsible for making decisions about his or her course of conduct. At present, however, there is nothing in the court rules addressing these important aspects of the Ethics Line program.
For these reasons, the Board of Governors recommends adoption of a provision parallel to APR 19(b) and (d), expressly authorizing and defining the Ethics Line component of the Professional Responsibility Program, providing for the confidentiality of a lawyer's communications to professional responsibility counsel in the course of obtaining Ethics Line guidance, and limiting the use that may be made in other contexts of information relating to Ethics Line inquiries.
Portions of the rule are considered necessary in light of the potential adoption of proposed amendments to Rule of Professional Conduct 8.3. At present, Washington lawyers have discretion to report another lawyer's professional misconduct. If the proposed amendments are adopted, RPC 8.3 will require a lawyer who knows of another lawyer's professional misconduct to inform the appropriate professional authority (i.e., the WSBA Office of Disciplinary Counsel). Because Ethics Line callers sometimes disclose acts of apparent misconduct in connection with an inquiry, and because the Ethics Line is staffed by WSBA lawyers, professional responsibility counsel would be required in some instances to file disciplinary grievances against lawyers who have called the Ethics Line seeking guidance. This is not a desirable outcome and it would have an adverse impact on the effectiveness and value of this program.
The suggested provisions are based in part on similar rules in force in Georgia (Rule 4-401, Georgia Rules of Professional Conduct and Enforcement Thereof), Kentucky (Rule 3.530, Rules of the Supreme Court of Kentucky), Illinois (Rules 601 - 606 of the Attorney Registration & Disciplinary Commission of the Supreme Court of Illinois), and New Jersey (Rule 1:19-9 of the New Jersey Rules of General Application).
In addition, paragraph (b)(3) of the existing rule, containing Exoneration from Liability provisions applicable only to the Lawyers' Assistance Program, is renumbered as paragraph (f) so that the provisions would apply to the three programs authorized by APR 19, including the Professional Responsibility Program and the Law Office Management Assistance Program. Like the Lawyers' Assistance Program (APR 19(b)) and the Mediation Program (APR 16), both of which are shielded by Exoneration from Liability provisions, the Professional Responsibility Program and the Law Office Management Assistance Program constitute discretionary Bar Association services expressly authorized by the Supreme Court. These programs are designed to provide practice assistance of high quality at no or de minimis cost to members, thereby enhancing the quality of legal services delivered in Washington and helping to improve the integrity of the legal profession. A great many of the users of these services are recently admitted lawyers and lawyers experiencing ethical or other problems that may detrimentally affect their performance and adversely affect their clients and the public. If the Bar Association is subject to lawsuits and potential liability on account of these programs, this may require the Bar Association to limit services or to offer them at a cost that would be prohibitive for many of the intended lawyer-recipients.
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