Suggested Amendments to

THE RULES OF PROFESSIONAL CONDUCT (RPC)

Rules 1.0A, 1.10, 1.11

Submitted by the Board of Governors of the Washington State Bar Association

A.   Name of Proponent:  Washington State Bar Association.

B.   Spokepersons:

·         Mark Fucile, Chair, WSBA Committee on Professional Ethics

Fucile & Reising LLP

Jeanne Marie Clavere, Professional Responsibility Counsel and Staff Liaison Washington State Bar Association

C.   Purpose:       The proposal is result of a member inquiry received by the WSBA Committee on Professional Ethics (CPE).  The current Rules of Professional Conduct (RPC) treat public defender imputed conflicts differently depending on whether the public defender is a government employee or works for a private entity (a law firm or nonprofit).  The reason for differential treatment is because of the special conflict of interest rules applicable to lawyers who are government employees.  After much research, the CPE concluded the issue of public defender imputation of conflicts would be better resolved by a rule amendment rather than an advisory opinion. 

The typical lawyer who is a government employee represents the government, or possibly the government and individual employees of the government. The CPE concluded that the RPCs had overlooked the unusual situation presented by public defenders who are paid by the government to represent private individuals. Public defenders handle similar work regardless of whether they are employed by a private entity or the government. There is no basis for having different rules pertaining to imputed conflicts of interest dependent on the identity of the public defender’s employer. The CPE concluded that a rule change was necessary to address this circumstance.

Suggested Rule Amendments:

·         Add comment to RPC 1.0A to clarify that fully independent offices of a public defender agency qualify as independent law firms for conflict of interest purposes.

·         Amend RPC 1.10(d) to make RPC 1.10 applicable to all public defenders regardless of whether they are government employees.

·         Add comments to RPC 1.10 and 1.11 stating that imputed conflicts for public defenders are determined under RPC 1.10 rather than RPC 1.11.

The preliminary draft rules were circulated to interested parties for comment, including both state and federal public defender agencies, the Council on Public Defense, the WSBA Criminal Law Section, the WSBA Juvenile Law Section, and the Washington Defenders Association. There was widespread support for the proposed changes. Only one comment was received in opposition to the changes.