RPC Rules - 1.0A, 1.1, 1.2, 1.4, 1.5, 1.6, 1.10, 1.14, 1.17, 1.18, 4.4, 5.3, 5.5, 6.5, 7.1, 7.2, 7.3, 8.5

• Proposed Changes to RPC Rules - 1.0A, 1.1, 1.2, 1.4, 1.5, 1.6, 1.10, 1.14, 1.17, 1.18, 4.4, 5.3, 5.5, 6.5, 7.1, 7.2, 7.3, 8.5 (in Word Format)
• No comments are available at this time.

A. Proponent
William D. Hyslop, President
Washington State Bar Association
1325 4^th Avenue, Suite 600
Seattle, WA 98101-2539

B. Spokesperson
Jeanne Marie Clavere
Professional Responsibility Counsel
Washington State Bar Association
1325 4^th Avenue, Suite 600
Seattle, WA 98101-2539

C. Purpose

In 2013, the Supreme Court asked the WSBA to evaluate recent amendments to the ABA Model Rules of Professional Conduct (Model Rules) and to consider the amendments for possible adoption in Washington. These Model Rule amendments were adopted by the ABA House of Delegates in 2012 at the recommendation of the ABA Commission on Ethics 20/20 [hereinafter Ethics 20/20 amendments]. The WSBA referred the matter to the WSBA Committee on Professional Ethics (CPE). In March 2015, during the course of the CPE’s work, the Court adopted changes to Washington’s Rules of Professional Conduct (RPC) to harmonize the RPC with the recently adopted Rules of Professional Conduct for Limited License Legal Technician’s (LLLT RPC). The CPE consequently revised its draft proposal to reconcile the newly amended RPC with the CPE’s draft Ethics 20/20-based recommendations.

The suggested amendments being submitted to the Court, which take into account the 2015 LLLT-related amendments, are individually summarized below. In general, the WSBA recommends adoption of most of the ABA Ethics 20/20 amendments. A few modifications to the Ethics 20/20 amendments are suggested to conform to existing differences between Washington’s RPC and the Model Rules (including differences arising from the 2015 LLLT-related amendments), and in a few instances the CPE has recommended language that it concluded was an improvement on the ABA Ethics 20/20 amendments to the Model Rules.

Suggested Amendments to RPC 1.0A

The proposed changes to this RPC and its comments are taken verbatim from the ABA Ethics 20/20 changes and are part of a larger project by Ethics 20/20 to more clearly embrace electronic communication in all its forms in the provisions that relate to communications in general.

Suggested Amendment to RPC 1.1

Proposed new Comments [6] and [7] and a portion of former Comment [6] (now proposed new Comment [8]) are taken verbatim from the Ethics 20/20 amendments, with the exception of the addition of LLLTs to proposed new Comment [7]. It is proposed that LLLTs be added in the places shown to take account their advent in Washington. (Note that the phrase “law firm” which appears in Comment [7] has already been expanded in the Washington Terminology Section, RPC 1.0A(c) to encompass LLLT firms.) The proposed additions are intended, in general, to deal with the phenomenon of “outsourcing” work by lawyers and are intended to clarify how the duty of competence interrelates to such practices.

Proposed new Washington Comment [9] is intended to clarify an issue that surfaces when proposed new Comments [6] and [7] are considered carefully. If a lawyer engages the services of a lawyer to provide what are essentially nonlegal services that might be provided by nonlawyers, the CPE concluded that the fact that the engaged person is a lawyer should not bring that lawyer within the scope of this and other rules applicable to lawyers when they are practicing law, but that person’s conduct should, instead, be governed by RPC 5.3, as would that of a nonlawyer. The point is of increasing importance as lawyers who are not licensed in Washington may be engaged to provide services that would not constitute the practice of law so long as they are properly supervised by a licensed lawyer. A proposed new sentence suggested for Comment [3] to RPC 5.3 makes this same point. This comment is not based on the Ethics 20/20 amendments.

To make room for these three comments, current Washington Comment [7], which was adopted as part of 2015 RPC amendments, needs to be renumbered as Washington Comment [10].

Suggested Amendment to RPC 1.2

This proposed amendment adds a “See also” sentence at the end of Comment [1] to RPC 1.2 because Comments [6] and [10] to RPC 1.1 refer and relate to RPC 1.2. If adopted, this would require designating this comment as a “Washington revision.” It is proposed to add LLLTs to the cross reference here because they have been added to Comments [7] and [10]. This change is not based on Ethics 20/20 amendments.

Suggested Amendment to RPC 1.4

This proposed amendment adds a “See also” sentence at the end of Comment [2] to RPC 1.4 because Comments [6] and [10] to RPC 1.1 refer and/or relate to RPC 1.4. If adopted, this would require designating this comment as a “Washington Revision”. It is proposed to add LLLTs to the cross reference here because they have been added to Comments [7] & [10]. This change is not based on Ethics 20/20 amendments.

The proposed addition to Comment [4] is taken verbatim from the ABA Ethics 20/20 changes and is simply intended to make clear that the duty a lawyer has to respond to client inquiries extends beyond use of the telephone.

Suggested Amendment to RPC 1.5

This proposed amendments adds a “See also” sentence at the end of Comment [7] to RPC 1.5 because Comments [6] and [10] to RPC 1.1 refer and/or relate to RPC 1.5. It is proposed to add LLLTs to the cross reference here because they have been added to Comment [10]. This change is not based on Ethics 20/20 amendments.

Suggested Amendments to RPC 1.6

The proposed addition of new paragraph (7) to RPC 1.6(b) – disclosure of confidences to engage in conflicts screening – is taken verbatim from the Ethics 20/20 amendments, which codify an earlier ABA Ethics Opinion that found such an exception implicit in Model Rule 1.6. In order to maintain maximum structural similarity to the ABA Model Rules and its numbering system, it is suggested that the addition of this new provision be accomplished by renumbering Washington’s current paragraph (b)(7), which is not in the Model Rules, as paragraph (b)(8).

The proposed addition of new paragraph (c) to RPC 1.6 – requiring “reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidences” – is taken verbatim from Ethics 20/20 amendments and seems useful as a codification of the general state of the law.

Proposed new Comments [13] and [14], the additions to existing comment [16] (which would be renumbered as Comment [18]), and the addition at the end of existing Comment [17] (which would be renumbered Comment [19]), are all taken verbatim from the ABA Ethics 20/20 amendments, with the exception of the “see also” sentence at the end of proposed new Comment [13]. These comments are designed to elaborate on the proposed new RPC 1.6(b)(7) (conflict screening) and (c) (reasonable efforts), and the CPE concluded that they did not require revision except for the “see also” cross-reference at the end of Comment [13].

Suggested Amendments to RPC 1.10

If the CPE recommendation to renumber current comment [3] to RPC 5.3 (as Comment [5]) is accepted, then the cross reference to this comment in RPC 1.10 at the end of Comment [11] will need to be conformed.

Suggested Amendments to RPC 1.14

If the CPE recommendation to renumber current RPC 1.6(b)(7) as 1.6(b)(8) is adopted, the cross reference to 1.6(b)(7) in current Comment [4] to RPC 1.14 requires a conforming amendment.

Suggested Amendments to RPC 1.17

Several very minor modifications to Comment [7] have been taken verbatim from the Ethics 20/20 amendments, but the CPE concluded that the cross reference (in the sentence beginning “But see”) to proposed new RPC 1.6(b)(7) (relating to conflicts screening) should be moved and expanded slightly here to assist the reader. The ABA version simply says “See Rule 1.6(b)(7)” and places the cross reference at the end of the prior sentence.

Suggested Amendments to RPC 1.18

Washington’s RPC 1.18(e) codifies Model Rule 1.18, Comment [5], where the word “conversation” was replaced with the word “consultation” as recommended in the Ethics 20/20 report. The CPE recommends this change in Washington’s RPC 1.18(e) in order to take advantage of the interpretive language that has been added to ABA Comments [1], [2], and [4] to Model Rule 1.18. It is recommended that the revisions to these comments be adopted in Washington as well.

The ABA has substantially amplified Comment [2] in order to spell out what it takes to become a prospective client for purposes of Rule 1.18. It is recommended that this amplification be adopted verbatim, except the ABA term “advertising” is replaced with the word “communications.” This change to the ABA version is recommended because of the increasing use of social media and a lack of clarity as to whether such platforms involve “advertising.” Regardless of whether such communications would normally be considered advertising, if they are used to invite or request the submission of confidential information, they are within the scope of what the comment is seeking to address. So “communications” seems more appropriate here.

Suggested Amendments to RPC 4.4

The ABA has made a minor change to Rule 4.4(b) to include electronic information, and it is recommended that this change be adopted in Washington. The ABA has also amended Comments [2] and [3] to include electronic information and, in Comment [2], has explained what it means for a communication to be inadvertently sent and what metadata is. It is recommended that these changes be adopted verbatim.

Suggested Amendments to RPC 5.3

The ABA has retained former Comment [1] unchanged but moved it (and the heading) down tomake it Comment [2]. Former Comment [2] (now ABA comment [1]), has been amplified to make it clearer. It is recommended that all these changes be adopted.

The ABA has adopted two new comments to this Rule, Comments [3] and [4]. Comment [3] explains when it might be appropriate for a lawyer to associate with nonlawyers from outside the firm and explains what a lawyer’s supervision duties are. Comment [4] explains what the lawyer’s responsibilities are vis-à-vis the client when such a nonlawyer is engaged. It is recommended that these new comments be adopted verbatim, but with the addition of a sentence at the end of proposed Comment [3] (not found in the ABA Model Rules) referencing proposed Washington Comment [9] to RPC 1.1 (also not found in the Model Rules) to coincide with the point explained in the proposed Comment to Rule 1.1 relating to use of outside lawyers to provide nonlegal services. This change would require re-designating this as a “Washington Revision.”

The Court has recently adopted a new Washington Comment [3] to Rule 5.3 to the effect that a lawyer’s supervision duties with respect to an LLLT are governed by Washington RPC 5.10, rather than by RPC 5.3. This comment will need to be renumbered as Comment [5] to account for the incorporation of Model Rule Comments [3] and [4], as proposed. It is recommended that the phrase “acting as such” and additional content and cross references be adopted in renumbered Comment [5], to reinforce the distinction between conduct that requires a license and conduct which does not require that license. It also reinforces the distinction now proposed to be made in Comment [9] to Rule 1.1 between a lawyer engaged in conduct requiring the lawyer’s license, and a lawyer engaged in conduct that does not (i.e., delivery of “nonlegal services”).

Suggested Amendments to RPC 5.5

The ABA has added language to Model Rule 5.5(d) (in house counsel and practice permitted by federal law) which adds “foreign lawyers” to the scope of the rule. It is recommended that these amendments be adopted verbatim. But other Model Rule amendments required several changes and some reorganization in order to reconcile new Model Rule 5.5 with the changes previously made to this rule in Washington, particularly as they relate to practice by in-house counsel not generally licensed in Washington. The differences between Model Rule 5.5(d) and Washington’s RPC 5.5(d) are complex. In brief, the explanation for the departure from the Model Rule approach is as follows.

First, the Ethics 20/20 amendments added language to Model Rule 5.5(d) and a new 5.5(e) to include foreign lawyers within the scope of the rule. The ABA Model Rule additions are underlined below, and the deletions are stricken out:

(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:

(1) are provided to the lawyer’s employer or its organizational affiliates and are (i) provided on a temporary basis and (ii) not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on the law of this or another jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

(2) are services that the lawyer is authorized to provide by federal law or other law or rule to provide in of this jurisdiction.

(e) For purposes of paragraph (d), the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority.

The language amplifying the rule to embrace foreign lawyers is recommended for adoption, but excluding the Model Rule language “through an office or other systematic and continuous presence” because it would conflict with the “temporary” practice limitation applicable to “house counsel” in Washington. Washington makes the house-counsel exception for practice without a Washington license available only on a temporary basis, whereas the Model Rules exception authorizes a continuous and systematic presence by non-licensed house counsel (subject to possible registration requirements imposed by state law). Accordingly, the ABA language has been modified to preserve Washington’s different treatment of house counsel.

Several Ethics 20/20 amendments to the Model Rule 5.5 comments (which conform them to the addition of “foreign lawyers” to Model 5.5(d)), are also recommended. But again, the Ethics 20/20 amendments are not completely consistent with Washington’s version of RPC 5.5(d)(1). Accordingly the suggested comments are modified from the Model Rules in order to reconcile them with Washington’s different treatment of in-house counsel.

It is recommended that the reference to paragraph (d)(1) in current Washington Comment [5] be stricken to coincide with Washington’s temporary practice limitation, and the language at the end of the comment has been added to coincide with the special Washington limited license for in-house counsel provided for in Admission and Practice Rule (APR) 8(f). These two changes are recommended to conform the RPC commentary with Washington’s APR and are not occasioned by the Ethics 20/20 amendments.

In Comment [8], a reference has been added to proposed new Comment [6] to RPC 1.1, which addresses a lawyer’s duties when associating with a lawyer outside the firm (and which cross references Rule 5.5). If adopted, this would be a Washington Revision to the comment.

The Ethics 20/20 amendments to Comment [15] added a reference to the ABA Model Rule on Temporary Practice by Foreign Lawyers. This reference is not recommended for adoption in Washington since Washington has not adopted that Model Rule.

Other Ethics 20/20 amendments to Comment [15] are also inconsistent with Washington’s version of Rule 5.5 and the APR. The recommended amendments do include some of the Ethics 20/20 language (specifically, the addition of “or a foreign,” “or the equivalent thereof,” and “United States or foreign”). Beyond that, however, the amendments being proposed rearrange the existing comment so that it first addresses Washington’s “temporary” practice exception (paragraph (d)(1)) and then addresses the “federal practice” exception (paragraph (d)(2)). The word “another” is used in the first line because the preceding comments explore unrelated temporary practice exceptions set out in Rule 5.5(c). The phrase “such a lawyer” is introduced in the second sentence of the comment to avoid repeating the lengthier text that precedes it: “a lawyer who is admitted to practice in another United States or a foreign jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, or the equivalent thereof.”

The Ethics 20/20 amendments to Comment [16] added language dealing with the use of foreign lawyers as house counsel and the need to ensure that when the issue is one of U.S. domestic law, any advice should be based on the advice of a domestic lawyer. It is recommended that this amendment be adopted verbatim.

The Ethics 20/20 amendments to Comment [17] added a reference to the ABA Model Rule for Registration of In-House Counsel. It is recommended that this reference not be adopted in Washington because Washington has not adopted that Model Rule.

The Ethics 20/20 amendments to Comment [18] added a reference to the ABA Model Rule on Practice Pending Admission. It is recommended that this reference not be adopted in Washington because Washington has not adopted that Model Rule.

Suggested Amendments to RPC 6.5

If the proposal to renumber the comments to RPC 1.6 is adopted, the cross reference in Comment [7] to this rule needs to be amended from “Comment [19]” to “Comment [21].”

Suggested Amendments to RPC 7.1

Consistent with the Ethics 20/20 amendments, it is recommended that the words “a prospective client” be replaced with the words “the public” at the end of Comment [3]. Rule 7.1 embraces all communications by a lawyer about his or her services, not just communications to prospective clients.

Suggested Amendments to RPC 7.2

The Ethics 20/20 amendments added language to the comments to Model Rule 7.2 (Advertising), particularly to Comments [3] and [5], to add clarity and clearly encompass electronic communications and the internet. In general, these changes are recommended for adoption in Washington, but subject to a number of departures from the ABA approach.

First, at the end of Comment [3], this proposal adds the words “of a possible client” to conform to recommendations regarding RPC 7.3, explained below.

Second, the Ethics 20/20 amendments included minor revisions at the end of Comment [6] to Model Rule 7.2, but Washington previously deleted the Model Rule language in which these Ethics 20/20 changes are embedded. Accordingly, it is not recommend that these revisions be adopted.

Suggested Amendments to RPC 7.3

The Ethics 20/20 amendments deleted the phrase “from a prospective client” previously appearing in paragraph (a) and (b) of Model Rule 7.3. This was apparently done to avoid confusion about the phrase “prospective client,” which is separately defined in Model Rule 1.18 (and Washington RPC 1.18). Although opinion on the issue was divided, the WSBA CPE concluded that the RPC 7.3(a) prohibition on direct solicitation should be limited to a potential client. Without such a limitation, the rule could be interpreted to unnecessarily preclude a lawyer from engaging in in-person conversations with friends, relatives or other professionals (at a Rotary meeting, for example) who in turn might have friends, relatives, clients or patients who may be in need of a lawyer’s services. Communication through an intermediary in this fashion is thought to be sufficient to protect potential clients from lawyer overreaching. Such solicitation is not what is meant by solicitation “through a third person,” and the lawyer would still be prohibited from using an agent, whether another professional or other person, to engage in in-person solicitation. By contrast, there appears to be no reason to prohibit a lawyer from personally asking another person if he or she has a friend, relative, client or patient who might benefit from the lawyer’s services, thus enabling the lawyer to send the potential client a permitted targeted written communication. To avoid confusion with the defined phrase “prospective client” but still retain the idea, the new phrase “possible client” is proposed. Inclusion of the word “possible” is not necessary in RPC 7.3(b) because any time a target of solicitation has made known his/her desire not to be solicited, or the solicitation involves coercion, duress or harassment, it should be prohibited, regardless of the identity or role of the individual. A new Washington Comment [14] is proposed that will explain this departure from the Model Rule comment. Apart from this modification, the remainder of the changes are taken verbatim from the Ethics 20/20 amendments, which are recommended for adoption in Washington.

The Ethics 20/20 amendments added a new Comment [1] to the Model Rule defining what a solicitation is, and has added clarifying language to former Comments [1] – [6], which were renumbered as Comments [2] – [7]. It is recommended that all these Model Rule revisions be adopted verbatim in Washington.

Consistent with the proposed revision to paragraph (a) of the rule, explained above, new Washington Comment [14] is proposed to explain the replacement of the words “prospective client” with the words “possible client” and elaborate on the ways in which a “possible client” may permissibly be solicited.

Suggested Amendments to RPC 8.5

The Ethics 20/20 amendments clarified Comment [5] to Model Rule 8.5, which deals with choice of law issues when applying the Rules of Professional Conduct. The amended Model Rule language makes relevant an agreement between the lawyer and the client that specifies a particular jurisdiction as the one in which the predominant effect of the lawyer’s conduct will occur. It is recommended that this language be adopted verbatim in Washington. In general, choice of law is a matter subject to agreement between parties to a contract, and making clear that such an agreement is relevant the legal ethics context seems reasonable.

B. Observations about the 2015 LLLT-related changes to the RPC Offered by the Committee on Professional Ethics

In seeking to reconcile the ABA Ethics 20/20 amendments with the 2015 LLLT-related amendments to Washington’s RPC,¹ the CPE came upon issues that it wants to call to the attention of the Board of Governors, the LLLT Board, and the Court. These issues relate to the ethically appropriate method of structuring fee contracts when an LLLT is an employee or partner of the lawyer, and the circumstances under which a lawyer may associate with an LLLT who is not an employee of the lawyer’s firm.

First, APR 28.G.3 currently states that “[p]rior to the performance of the services for a fee, the Limited License Legal Technician shall enter into a written contract with the client, signed by both the client and the Limited License Legal Technician….” (It goes on to specify what must be contained in the contract.) The CPE is unclear how this requirement is supposed to operate when an LLLT is employed by a lawyer. Must the LLLT expressly contract with the lawyer’s client before the employed LLLT may do LLLT-licensed work for the client? Or is it enough if the lawyer contracts with the client and delegates certain matters to the LLLT who is employed? Assuming the possibility of employed LLLTs doing LLLT-licensed work for the client is disclosed in a written lawyer-client contract, the CPE thinks the latter should suffice, but it does not seem consistent with APR 28.G.3. See also RPC 1.5, Comment [17], which suggests that where an LLLT works in a firm including both lawyers and LLLTs, fee agreements must comport with APR 28.G.3. Arguably, given APR 28.G.3, the only work an LLLT could perform for the lawyer’s client without expressly contracting with the client would be to provide nonlawyer services for the client for which the LLLT license is not required. This seems to make the employment of LLLTs by lawyers exceedingly complicated and overly restrictive, and the CPE hopes that the LLLT Board and the Court will reexamine and clarify this issue.

Second, under what circumstances may a lawyer engage the services of an LLLT who is not in the same firm as the lawyer? Following the 2015 LLLT-related RPC amendments, Comment [7] to RPC 1.1 provides that “a lawyer may enlist the assistance of an LLLT who is not in the same firm only (1) after consultation with the client in accordance with Rules 1.2 and 1.4 and (2) by referring the client directly to the LLLT.” (Note that that in this GR 9 submission Comment [7] is proposed to be renumbered as Comment [10] to account for the insertion of several new comments.) This sentence seems to preclude a lawyer from engaging an LLLT as an independent contractor to provide LLLT services to the client unless and until the LLLT has separately contracted with the client. Again, that seems dictated by APR 28.G.3. But, in the view of the CPE, it is unclear whether this was intended and whether it is necessary. If a lawyer hires another lawyer as an independent contractor to work on a matter or a series of matters, then it appears the rules do not require the independent-contractor lawyer to contract separately with each client. If that is not required of a lawyer, why should it be required of an LLLT? Why should it not suffice, where an LLLT is hired (or engaged as an independent contractor) by a lawyer to work on client matters, if the lawyer has a written contract with the client which addresses the possible use of LLLTs with the appropriate disclosures as to the scope of an LLLT’s services and the fees to be charged for the LLLT’s time – i.e., complying with the contract-content requirements of APR 28.G.3? To be sure, part of the problem is that lawyers (unlike LLLTs) are not required to have written agreements with clients in most circumstances. But so long as a lawyer hiring or retaining an LLLT does have a written fee agreement with the client that conforms with the content requirements set out in APR 28.G.3., it is unclear why the LLLT must separately contract with the client. The CPE hopes that the LLLT Board and the Court will reexamine this issue and adopt revisions or clarifications that make the LLLT-lawyer interface more straightforward and less of a potential trap for unwary lawyers and/or LLLTs.

Until this is done, however, it appears to the CPE that when a lawyer has hired an LLLT, but the LLLT has not complied with the contracting requirement of APR 28.G.3, the LLLT will be permitted only to do things that do not require the LLLT license (e.g., paralegal work).

D. Hearing

The proponent does not request a public hearing.

E. Expedited Consideration

The proponent does not request expedited consideration.

¹ Those amendments were adopted by order dated March 23, 2015, with an effective date of April 14, 2015 (the date of publication). Under the Court’s March 23 order, the WSBA is currently gathering feedback on those amendments, which will be provided to the Court nine months after the rules’ effective date.