Proposed Rules ArchivesRPC 1.2 - Scope of Representation and Allocation of Authority Between Lawyer and Client
RULES OF PROFESSIONAL CONDUCT (RPC)
Purpose: At its September, 24, 2010 meeting the Board of Governors of the Washington State Bar Association unanimously adopted the recommendation of the Rules of Professional Conduct Committee described as follows:
This suggested amendment to RPC 1.2 is based on a proposal from the WSBA Office of Disciplinary Counsel (ODC) to reenact, in substantially similar form, an ethics rule prohibiting lawyers from acting without authority that had been deleted from the rule when the Ethics 2003 changes were enacted in 2006. This provision is not included in the Model Rules. The Rules of Professional Conduct (RPC) Committee agreed with ODC that a specific rule regarding a lawyer’s acting without client authority is desirable, and that disciplinary authorities should not be forced to resort to a general “catch-all” provision in RPC 8.4 to impose professional discipline for this sort of misconduct. The RPC Committee was also persuaded by the fact that the Washington Supreme Court relied on the former “acting without authority” rule in two recent disciplinary decisions. See In re Disciplinary Proceeding Against Stansfield, 164 Wn.2d 108, 187 P.3d 254 (2008) (respondent lawyer purported to represent the estate of a vehicular homicide victim without obtaining authority to do so from the victim’s family); In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317, 157 P.3d 859 (2007)(respondent lawyer filed an appeal to the Ninth Circuit Court of Appeals without proper consultation with some of his clients and without their authorization).
The RPC Committee proposed enacting the rule as paragraph (f) to RPC 1.2, even though there is no longer a paragraph (e), because the earlier version of this rule had been located there. The only significant change from the prior version of the rule is in the mental state required to impose discipline, from “willfully” under prior versions to one of knowledge or constructive knowledge. The RPC Committee concluded that this change is reasonable, as “knowingly” is defined in the Terminology section of RPC 1.0 while “willfully” is not.
The additional proposed comments are intended to explain the history of the provision and to clarify its application when a client has diminished capacity or when a lawyer is acting as permitted by the ethics rules, the court rules, or other law.
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