PART I
RULES OF GENERAL APPLICATION
GENERAL RULES (GR)
TABLE OF RULES
Rule
1 Classification System for Court Rules
2 Holidays
3 Filings and Hearings--Time Extended
3.1 Service and Filing by an Inmate Confined in an Institution
4 Law Librarian
5 Audits
6 Sessions of Courts
7 Local Rules--Filing and Effective Date
8 Reserved, Chapter 136, Laws 2002
9 Supreme Court Rulemaking Procedure
10 Ethics Advisory Committee Regarding Advisory Opinions on Judicial Conduct
11 Court Interpreters
11.1 Purpose and Scope of Interpreter Commission
11.2 Code of Conduct for Court Interpreters
11.3 Telephonic Interpretation
12.1 Washington State Bar Association: Purposes
12.2 Washington State Bar Association Administration of Supreme Court-Created Boards and Committees
12.3 Immunity
13 Use of Unsworn Statement in Lieu of Affidavit
14 Format for Pleadings and Other Papers
14 Appendix 1 - Office of Reporter of Decisions Style Sheet
15 Destruction and Sealing of Court Records
16 Courtroom Photography and Recording by the News Media
17 Facsimile Transmission
18 Jury Source List
19 Video Conference Proceedings
20 Security in Handling Court Exhibits
21 Emergency Court Closure
22 Access to Family Law Court Records
23 Rule for Certifying Professional Guardians
24 Definition of the Practice of Law
25 Practice of Law Board
26 Mandatory Continuing Judicial Education
27 Family Law Courthouse Facilitators
28 Jury Service Postponement, Excusal, and Disqualification
29 Presiding Judge in Superior Court District and Limited Jurisdiction Court District
30 Electronic Filing
32 Court Performance Audits
RULE 1
CLASSIFICATION SYSTEM FOR COURT RULES
PART I: RULES OF GENERAL APPLICATION
General Rules GR
Code of Judicial Conduct CJC
Discipline Rules for Judges DRJ
Board for Judicial Administration Rules BJAR
Admission to Practice Rules APR
Rules of Professional Conduct RPC
Rules for Enforcement of Lawyer Conduct ELC
Judicial Information System Committee Rules JISCR
Rules of Evidence ER
PART II: RULES FOR APPELLATE COURT ADMINISTRATION
Supreme Court Administrative Rules SAR
Court of Appeals Administrative Rules CAR
PART III: RULES ON APPEAL
Rules of Appellate Procedure RAP
PART IV: RULES FOR SUPERIOR COURT
Superior Court Administrative Rules AR
Superior Court Civil Rules CR
Superior Court Mandatory Arbitration Rules MAR
Superior Court Special Proceedings Rules SPR
Superior Court Guardian ad Litem Rules GALR
Superior Court Criminal Rules CrR
Superior Court Special Proceeding Rules – Criminal SPCR
Superior Court Mental Proceedings Rules MPR
Juvenile Court Rules JuCR
PART V: RULES FOR COURTS OF LIMITED JURISDICTION
Administrative Rules for Courts of Limited Jurisdiction ARLJ
Rules for Appeal of Decisions of Courts of Limited Jurisdiction RALJ
Civil Rules for Courts of Limited Jurisdiction CRLJ
Criminal Rules for Courts of Limited Jurisdiction CrRLJ
Infraction Rules for Courts of Limited Jurisdiction IRLJ
[Amended January 1, 1974; July 1, 1974; July 1, 1976;
September 24, 1976; April 2, 1979; January 1, 1981; May 14, 1982;
January 21, 1983; amended effective September 1, 1985;
December 8, 1986; September 1, 1987; September 1, 1989;
September 1, 1992; March 9,1999;
amended effective November 27, 2001; October 1, 2002.]
RULE 2
HOLIDAYS
(a) In event any legal holiday falls on Saturday all the courts of the
state shall be closed on the preceding day (Friday).
(b) In event any legal holiday falls on Sunday all the courts of the
state shall be closed on the following day (Monday).
(c) All clerk's offices shall likewise be closed on such days.
[Adopted effective February 3, 1977.]
GR 3
FILINGS AND HEARINGS--TIME EXTENDED
In event the last day for filing any document, having any hearing or
for doing any other thing or matter in any court shall fall upon a day
when such court shall be closed according to rule 2 or rule 21, then and
in that event the time for such filing, hearing, or other thing or matter
shall be extended until the end of the next business day upon which such
court shall be open for business. Notwithstanding this rule, extensions
of time for trial are governed by CrR 3.3(d)(8) and CrRLJ 3.3(d)(8).
[Adopted effective February 3, 1977; amended effective October 19, 1999.]
RULE GR 3.1
Service and Filing by an Inmate Confined in an Institution
(a) If an inmate confined in an institution files a document in any
proceeding, the document is timely filed if deposited in the institution's
internal mail system within the time permitted for filing.
(b) Whenever service of a document on a party is permitted to be made by
mail, the document is deemed "mailed" at the time of deposit in the
institution's internal mail system addressed to the parties on whom the
document is being served.
(c) If an institution has a system designed for legal mail, the inmate
must use that system to receive the benefit of this rule. Timely filing or
mailing may be shown by a declaration or notarized affidavit in form
substantially as follows:
DECLARATION
I, [name of inmate], declare that, on [date], I deposited the
foregoing [name of document], or a copy thereof, in the internal
mail system of [name of institution] and made arrangements for
postage, addressed to:
[name and address of court or other place of filing];
[name and address of parties or attorneys to be served].
I declare under penalty of perjury under the laws of the State
of Washington that the foregoing is true and correct.
DATED at [city, state] on [date].
___________________________
[signature]
(d) Whenever a party has the right or is required to do some act or take
some proceedings within a prescribed period after filing or service of a
document, and if an inmate files or serves the document under this rule,
that period shall begin to run on the date the document is received by the party.
[Adopted effective September 1, 2006.]
RULE 4
LAW LIBRARIAN
The time and manner of observing holidays by the Law Library on days
herein designated and on days immediately before and/or after such days
shall be subject to the direction of the State Law Librarian.
[Adopted effective February 3, 1977.]
RULE 5
AUDITS
The judicial branch of the government of the State of Washington is a
separate and co-equal division of said state government. The funds for
operation of the judicial branch and many funds which pass through the
courts are public funds of the state and/or of various subdivisions,
agencies, or municipalities of the state. Every court in this state must,
upon demand, submit all financial records of such court to the State
Auditor or his agents for inspection and audit, as to all funds received,
disbursed, or in possession of said court.
[Adopted effective February 8, 1977.]
RULE 6
SESSIONS OF COURTS
(a) Sessions of the Supreme Court shall be held in accordance with SAR
4.
(b) Sessions of the Court of Appeals shall be held in accordance with
CAR 4.
(c) Sessions of the Superior Court shall be held in accordance with CR
77(f).
[Adopted effective January 30, 1978.]
RULE GR 7
LOCAL RULES--FILING AND EFFECTIVE DATE
(a) Generally. Fifty copies of rules of court authorized
by law to be adopted or amended by courts other than the
Supreme Court must be filed with the state Administrator for
the Courts. New proposed rules and amendments must be filed
on or before July 1, to be effective September 1 of the same
year. Promulgation or amendment of rules that describe only
the structure, internal management and organization of the
court but do not affect courtroom procedures are not
governed by the time limitations above.
(b) Form. All local rules shall be consistent with rules
adopted by the Supreme Court, and shall conform in numbering
system and in format to these rules to facilitate their use.
Each rule and amendment filed shall state its effective date
in brackets following the rule. Prior to adopting a local
rule, the court may informally submit a copy of its local
rule to the Administrative Office of the Courts for comments
as to its conformity in number and format to the Official
Rules of Court, and suggestions with reference thereto.
(c) Distribution. On or before September 1 of each year,
the Administrator for the Courts shall distribute all local
rules, and amendments thereto, to the state law library, the
libraries of the three divisions of the Court of Appeals,
all county law libraries, Washington law school libraries,
and to such other places as are deemed appropriate by the
Administrative Office of the Courts.
(d) Availability of Local Rules; The clerk of the court
adopting the rules shall maintain a complete set of current
local rules, which shall be available for inspection and
copying.
(e) Emergency Rules.
(1) In the event a court other than the Supreme Court
deems that an emergency exists which requires a change in
its rules, such court shall, in addition to filing the rules
or amendments as provided in section (a), distribute them to
all county law libraries.
(2) A rule or amendment adopted on an emergency basis
shall become effective immediately on filing with the
Administrator for the Courts. The rule or amendment shall
remain effective for a period of 90 days after filing,
unless readopted in accordance with section (e)(1) or
submitted as a permanent rule or amendment under section (a)
within the 90-day period.
(f) Filing Local Rules Electronically. The Administrator
for the Courts shall establish the specifications necessary
for a court to file its local court rules electronically.
[Adopted effective January 1, 1981; amended effective
September 1, 1991; March 19, 1993; November 25, 2003.]
GR 8
RESERVED, CHAPTER 136, LAWS 2002
[Repeal effective January 1, 2003.]
RULE GR 9
SUPREME COURT RULEMAKING
(a) Statement of Purpose. The purpose of rules of court is to provide
necessary governance of court procedure and practice and to promote justice by
ensuring a fair and expeditious process. In promulgating rules of court, the
Washington Supreme Court seeks to ensure that:
(1) The adoption and amendment of rules proceed in an orderly and uniform manner;
(2) All interested persons and groups receive notice and an opportunity to
express views regarding proposed rules;
(3) There is adequate notice of the adoption and effective date of new and
revised rules;
(4) Proposed rules are necessary statewide;
(5) Minimal disruption in court practice occurs, by limiting the frequency
of rule changes; and
(6) Rules of court are clear and definite in application.
(b) Definitions. As used in this rule, the following terms have these meanings:
(1) "Suggested rule" means a request for a rule change or a new rule that
has been submitted to the Supreme Court.
(2) "Proposed rule" means a suggested rule that the Supreme Court has
ordered published for public comment.
(c) Request for Notification. Any person or group may file a request with
the Supreme Court to receive notice of a suggested rule. The request may be
limited to certain kinds of rule changes. The request shall state the name and
address of the person or group to whom the suggested rule is to be sent. Once
filed, the request shall remain in effect until withdrawn or unless notice sent
by regular, first-class U.S. mail is returned for lack of a valid address.
(d) Initiation of Rules Changes. Any person or group may submit to the
Supreme Court a request to adopt, amend, or repeal a court rule. The Supreme
Court shall determine whether the request is clearly stated and in the form
required by section (e) of this rule. If the Supreme Court determines that a
request is unclear or does not comply with section (e), the Supreme Court may
(1) accept the request notwithstanding its noncompliance, (2) ask the proponent
to resubmit the request in the proper format, or (3) reject the request, with
or without a written notice of the reason or reasons for such rejection.
(e) Form for Submitting a Request to Change Rules
(1) The text of all suggested rules should be submitted on 8 1/2 - by
11-inch line-numbered paper with consecutive page numbering and in an
electronic form as may be specified by the Supreme Court. If the suggested rule
affects an existing rule, deleted portions should be shown and stricken
through; new portions should be underlined once.
(2) A suggested rule should be accompanied by a cover sheet and not more
than 25 pages of supporting information, including letters, memoranda, minutes
of meetings, research studies, or the like. The cover sheet should contain the following:
(A) Name of Proponent - the name of the person or group requesting the rule change;
(B) Spokesperson - a designation of the person who is knowledgeable about the
proposed rule and who can provide additional information;
(C) Purpose - the reason or necessity for the suggested rule, including whether
it creates or resolves any conflicts with statutes, case law, or other court rules;
(D) Hearing - whether the proponent believes a public hearing is needed and, if so, why;
(E) Expedited Consideration - whether the proponent believes that exceptional
circumstances justify expedited consideration of the suggested rule,
notwithstanding the schedule set forth in section (i).
(f) Consideration of Suggested Rule by Supreme Court.
(1) The Supreme Court shall initially determine whether a suggested rule
has merit and whether it involves a significant or merely technical change. A
"technical change" is one which corrects a clerical mistake or an error arising
from oversight or omission. The Supreme Court shall also initially determine
whether the suggested rule should be considered under the schedule provided for
in section (i) or should receive expedited consideration for the reason or
reasons to be set forth in the transmittal form provided for in section (f)(2).
The Supreme Court may consult with other persons or groups, in making this
initial determination.
(2) After making its initial determinations, the Supreme Court shall
forward each suggested rule, except those deemed "without merit", along with a
transmittal form setting forth such determinations, to the Washington State Bar
Association, the Superior Court Judges Association, the District and Municipal
Court Judges Association, and the Chief Presiding Judge of the Court of Appeals
for their consideration. The transmittal shall include the cover sheet and any
additional information provided by the proponent. The Supreme Court shall also
forward the suggested rule and cover sheet to any person or group that has
filed a notice pursuant to section (c), and to any other person or group the
Supreme Court believes may be interested. The transmittal form shall specify a
deadline by which the recipients may comment in advance of any determination
under section (f)(3) of this rule. If the Supreme Court determines that the
suggested rule should receive expedited consideration, it shall so indicate on
the transmittal form. The form may contain a brief statement of the reason or
reasons for such consideration.
(3) After the expiration of the deadline set forth in the transmittal form,
the Supreme Court may reject the suggested rule, adopt a merely technical
change without public comment, or order the suggested rule published for public comment.
(g) Publication for Comment.
(1) A proposed rule shall be published for public comment in such media of
mass communication as the Supreme Court deems appropriate, including, but not
limited to, the Washington Reports Advance Sheets and the Washington State
Register. The proposed rule shall also be posted on such Internet sites as the
Supreme Court may determine, including those of the Supreme Court and the
Washington State Bar Association. The purpose statement required by section
(e)(2)(C) shall be published along with the proposed rule. Publication of a
proposed rule shall be announced in the Washington State Bar News.
(2) Publication of a proposed rule in the Washington State Register shall not
subject Supreme Court rulemaking to the provisions of the Administrative Procedures Act.
(3) All comments on a proposed rule shall be submitted in writing to the
Supreme Court by the deadline set forth in section (i).
(4) If a comment includes a suggested rule, it should be in the format set
forth in section (e). All comments received will be kept on file in the office
of the Clerk of the Supreme Court for public inspection and copying.
(h) Final Action by the Supreme Court, Publication, and Effective Date.
(1) After considering a suggested rule, or after considering any comments
or written or oral testimony received regarding a proposed rule, the Supreme
Court may adopt, amend, or reject the rule change or take such other action as
the Supreme Court deems appropriate.
Prior to action by the Supreme Court, the court may, in its discretion,
hold a hearing on a proposed rule at a time and in a manner defined by the
court. If the Supreme Court orders a hearing, it shall set the time and place
of the hearing and determine the manner in which the hearing will be conducted.
The Supreme Court may also designate an individual or committee to conduct the hearing.
(2) Regarding action on a suggested rule:
(A) If the Supreme Court rejects the suggested rule, it may provide the
proponent with the reason or reasons for such rejection.
(B) If the Supreme Court adopts the suggested rule without public comment,
it shall publish the rule and may set forth the reason or reasons for such adoption.
(3) Regarding action on a proposed rule:
(A) If the Supreme Court rejects a proposed rule, it may publish its reason
or reasons for such rejection.
(B) If the Supreme Court adopts a proposed rule, it may publish the rule
along with the purpose statement from the cover sheet.
(C) If the Supreme Court amends and then adopts a proposed rule, it should
publish the rule as amended along with a revised purpose statement.
(4) All adopted rules, or other final action by the Supreme Court for which
this rule requires publication, shall be published in a July edition of the
Washington Reports advance sheets and in the Washington State Register
immediately after such action. The adopted rules or other Supreme Court final
action shall also be posted on the Internet sites of the Supreme Court and the
Washington State Bar Association. An announcement of such publication shall be
made in the Washington State Bar News.
(5) All adopted rules shall become effective as provided in section (i)
unless the Supreme Court determines that a different effective date is necessary.
(i) Schedule for Review and Adoption of Rules.
(1) In order to be published for comment in January, as provided in section (i) (2),
a suggested rule must be received no later than October 15 of the preceding year.
(2) Proposed rules shall be published for comment in January of each year.
(3) Comments must be received by April 30 of the year in which the proposed
rule is published.
(4) Proposed rules published in January and adopted by the Supreme Court
shall be republished in July and shall take effect the following September 1.
(5) All suggested rules will be considered pursuant to the schedule set
forth in this section, unless the Supreme Court determines that exceptional
circumstances justify more immediate action.
(6) The Supreme Court, in consultation with the Washington State Bar
Association, the Superior Court Judges Association, the District and Municipal
Court Judges Association, and the Chief Presiding Judge of the Court of
Appeals, shall develop a schedule for the periodic review of particular court
rules. The schedule shall be posted on such Internet sites as the Supreme
Court may determine, including those of the Supreme Court and the Washington
State Bar Association.
(j) Miscellaneous Provisions.
(1) The Supreme Court may adopt, amend, or rescind a rule, or take any
emergency action with respect to a rule without following the procedures set
forth in this rule. Upon taking such action or upon adopting a rule outside of
the schedule set forth in section (i) because of exceptional circumstances, the
Supreme Court shall publish the rule in accordance with sections (g) or (h) as applicable.
(2) This rule shall take effect on _________ and apply to all rules not yet
adopted by the Supreme Court by that date.
[Adopted effective March 19, 1982; amended effective September 1, 1984; September 1, 2000.]
RULE 10
ETHICS ADVISORY COMMITTEE REGARDING ADVISORY
OPINIONS ON JUDICIAL CONDUCT
(a) The Chief Justice shall appoint an Ethics Advisory Committee
consisting of seven members. Of the members first appointed, four shall be
appointed for 2 years, and three shall be appointed for 3 years.
Thereafter, appointments shall be for a 2-year term. One member shall be
appointed from the Court of Appeals, two members from the superior courts,
two members from the courts of limited jurisdiction, one member from the
Washington State Bar Association, and the Administrator for the Courts. The
Chief Justice shall designate one of the members as chairman. The committee
(1) is designated as the body to give advice with respect to the
application of the provisions of the Code of Judicial Conduct to officials
of the Judicial Branch as defined in article 4 of the Washington
Constitution and (2) shall from time to time submit to the Supreme Court
recommendations for necessary or advisable changes in the Code of Judicial
Conduct.
(b) Any judge may in writing request the opinion of the committee.
Compliance with an opinion issued by the committee shall be considered as
evidence of good faith by the Supreme Court.
(c) Every opinion issued pursuant to this rule shall be circulated by
the Administrator for the Courts. A request for an opinion is confidential
and not public information unless the Supreme Court otherwise directs. The
Administrator for the Courts shall publish regularly opinions issued
pursuant to this rule.
[Adopted effective September 1, 1983; amended effective
November 11, 1983; May 25, 1984.]
RULE 11
COURT INTERPRETERS
The use of qualified interpreters is authorized in judicial proceedings
involving hearing impaired or non-English speaking individuals.
[Adopted effective July 17, 1987.]
RULE 11.1
PURPOSE AND SCOPE OF INTERPRETER COMMISSION
(a) Purpose and Scope. This rule establishes the
Interpreter Commission ("Commission") and prescribes the
conditions of its activities. This rule does not modify or
duplicate the statutory process directing the Court
Certified Interpreter Program as it is administered by the
Administrative Office of the Courts (AOC) (RCW 2.43). The
Interpreter Commission will develop policies for the
Interpreter Program and the Program Policy Manual, published
on the Washington Court's website at www.courts.wa.gov,
which shall constitute the official version of policies
governing the Court Certified Interpreter Program.
(b) Jurisdiction and Powers. All certified court
interpreters who are certified in the state of Washington by
AOC are subject to rules and regulations specified in the
Interpreter Program Manual. The Commission shall establish
three committees to fulfill ongoing functions related to
issues, discipline, and judicial/court administration
education. Each committee shall consist of three Commission
members and one member shall be identified as the chair.
(1) The Issues Committee is assigned issues,
complaints, and/or requests from interpreters for
review and response. If the situation cannot be
resolved at the Issues Committee level, the matter will
be submitted by written referral to the Disciplinary Committee.
(2) The Disciplinary Committee has the authority to
decertify and deny certification of interpreters based
on the disciplinary procedures for: (a) violations of
continuing education/court hour requirements, (b)
failure to comply with Interpreter Code of Conduct (GR
11.2) or professional standards, or (3) violations of
law that may interfere with their duties as a certified
court interpreter. The Disciplinary Committee will
decide on appeal any issues submitted by the Issues Committee.
(3) The Judicial and Court Administration Education
Committee shall provide ongoing opportunities for
training and resources to judicial officers and court
administrators related to court interpretation improvement.
(c) Establishment. The Supreme Court shall appoint
members to the Interpreter Commission. The Supreme Court
shall designate the chair of the Commission. The Commission
shall include representatives from the following areas of
expertise: judicial officers from the appellate and each
trial court level (3), interpreter (2), court administrator
(1), attorney (1), public member (2), representative from
ethnic organization (1), and AOC representative (1). The
term for a member of the Commission shall be three years.
Members are eligible to serve a subsequent 3 year term. The
Commission shall consist of eleven members. Members shall
only serve on one committee and committees may be
supplemented by ad hoc professionals as designated by the
chair. Ad hoc members may not serve as the chair of a committee.
(d) Regulations. Policies outlining rules and
regulations directing the interpreter program are specified
in the Interpreter Program Manual. The Commission, through
the Issues Committee and Disciplinary Committee, shall
enforce the policies of the interpreter program.
Interpreter program policies may be modified at any time by
the Commission and AOC.
(e) Existing Law Unchanged. This rule shall not
expand, narrow, or otherwise affect existing law, including
but not limited to RCW chapter 2.43.
(f) Meetings. The Commission shall hold meetings as
determined necessary by the chair. Meetings of the
Commission are open to the public except for executive
sessions and disciplinary meetings related to action against
a certified interpreter.
(g) Immunity from Liability. No cause of action
against the Commission, its standing members or ad hoc
members appointed by the Commission, shall accrue in favor
of a certified court interpreter or any other person arising
from any act taken pursuant to this rule, provided that the
Commission members or ad hoc members acted in good faith.
The burden of proving that the acts were not taken in good
faith shall be on the party asserting it.
[Adopted effective September 1, 2005]
RULE 11.2
CODE OF CONDUCT FOR COURT INTERPRETERS
PREAMBLE. All language interpreters serving in a legal
proceeding, whether certified or uncertified, shall abide by the
following Code of Conduct:
A language interpreter who violates any of the provisions of
this code is subject to a citation for contempt, disciplinary
action or any other sanction that may be imposed by law. The
purpose of this Code of Conduct is to establish and maintain high
standards of conduct to preserve the integrity and independence
of the adjudicative system.
(a) A language interpreter, like an officer of the court,
shall maintain high standards of personal and professional
conduct that promote public confidence in the administration of justice.
(b) A language interpreter shall interpret or translate the
material thoroughly and precisely, adding or omitting nothing,
and stating as nearly as possible what has been stated in the
language of the speaker, giving consideration to variations in
grammar and syntax for both languages involved. A language
interpreter shall use the level of communication that best
conveys the meaning of the source, and shall not interject the
interpreters personal moods or attitudes.
(c) When a language interpreter has any reservation about
ability to satisfy an assignment competently, the interpreter
shall immediately convey that reservation to the parties and to
the court. If the communication mode or language of the
non-English speaking person cannot be readily interpreted, the
interpreter shall notify the appointing authority or the court.
(d) No language interpreter shall render services in any
matter in which the interpreter is a potential witness,
associate, friend, or relative of a contending party, unless a
specific exception is allowed by the appointing authority for
good cause noted on the record. Neither shall the interpreter
serve in any matter in which the interpreter has an interest,
financial or otherwise, in the outcome. Nor shall any language
interpreter serve in a matter where the interpreter has
participated in the choice of counsel.
(e) Except in the interpreters official capacity, no language
interpreter shall discuss, report, or comment upon a matter in
which the person serves as interpreter. Interpreters shall not
disclose any communication that is privileged by law without the
written consent of the parties to the communication, or pursuant
to court order.
(f) A language interpreter shall report immediately to the
appointing authority in the proceeding any solicitation or effort
by another to induce or encourage the interpreter to violate any
law, any provision of the rules which may be approved by the
courts for the practice of language interpreting, or any
provisions of this Code of Conduct.
(g) Language interpreters shall not give legal advice and
shall refrain from the unauthorized practice of law.
[Adopted effective November 17, 1989; September 1, 2005.]
GR 11.3
TELEPHONIC INTERPRETATION
(a) Interpreters may be appointed to serve by telephone for
brief, nonevidentiary proceedings, including initial appearances
and arraignments, when interpreters are not readily available to
the court. Telephone interpretation is not authorized for
evidentiary hearings.
(b) RCW 2.43 and GR 11.2 must be followed regarding the
interpreter's qualifications and other matters.
(c) Electronic equipment used during the hearing must ensure
that the non-English speaking party hears all statements made by
the participants. If electronic equipment is not available for
simultaneous interpreting, the hearing shall be conducted to
allow consecutive interpretation of each sentence.
(d) Attorney-client consultations must be interpreted confidentially.
(e) Written documents which would normally be orally
translated by the interpreter must be read aloud to allow full
oral translation of the material by the interpreter.
(f) An audio recording shall be made of all statements made
on the record during their interpretation, and the same shall be preserved.
[Adopted effective July 19, 1987; amended effective December 10,
1993; September 1, 1997; September 1, 2005.]
GR 12.1
WASHINGTON STATE BAR ASSOCIATION: PURPOSES
(a) Purposes: In General. In general, the Washington State Bar Association
strives to:
(1) Promote independence of the judiciary and the bar.
(2) Promote an effective legal system, accessible to all.
(3) Provide services to its members.
(4) Foster and maintain high standards of competence, professionalism,
and ethics among its members.
(5) Foster collegiality among its members and goodwill between the bar
and the public.
(6) Promote diversity and equality in the courts, the legal profession,
and the bar.
(7) Administer admissions to the bar and discipline of its members in a
manner that protects the public and respects the rights of the applicant or
member.
(8) Administer programs of legal education.
(9) Promote understanding of and respect for our legal system and the
law.
(10) Operate a well-managed and financially sound association, with a
positive work environment for its employees.
(11) Serve as a state-wide voice to the public and the branches of
government on matters relating to these purposes and the activities of the
association.
(b) Specific Activities Authorized. In pursuit of these purposes, the
Washington State Bar Association may:
(1) Sponsor and maintain committees, sections, and divisions whose
activities further these purposes;
(2) Support the judiciary in maintaining the integrity and fiscal
stability of an independent and effective judicial system;
(3) Provide periodic reviews and recommendations concerning court rules
and procedures;
(4) Administer examinations and review applicants' character and fitness
to practice law;
(5) Inform and advise lawyers regarding their ethical obligations;
(6) Administer an effective system of discipline of its members,
including receiving and investigating complaints of lawyer misconduct,
taking and recommending appropriate punitive and remedial measures, and
diverting less serious misconduct to alternatives outside the formal
discipline system;
(7) Maintain a program, pursuant to court rule, requiring members to
submit fee dispute to arbitration;
(8) Maintain a program for mediation of disputes between members and
their clients and others;
(9) Maintain a program for lawyer practice assistance;
(10) Sponsor, conduct, and assist in producing programs and products of
continuing legal education;
(11) Maintain a system for accrediting programs of continuing legal
education;
(12) Conduct audits of lawyers' trust accounts;
(13) Maintain a lawyers' fund for client protection in accordance with
the Admission to Practice Rules;
(14) Maintain a program for the aid and rehabilitation of impaired
members;
(15) Disseminate information about bar activities, interests, and
positions;
(16) Monitor, report on, and advise public officials about matters of
interest to the bar;
(17) Maintain a legislative presence to inform members of new and
proposed laws and to inform public officials about bar positions and
concerns;
(18) Encourage public service by members and support programs providing
legal services to those in need;
(19) Maintain and foster programs of public information and education
about the law and the legal system;
(20) Provide, sponsor and participate in services to its members;
(21) Hire and retain employees to facilitate and support its mission,
purposes, and activities, including in the bar's discretion, authorizing
collective bargaining;
(22) Collect, allocate, invest, and disburse funds so that its mission,
purposes and activities may be effectively and efficiently discharged.
(c) Activities Not Authorized. The Washington State Bar Association will
not:
(1) Take positions on issues concerning the politics or social positions
of foreign nations;
(2) Take positions on political or social issues which do not relate to
or affect the practice of law or the administration of justice;
(3) Support or oppose, in an election, candidates for public office.
[Adopted effective July 19, 1987; amended effective December 10, 1993;
September 1, 1997; September 1, 2007.]
GR 12.2
WASHINGTON STATE BAR ASSOCIATION ADMINISTRATION OF SUPREME COURT-CREATED
BOARDS AND COMMITTEES
The Supreme Court has delegated to the Washington State Bar Association
the authority and responsibility to administer certain boards and
committees established by court rule or order. This delegation of
authority includes providing and managing staff, overseeing the boards and
committees to monitor their compliance with the rules and orders that
authorize and regulate them, paying expenses reasonably and necessarily
incurred pursuant to a budget approved by the Board of Governors,
performing other functions and taking other actions as provided in court
rule or order or delegated by the Supreme Court, or taking other actions
as are necessary and proper to enable the board or committee to carry out
its duties or functions.
[Adopted effective September 1, 2007.]
GR 12.3
Immunity
All boards, committees, or other entities, and their members and personnel, and
all personnel and employees of the Washington State Bar Association, acting on
behalf of the Supreme Court under the Admission to Practice Rules, the rules
for Enforcement of Lawyer Conduct, and the Disciplinary Rules for Limited
Practice Officers, shall enjoy quasi-judicial immunity if the Supreme Court
would have immunity in performing the same functions.
Adopted effective January 2, 2008
RULE 13
USE OF UNSWORN STATEMENT IN LIEU
OF AFFIDAVIT
(a) Unsworn Statement Permitted. Except as provided in section
(b) whenever a matter is required or permitted to be supported or
proved by affidavit, the matter may be supported or proved by an unsworn
written statement, declaration, verification, or certificate executed in
accordance with RCW 9A.72.085. The certification or declaration may be in
substantially the following form:
I certify (or declare) under penalty of perjury under the laws of the
State of Washington that the foregoing is true and correct:
________________________________ _________________________________
(Date and Place) (Signature)
(b) Exceptions. This rule does not apply to writings requiring an
acknowledgment, oaths of office, or oaths required to be taken before a
special official other than a notary public.
[Adopted effective September 1, 1989.]
GR 14
FORMAT FOR PLEADINGS AND OTHER PAPERS
(a) Format Requirements. All pleadings, motions, and other papers filed with
the court shall be legibly written or printed. The use of letter-size paper
(8-1/2 by 11 inches) is mandatory. The writing or printing shall appear on only
one side of the page. The top margin of the first page shall be a minimum of
three inches, the bottom margin shall be a minimum of one inch and the side
margins shall be a minimum of one inch. All subsequent pages shall have a
minimum of one inch margins. Papers filed shall not include any colored pages,
highlighting or other colored markings. This rule applies to attachments
unless the nature of the attachment makes compliance impractical.
(b) Exception for Trial or Hearing Exhibits. This rule is not mandatory for
trial or hearing exhibits, but the use of trial or hearing exhibits that comply
with this rule is encouraged if it does not impair legibility.
(c) Application of Rule. This rule shall apply to all proceedings in all
courts of the State of Washington unless otherwise specifically indicated by
court rule.
(d) Citation Format. Citations shall conform with the format prescribed by
the Reporter of Decisions. (See Appendix 1.)
[Adopted effective September 1, 1990; amended effective April 1, 2001;
September 1, 2003; September 1, 2008.]
RULE 14.1.
Citation to Unpublished Opinions
(a) Washington Court of Appeals. A party may not cite as an
authority an unpublished opinion of the Court of Appeals.
Unpublished opinions of the Court of Appeals are those opinions
not published in the Washington Appellate Reports.
(b) Other Jurisdictions. A party may cite as an authority an
opinion designated "unpublished," "not for publication," "non-
precedential," "not precedent," or the like that has been issued
by any court from a jurisdiction other than Washington state,
only if citation to that opinion is permitted under the law of
the jurisdiction of the issuing court. The party citing the
opinion shall file and serve a copy of the opinion with the
brief or other paper in which the opinion is cited.
[Adopted effective September 1, 2007.]
14 GR 14 - APPENDIX 1 - OFFICE OF REPORTER OF DECISIONS STYLE SHEET The contents of this item are only available on-line.
RULE GR 15
DESTRUCTION, SEALING, AND REDACTION OF COURT RECORDS
(a) Purpose and Scope of the Rule. This rule sets forth a
uniform procedure for the destruction, sealing, and
redaction of court records. This rule applies to all court
records, regardless of the physical form of the court
record, the method of recording the court record, or the
method of storage of the court record.
(b) Definitions.
(1) "Court file" means the pleadings, orders, and other
papers filed with the clerk of the court under a single
or consolidated cause number(s).
(2) "Court record" is defined in GR 31(c)(4).
(3) Destroy. To destroy means to obliterate a court record
or file in such a way as to make it permanently
irretrievable. A motion or order to expunge shall be
treated as a motion or order to destroy.
(4) Seal. To seal means to protect from examination by the
public and unauthorized court personnel. A motion or
order to delete, purge, remove, excise, or erase, or
redact shall be treated as a motion or order to seal.
(5) Redact. To redact means to protect from examination by
the public and unauthorized court personnel a portion
or portions of a specified court record.
(6) Restricted Personal Identifiers are defined in GR
22(b)(6).
(7) Strike. A motion or order to strike is not a motion or
order to seal or destroy.
(8) Vacate. To vacate means to nullify or cancel.
(c) Sealing or Redacting Court Records.
(1) In a civil case, the court or any party may request a
hearing to seal or redact the court records. In a
criminal case or juvenile proceedings, the court, any
party, or any interested person may request a hearing
to seal or redact the court records. Reasonable notice
of a hearing to seal must be given to all parties in
the case. In a criminal case, reasonable notice of a
hearing to seal or redact must also be given to the
victim, if ascertainable, and the person or agency
having probationary, custodial, community placement, or
community supervision over the affected adult or
juvenile. No such notice is required for motions to
seal documents entered pursuant to CrR 3.1(f) or CrRLJ 3.1(f).
(2) After the hearing, the court may order the court files
and records in the proceeding, or any part thereof, to
be sealed or redacted if the court makes and enters
written findings that the specific sealing or redaction
is justified by identified compelling privacy or safety
concerns that outweigh the public interest in access to
the court record. Agreement of the parties alone does
not constitute a sufficient basis for the sealing or
redaction of court records. Sufficient privacy or
safety concerns that may be weighed against the public
interest include findings that:
(A) The sealing or redaction is permitted by statute;
or
(B) The sealing or redaction furthers an order entered
under CR 12(f) or a protective order entered under
CR 26(c); or
(C) A conviction has been vacated; or
(D) The sealing or redaction furthers an order entered
pursuant to RCW 4.24.611; or
(E) The redaction includes only restricted personal
identifiers contained in the court record; or
(F) Another identified compelling circumstance exists
that requires the sealing or redaction.
(3) A court record shall not be sealed under this section
when redaction will adequately resolve the issues
before the court pursuant to subsection (2) above.
(4) Sealing of Entire Court File. When the clerk receives a
court order to seal the entire court file, the clerk
shall seal the court file and secure it from public
access. All court records filed thereafter shall also
be sealed unless otherwise ordered. The existence of a
court file sealed in its entirety, unless protected by
statute, is available for viewing by the public on
court indices. The information on the court indices is
limited to the case number, names of the parties, the
notation "case sealed," the case type and cause of
action in civil cases and the cause of action or charge
in criminal cases, except where the conviction in a
criminal case has been vacated, section (d) shall
apply. The order to seal and written findings
supporting the order to seal shall also remain
accessible to the public, unless protected by statute.
(5) Sealing of Specified Court Records. When the clerk
receives a court order to seal specified court records
the clerk shall:
(A) On the docket, preserve the docket code, document
title, document or subdocument number and date of
the original court records;
(B) Remove the specified court records, seal them, and
return them to the file under seal or store
separately. The clerk shall substitute a filler
sheet for the removed sealed court record. If the
court record ordered sealed exists in a microfilm,
microfiche or other storage medium form other than
paper, the clerk shall restrict access to the
alternate storage medium so as to prevent
unauthorized viewing of the sealed court record;
and
(C) File the order to seal and the written findings
supporting the order to seal. Both shall be
accessible to the public.
(D) Before a court file is made available for
examination, the clerk shall prevent access to the
sealed court records.
(6) Procedures for Redacted Court Records. When a court
record is redacted pursuant to a court order, the
original court record shall be replaced in the public
court file by the redacted copy. The redacted copy
shall be provided by the moving party. The original
unredacted court record shall be sealed following the
procedures set forth in (c)(5).
(d) Procedures for Vacated Criminal Convictions. In cases where
a criminal conviction has been vacated and an order to seal
entered, the information in the public court indices shall
be limited to the case number, case type with the
notification "DV" if the case involved domestic violence,
the adult or juvenile's name, and the notation "vacated."
(e) Grounds and Procedure for Requesting the Unsealing of Sealed Records.
(1) Sealed court records may be examined by the public only
after the court records have been ordered unsealed
pursuant to this section or after entry of a court
order allowing access to a sealed court record.
(2) Criminal Cases. A sealed court record in a criminal
case shall be ordered unsealed only upon proof of
compelling circumstances, unless otherwise provided by
statute, and only upon motion and written notice to the
persons entitled to notice under subsection (c)(1) of
this rule except:
(A) If a new criminal charge is filed and the
existence of the conviction contained in a sealed
record is an element of the new offense, or would
constitute a statutory sentencing enhancement, or
provide the basis for an exceptional sentence,
upon application of the prosecuting attorney the
court shall nullify the sealing order in the prior
sealed case(s).
(B) If a petition is filed alleging that a person is a
sexually violent predator, upon application of the
prosecuting attorney the court shall nullify the
sealing order as to all prior criminal records of
that individual.
(3) Civil Cases. A sealed court record in a civil case
shall be ordered unsealed only upon stipulation of all
parties or upon motion and written notice to all
parties and proof that identified compelling
circumstances for continued sealing no longer exist, or
pursuant to RCW 4.24 or CR 26(j). If the person seeking
access cannot locate a party to provide the notice
required by this rule, after making a good faith
reasonable effort to provide such notice as required by
the Superior Court Rules, an affidavit may be filed
with the court setting forth the efforts to locate the
party and requesting waiver of the notice provision of
this rule. The court may waive the notice requirement
of this rule if the court finds that further good faith
efforts to locate the party are not likely to be successful.
(4) Juvenile Proceedings. Inspection of a sealed juvenile
court record is permitted only by order of the court
upon motion made by the person who is the subject of
the record, except as otherwise provided in RCW
13.50.010(8) and 13.50.050(23). Any adjudication of a
juvenile offense or a crime subsequent to sealing has
the effect of nullifying the sealing order, pursuant to
RCW 13.50.050(16).
(f) Maintenance of Sealed Court Records. Sealed court records
are subject to the provisions of RCW 36.23.065 and can be
maintained in mediums other than paper.
(g) Use of Sealed Records on Appeal. A court record or any
portion of it, sealed in the trial court shall be made
available to the appellate court in the event of an appeal.
Court records sealed in the trial court shall be sealed from
public access in the appellate court subject to further
order of the appellate court.
(h) Destruction of Court Records.
(1) The court shall not order the destruction of any court
record unless expressly permitted by statute. The court shall
enter written findings that cite the statutory authority for the
destruction of the court record.
(2) In a civil case, the court or any party may request a
hearing to destroy court records only if there is express
statutory authority permitting the destruction of the court
records. In a criminal case or juvenile proceeding, the court,
any party, or any interested person may request a hearing to
destroy the court records only if there is express statutory
authority permitting the destruction of the court records.
Reasonable notice of the hearing to destroy must be given to all
parties in the case. In a criminal case, reasonable notice of the
hearing must also be given to the victim, if ascertainable, and
the person or agency having probationary, custodial, community
placement, or community supervision over the affected adult or juvenile.
(3) When the clerk receives a court order to destroy the entire
court file the clerk shall:
(A) Remove all references to the court records from
any applicable information systems maintained for
or by the clerk except for accounting records, the
order to destroy, and the written findings. The
order to destroy and the supporting written
findings shall be filed and available for viewing
by the public.
(B) The accounting records shall be sealed.
(4) When the clerk receives a court order to destroy specified
court records the clerk shall;
(A) On the automated docket, destroy any docket code information
except any document or sub-document number previously assigned to
the court record destroyed, and enter "Order Destroyed" for the
docket entry;
(B) Destroy the appropriate court records, substituting, when
applicable, a printed or other reference to the order to destroy,
including the date, location, and document number of the order to
destroy; and
(C) File the order to destroy and the written findings
supporting the order to destroy. Both the order
and the findings shall be publicly accessible.
(5) This subsection shall not prevent the routine
destruction of court records pursuant to applicable
preservation and retention schedules.
(i) Trial Exhibits. Notwithstanding any other provision of this
rule, trial exhibits may be destroyed or returned to the
parties if all parties so stipulate in writing and the court so orders.
(j) Effect on Other Statutes. Nothing in this rule is intended
to restrict or to expand the authority of clerks under
existing statutes, nor is anything in this rule intended to
restrict or expand the authority of any public auditor in
the exercise of duties conferred by statute.
[Adopted effective September 22, 1989; amended effective
September 1, 1995; June 4, 1997; June 16, 1998; September 1,
2000; amended effective October 1, 2002; amended effective July 1, 2006.]
RULE GR 16
COURTROOM PHOTOGRAPHY AND RECORDING BY THE NEWS MEDIA
(a) Video and audio recording and still photography by the
news media are allowed in the courtroom during and between
sessions, provided
(1) that permission shall have first been expressly granted
by the judge; and
(2) that media personnel not, by their appearance or
conduct, distract participants in the proceedings or
otherwise adversely affect the dignity and fairness of the proceedings.
(b) The judge shall exercise reasonable discretion in
prescribing conditions and limitations with which media
personnel shall comply.
(c) If the judge finds that sufficient reasons exist to
warrant limitations on courtroom photography or recording,
the judge shall make particularized findings on the records
at the time of announcing the limitations. This may be done
either orally or in a written order. In determining what,
if any, limitations should be imposed, the judge shall be
guided by the following principles:
(1) Open access is presumed; limitations on access must be
supported by reasons found by the judge to be sufficiently
compelling to outweigh that presumption;
(2) Prior to imposing any limitations on courtroom
photography or recording, the judge shall, upon request,
hear from any party and from any other person or entity
deemed appropriate by the judge; and
(3) Any reasons found sufficient to support limitations on
courtroom photography or recording shall relate to the
specific circumstances of the case before the court rather
than reflecting merely generalized views.
[Adopted effective December 27, 1991; amended effective January 4, 2005.]
Comment
Before 1991 when GR 16 on “Cameras in the Courtroom” was
first adopted, the subject had only been addressed in the
Code of Judicial Conduct’s Canon 3(A)(7). The intent of the
1991 change was to make clear both that cameras were fully
accepted in Washington courtrooms and also that broad
discretion was vested in the court to decide what, if any,
limitations should be imposed. In subsequent experience,
both judges and the media have perceived a need for greater
guidance as to how that judicial discretion should be
exercised in a particular case. This 2003 amendment to GR 16
is intended to fill that practical need.
While not providing much guidance for the court’s
exercise of discretion, the Canon did contain some
“illustrative guidelines” on how media personnel should
conduct themselves while covering the courts. Although
these guidelines were no longer a part of the rule once GR
16 was adopted, they continued to be published in the
accompanying Comment. Some portions of those guidelines
have now become outdated and others are superseded by
language in the new GR 16. Because there continues to be
potential value in some of the remaining guidelines, they
will be here set out in redacted form:
ILLUSTRATIVE BROADCAST GUIDELINES
1. Officers of Court. Broadcast newspersons should advise
the bailiff prior to the start of a court session that they
desire to electronically record and/or broadcast live from
within the courtroom. The bailiff may have prior
instructions from the judge as to where the broadcast
reporter and/or camera operator may position themselves. In
the absence of any directions from the judge or bailiff, the
position should be behind the front row of spectator seats
by the least used aisleway or other unobtrusive but viable location.
2. Pooling. Unless the judge directs otherwise, no more
than one television camera should be taking pictures in the
courtroom at any one time. It should be the responsibility
of each broadcast news representative present at the opening
of each session of court to achieve an understanding with
all other broadcast representatives as to how they will pool
their photographic coverage. This understanding should be
reached outside the courtroom and without imposing on the
judge or court personnel.
3. Broadcast Equipment. All running wires used should
be securely taped to the floor. All broadcast equipment
should be handled as inconspicuously and quietly as
reasonably possible. Sufficient film and/or tape capacities
should be provided to obviate film and/or tape changes
except during court recess. No additional lights should be
used without the specific approval of the presiding judge.
4. Decorum. Camera operators should not move tripod-
mounted cameras except during court recess. All broadcast
equipment should be in place and ready to function no less
than 15 minutes before the beginning of each session of court.
An accompanying set of “Illustrative Print Media
Guidelines” contained substantially the same provisions from
print media personnel. The only additional matters
addressed were that still photographers should use cameras
operating quietly and without a flash and they should not
“assume body positions inappropriate for spectators.”
GR 17
FACSIMILE TRANSMISSION
(a) Facsimile Transmission Authorized; Exceptions.
(1) Except as set forth in subsection (a)(5), the clerks of the court
may accept for filing documents sent directly to the clerk or to another by
electronic facsimile (fax) transmission. A fax copy shall constitute an
original for all court purposes. The attorney or party sending the document
via fax to the clerk or to another shall retain the original signed
document until 60 days after completion of the case. Documents to be
transmitted by fax shall bear the notation: "SENT on _______________ (DATE)
VIA FAX FOR FILING IN COURT.
(2) If a document is transmitted by facsimile to another for filing
with a court, the person responsible for the filing must attach an original
affidavit as the last page of the document. The affidavit must bear the
name of the court, case caption, case number, the name of the document to
be filed, and a statement that the individual signing the affidavit has
examined the document, determined that it consists of a stated number of
pages, including the affidavit page, and that it is complete and legible.
The affidavit shall bear the original signature, the printed name, address,
phone number and facsimile number of the individual who received the
document for filing.
(3) The clerk of the court may use fax transmission to send any
document requiring personal service to one charged with personally serving
the document. Notices and other documents may be transmitted by the clerk
to counsel of record by fax.
(4) Clerks may charge reasonable fees to be established by the Office
of the Administrator for the Courts, for receiving, collating, and
verifying fax transmissions.
(5) Without prior approval of the clerk of the receiving court,
facsimile transmission is not authorized for judge's working copies
(courtesy copies) or for those documents for which a filing fee is
required. Original wills and negotiable instruments may not be filed by
facsimile transmission.
(6) Facsimile Machine Not Required. Nothing in this rule shall require
an attorney or a clerk of a court to have a facsimile machine.
(b) Conditions.
(1) Documents transmitted to the clerk by fax shall be letter size (8-
1/2 by 11 inches). Documents over 10 pages in length may not be filed by
fax without prior approval of the clerk.
(2) Any document transmitted to the clerk by fax must be accompanied by
a fax transmittal sheet in a format prescribed by the court. The form must
include the case number (if any), case caption, number of pages, the
sender's name, the senders voice and facsimile telephone numbers, and fax
fee remittance certification. Transmittal sheets are not considered legal
filings.
(3) A document transmitted directly to the clerk of the court shall be
deemed received at the time the clerk's fax machine electronically
registers the transmission of the first page, regardless of when final
printing of the document occurs, except that a document received after the
close of normal business hours shall be considered received the next
judicial day. If a document is not completely transmitted, it will not be
considered received. A document transmitted to another for filing with the
clerk of the court will be deemed filed when presented to the clerk in the
same manner as an original document.
(4) Court personnel will not verify receipt of a facsimile transmission
by telephone or return transmission and persons transmitting by facsimile
shall not call the clerk's office to verify receipt.
(5) The clerk shall neither accept nor file a document unless it is on
bond paper.
(6) The clerk shall develop procedures for the collection of fax
service fees for those documents transmitted directly to the clerk.
Nonpayment of the fax service fee shall not affect the validity of the
filing.
(7) Agencies or individuals exempt from filing fees are not exempt from
the fax service fees for documents transmitted directly to the clerk.
[Adopted effective September 1, 1993.]
GR 18
JURY SOURCE LIST
(a) Effective Date. Effective September 1, 1994, all prospective jurors
shall be identified using the jury source list as herein provided.
(b) Jury Source List. "Jury source list" means the list of all registered
voters of a county, merged with a list of licensed drivers and identicard
holders who reside in that county. The list shall specify each person's first
and last name, middle initial, date of birth, gender and residence address.
When legally available for jury selection use, each such list shall also
specify each person's Social Security number.
(c) Order of the Supreme Court. The jury source list shall be created
utilizing the methodology and standards set forth by Supreme Court order and by
Laws of 1993, ch. 408, subsection 1.
(d) Juror Qualification Confirmation. Each court, after consultation with
the county auditor and county clerk of its jurisdiction, shall establish a
means to preliminarily determine by written declaration signed under penalty of
perjury by each person summoned, the qualifications set forth in RCW 2.36.070
of each person summoned for jury duty prior to the person's appearance at the
court to which the person is summoned to serve. Information so provided to the
court for preliminary determination of qualification for jury duty may only be
used for the term such person is summoned and may not be used for any other
purpose. Provided, that the court, or its designee, may report a change of
address or nondelivery of summons of persons summoned for jury duty to the
county auditor.
THE SUPREME COURT OF WASHINGTON
In the Matter of the Jury ) No.
Source List Pursuant )
to General Rule 18 )
of the Washington Rules ) ORDER
of Court )
General Rule 18 of the Washington Court Rules provides that the Supreme
Court of the State of Washington should designate by order the creation of the
jury source list.
Now, Therefore, It is hereby ordered:
That the jury source list shall be created according to the attached
appendix describing the methodology and standards for creating the jury source
list by merging the list of registered voters for a county with the list of
licensed drivers and identicard holders who reside in that county.
That each superior court shall receive a jury source list from the
Department of Information Services by May 1, 1994, and annually thereafter,
which list shall be created according to the methodology and standards set
forth in the attached appendix. Provided, that the jury source list may be
created, at the direction of the presiding judge of each superior court after
consultation with the county auditor and the county clerk of that jurisdiction,
by the county, according to the methodology and standards set forth in the
attached appendix. If a superior court elects to have the jury source list
created by the county the superior court shall so notify the Department of
Information Services annually by March 1, 1994, and that superior court shall
thereafter receive a separate list of licensed drivers and identicard holders
residing in that county and a separate list of registered voters residing in
that county from the Department of Information Services by April 1, 1994, and
annually thereafter.
That in the event, for any reason, the jury source list is not created and
available for use as set forth above, the most recent previously compiled jury
source list shall be used by the courts on an emergency basis only for the
shortest period of time until a current jury source list is created and
available for use as provided for herein.
Dated at Olympia, Washington, this ____ day of ___________, 19__.
___________________________________
Chief Justice
APPENDIX
This appendix describes the methodology for merging the list of registered
voters and the list of licensed drivers and identicard holders to form a jury
source list pursuant to GR 18 and the Supreme Court of Washington order to
which this appendix is attached. Records of persons from the list of licensed
drivers and identicard holders shall not be used in creating a jury source list
if their license or identicard has been expired longer than 90 days. Records
of persons from the registered voter list shall not be used in creating a jury
source list if they are in an inactive status.
Persons on the list of registered voters and on the list of licensed
drivers and identicard holders shall be identified based on the following data:
date of birth, last name, first name, middle initial, gender and county code to
reflect residence address. Upon notification by the Supreme Court of Washington
of the legal availability of the Social Security number for jury selection
purposes, the persons on each list shall also be identified by Social Security number.
The list of registered voters and the list of licensed drivers and
identicard holders shall be merged to form a jury source list.
Using the identifying information on each person, known duplicate names
shall be eliminated during the merging process so that the jury source list
shall contain, to the extent reasonably possible, each prospective juror's name
only once.
Suspected duplication of prospective jurors' names on the jury source list
which cannot be clearly confirmed at the time that the jury source list is
created shall be identified on the jury source list for further investigation
at the county level. For that purpose only, the jury source list shall identify
each person as having been originally listed on the list of registered voters,
or the list of licensed drivers and identicard holders, or both. Conflicts of
addresses shall be resolved by using the address most currently provided for
the lists from which the names originated.
If suspected duplication of names on the jury source list cannot be
resolved after reasonable efforts at the county level, the suspected duplicate
names shall be stricken from that jury source list.
Selection of persons for the master jury list from the jury source list,
and the designation of persons on the master jury list to be summoned, shall be
random and totally without regard to whether a person's name originally
appeared on the list of registered voters, or on the list of licensed drivers
and identicard holders, or both.
[Adopted effective September 1, 1994; amended September 1, 2009.]
GR
RULE 19
VIDEO CONFERENCE PROCEEDINGS
The Office of the Administrator for the Courts (OAC) shall
promulgate standards for facilities and equipment and provide
technical assistance to courts required.
[Adopted effective September 1, 1997; amended effective
December 28, 1999.]
RULE GR 20
SECURITY IN HANDLING COURT EXHIBITS
(a) Hazardous, Valuable, and Bulky Exhibits. Upon petition
of the clerk or any party and order of the court, a hazardous
exhibit, money, an item of negotiable value, or an item deemed to
be excessively bulky, may be admitted and then withdrawn upon the
substitution of photograph(s), videotape(s), samples or other
facsimile representations as provided by the order. The
photograph(s), videotape(s), samples or other facsimile
representations may be used to demonstrate the existence,
quantity, and physical characteristic of the evidence. The order
shall direct the disposition of the original evidence and shall
state whether the evidence shall be further documented by a
descriptive certificate issued by an authorized agency.
(b) Controlled Substances. When controlled substances or
samples thereof are presented in court, such items shall be
presented under sealed evidence tape in containers whose labels
describe their contents. Sealed controlled substances presented
as exhibits shall be unsealed in open court and, upon completion
of the action for which unsealing was ordered, the item shall be sealed again.
(c) Original Exhibit. When a photograph, videotape, or other
facsimile representation is substituted, the original exhibit
must be retained by the presenting party or agency until at least
sixty (60) days following case completion and must produce the
original exhibit upon the court's direction. Case completion is
defined as the date of filing of the judgment of acquittal, final
judgment, or dismissal, or the date the judgment becomes final after appeal.
(d) Appeal. Exhibits handled under these rules shall have
the same standing for purposes of appeal as would the original exhibits.
(e) Hazardous Exhibits. For purposes of this rule,
"hazardous exhibit" means an exhibit that unreasonably threatens
the health and safety of persons handling the exhibit, including
exhibits having potentially toxic, explosive, or disease-carrying
characteristics. Non-exclusive examples of hazardous exhibits
include firearms, knives and other weapons, live ammunition,
controlled substances, bodily fluid samples, and bloody clothing.
[Adopted effective September 1, 1997; amended effective September 1, 2000.]
GR 21
EMERGENCY COURT CLOSURE
(a.) Generally. A court may be closed if weather,
technological failure or other hazardous or emergency
conditions or events are or become such that the safety and
welfare of the employees are threatened or the court is
unable to operate or demands immediate action to protect the
court, its employees or property. Closure may be ordered by
the chief justice, the presiding chief judge, presiding
judge or other judge so designated by the affected court in
his or her discretion during the pendency of such conditions
or events.
(b.) Order and Notification. Whenever a court is closed in
accordance with section (a), the chief justice, presiding
chief judge, presiding judge or other judge directing the
closure of the court shall enter an administrative order
closing the court which shall be filed with the clerk of the
affected court. It shall also be the responsibility of the
chief justice, the presiding chief judge, the presiding
judge or other judge so designated by the affected court to
notify the Office of the Administrator for the Courts of any
decision to close a court. All oral notifications to the
Office of the Administrator for the Courts shall be followed
as soon as practicable with a written statement outlining
the condition or event necessitating such action and the
length of such closure.
(c.) Filings and Hearings - Time Extended. Reserved.
See GR 3.
[Adopted effective October 19, 1999.]
GR 22
ACCESS TO FAMILY LAW AND GUARDIANSHIP COURT RECORDS
(a) Purpose and Scope of this Rule. This rule governs access to family law
and guardianship court records, whether the records are maintained in paper
or electronic form. The policy of the courts is to facilitate public access
to court records, provided that such access will not present an unreasonable
invasion of personal privacy, will not permit access to records or
information defined by law or court rule as confidential, sealed, exempted
from disclosure, or otherwise restricted from public access, and will not be
unduly burdensome to the ongoing business of the courts.
(b) Definition and Construction of Terms.
(1) "Court record" is defined in GR 31 (c)(4).
(2) "Family law case or guardianship case" means any case filed under Chapters
11.88, 11.92, 26.09, 26.10, 26.12, 26.18, 26.21, 26.23, 26.26, 26.27, 26.50,
26.52, 73.36 and 74.34 RCW.
(3) "Personal Health Care Record" means any record or correspondence that
contains health information that: (1) relates to the past, present, or future
physical or mental health condition of an individual including past, present,
or future payments for health care; or (2) involves genetic parentage testing.
(4) "Personal Privacy" is unreasonably invaded only if disclosure of
information about the person or the family (a) would be highly offensive to a
reasonable person and (b) is not of legitimate concern to the public.
(5) "Public access" means unrestricted access to view or copy a requested
court record.
(6) "Restricted personal identifiers" means a party's social security number,
a party's driver's license number, a party's telephone number, financial
account numbers, social security number of a minor child and date of birth of a minor child.
COMMENT
A party is not required to provide a residence address. Petitioners or
counsel to a family law case will provide a service or contact address in
accordance with CR 4.1 that will be publicly available and all parties and
counsel should provide a contact address if otherwise required. Pattern forms
shall be modified, as necessary, to reflect the intent of this rule.
(7) "Retirement plan order" means a supplemental order entered for the sole
purpose of implementing a property division that is already set forth in a
separate order or decree in a family law case. A retirement plan order may not
grant substantive relief other that what is set forth in a separate order.
Examples of retirement plan orders are orders that implement a division of
retirement, pension, insurance, military, or similar benefits as already
defined in a decree of dissolution of marriage.
(8) "Sealed financial source documents" means income tax returns, W-2s and
schedules, wage stubs, credit card statements, financial institution
statements, checks or the equivalent, check registers, loan application
documents, retirement plan orders, as well as other financial information
sealed by court order.
(c) Access to Family Law or Guardianship Court Records.
(1) General Policy. Except as provided in RCW 26.26.610(2) and
subsections (c)(2) and (c)(3) below, all court records shall be open to the public for
inspection and copying upon request. The Clerk of the court may assess fees,
as may be authorized by law, for the production of such records.
(2) Restricted Access. The Confidential Information Form, Sealed Financial
Source Documents, Domestic Violence Information Form, Notice of Intent to
Relocate required by R.C.W. 26.09.440, Sealed Personal Health Care Record,
Retirement Plan Order, Confidential Reports as defined in (e)(2)(B), copies of
any unredacted Judicial Information System (JIS) database information
considered by the court for parenting plan approval as set forth in (f) of this
rule, and any Personal Information Sheet necessary for Judicial Information
System purposes shall only be accessible as provided in sections (h) and (i) herein.
(3) Excluded Records. This section (c) does not apply to court records that
are sealed as provided in GR 15, or to which access is otherwise restricted by law.
(d) Restricted Personal Identifiers Not Required - Except. Parties to a
family law case or the protected person in a guardianship case shall not be
required to provide restricted personal identifiers in any document filed with
the court or required to be provided upon filing a family law or guardianship
case, except:
(1) "Sealed financial source documents" filed in accordance with (g)(1).
(2) The following forms: Confidential Information Form, Domestic Violence
Information Form, Notice of Intent to Relocate required by R.C.W. 26.09.440,
Vital Statistics Form, Law Enforcement Information Form, Foreign Protection
Order Information Form, and any Personal Information Sheet necessary for
Judicial Information System purposes.
(3) Court requested documents that contain restricted personal identifiers,
which may be submitted by a party as financial source documents under the
provisions of section (g) of this rule.
COMMENT
Court records not meeting the definition of "Sealed Financial Source
Documents", "Personal Health Care Records", Retirement Plan Orders,
Confidential Reports or court records that otherwise meet the definition but
have not been submitted in accordance with (g)(1) are not automatically sealed.
Section (3) provides authority for the court to seal court records containing
restricted personal identifiers upon motion of a party, or on the court's own
motion during a hearing or trial.
(e) Filing of Reports in Family Law and Guardianship cases - Cover Sheet.
(1) This section applies to documents that are intended as reports to the
court in Family law and Guardianship cases including, but not limited to,
the following:
(A) Parenting evaluations;
(B) Domestic Violence Assessment Reports created by Family Court Services
or a qualified expert appointed by the court;
(C) Risk Assessment Reports created by Family Court Services or a
qualified expert;
(D) CPS Summary Reports created by Family Court Services or supplied
directly by Children's Protective Services;
(E) Sexual abuse evaluations; and
(F) Reports of a guardian ad litem or Court Appointed Special Advocate.
(2) Reports shall be filed as two separate documents, one public and one sealed.
(A) Public Document. The public portion of any report shall include a simple
listing of:
(i) Materials or information reviewed;
(ii) Individuals contacted;
(iii) Tests conducted or reviewed; and
(iv) Conclusions and recommendations.
(B) Sealed Document. The sealed portion of the report shall be filed with a
coversheet designated: "Sealed Confidential Report." The material filed with this
coversheet shall include:
(i) Detailed descriptions of material or information gathered or reviewed;
(ii) Detailed descriptions of all statements reviewed or taken;
(iii) Detailed descriptions of tests conducted or reviewed; and
(iv) Any analysis to support the conclusions and recommendations.
(3) The sealed portion may not be placed in the court file or used as an
attachment or exhibit to any other document except under seal.
(f) Information Obtained from JIS Databases with Regard to Approval of a
Parenting Plan.
When a judicial officer proposes to consider information from a JIS database
relevant to the placement of a child in a parenting plan, the judicial officer
shall either orally disclose on the record or disclose the relevant information
in written form to each party present at the hearing, and, on timely request,
provide any party an opportunity to be heard regarding that information. The
judicial officer has discretion not to disclose information that he or she does
not propose to consider. The judicial officer may restrict secondary
dissemination of written unredacted JIS database information not available to the public.
(g) Sealing Financial Source Documents, Personal Health Care Records, and
Sealed Confidential Reports in Family Law and Guardianship cases - Cover Sheet.
(1) Financial source documents, personal health care records, confidential
reports as defined in (e)(2)(B) of this rule, and copies of unredacted JIS
database records considered by the court for parenting plan approval as set
forth in (f) of this rule, shall be submitted to the clerk under a cover sheet
designated "SEALED FINANCIAL SOURCE DOCUMENTS", "SEALED PERSONAL HEALTH CARE
RECORDS", "SEALED CONFIDENTIAL REPORT" or "JUDICIAL INFORMATION SYSTEM DATABASE
RECORDS" for filing in the court record of family law or guardianship cases.
(2) All financial source documents, personal health care records, confidential
reports, or judicial information system database records so submitted shall be
automatically sealed by the clerk. The cover sheet or a copy thereof shall
remain part of the public court file.
(3) The court may order that any financial source documents containing
restricted personal identifiers, personal health care records, any report
containing information described in (e)(2)(B), or copies of unredacted JIS
database records considered by the court for parenting plan approval as
described in (f) be sealed, if they have not previously automatically been
sealed pursuant to this rule.
(4) These coversheets may not be used for any documents except as provided in
this rule. Sanctions may be imposed upon any party or attorney who violates this rule.
COMMENT
See comment to (d)(3) above.
(h) Access by Courts, Agencies, and Parties to Restricted Documents.
(1) Unless otherwise provided by statute or court order, the following persons
shall have access to all records in family law or guardianship cases:
(A) Judges, commissioners, other court personnel, the Commission on
Judicial Conduct, and the Certified Professional Guardian Board may access and
use restricted court records only for the purpose of conducting official
business of the court, Commission, or Board.
(B) Any state administrative agency of any state that administers
programs under Title IV-A, IV-D, IV-E, or XIX of the federal Social Security Act.
(2) Except as otherwise provided by statute or court order, the following
persons shall have access to all documents filed in a family law or
guardianship case, except the Personal Information Sheet, Vital Statistics
Form, Confidential Information Form, Domestic Violence Information Form, Law
Enforcement Information Form, and Foreign Protection Order Form.
(A) Parties of record as to their case.
(B) Attorneys as to cases where they are attorneys of record.
(C) Court appointed Title 11 guardians ad litem as to cases where they are
actively involved.
(i) Access to Court Records Restricted Under This Rule.
(1) The parties may stipulate in writing to allow public access to any court
records otherwise restricted under section (c)(2) above.
(2) Any person may file a motion, supported by an affidavit showing good
cause, for access to any court record otherwise restricted under section (c)(2)
above, or to be granted access to such court records with specified information
deleted. Written notice of the motion shall be provided to all parties in the
manner required by the Superior Court Civil Rules. If the person seeking
access cannot locate a party to provide the notice required by this rule, after
making a good faith reasonable effort to provide such notice as required by the
Superior Court Rules, an affidavit may be filed with the court setting forth
the efforts to locate the party and requesting waiver of the notice provision
of this rule. The court may waive the notice requirement of this rule if the
court finds that further good faith efforts to locate the party are not likely
to be successful, or if the motion requests access to redacted JIS database records.
(A) The court shall allow access to court records restricted under this rule,
or relevant portions of court records restricted under this rule, if the court finds
that the public interests in granting access or the personal interest of the person
seeking access outweigh the privacy and safety interests of the parties or dependent children.
(B) Upon receipt of a motion requesting access, the court may provide access
to JIS database records described in (f) after the court has reviewed the JIS database
records and redacted pursuant to GR 15 (c), any data which is confidential or restricted
by statute or court rule.
(C) If the court grants access to restricted court records, the court may enter
such orders necessary to balance the personal privacy and safety interests of the parties
or dependent children with the public interest or the personal interest of the party seeking
access, consistent with this rule.
[Adopted effective October 1, 2001; amended effective July 1, 2006; amended effective August 11, 2009.]
GR 23
Rule for Certifying Professional Guardians
(a) Purpose and Scope. This rule establishes the standards and criteria
for the certification of professional guardians as defined by RCW 11.88.008 and
prescribes the conditions of and limitations upon their activities. This rule
does not duplicate the statutory process by which the courts supervise
guardians nor is it a mechanism to appeal a court decision regarding the
appointment or conduct of a guardian.
(b) Jurisdiction. All professional guardians who practice in the state of
Washington are subject to these rules and regulations. Jurisdiction shall
continue whether or not the professional guardian retains certification under
this rule, and regardless of the professional guardian's residence.
(c) Certified Professional Guardian Board.
(1) Establishment.
(i) Membership. The Supreme Court shall appoint a Certified
Professional Guardian Board ("Board") of 12 or more members. The Board shall
include representatives from the following areas of expertise: professional
guardians; attorneys; advocates for incapacitated persons; courts; state
agencies; and those employed in medical, social, health, financial, or other
fields pertinent to guardianships. No more than one-third of the Board
membership shall be practicing professional guardians.
(ii) Terms. The term for a member of the Board shall be three years.
No member may serve more than three consecutive full three-year terms, not to
exceed nine consecutive years, including any unfilled term. Terms shall be
established such that one-third shall end each year. All terms of office begin
October 1 and end September 30 or when a successor has been appointed,
whichever occurs later.
(iii) Leadership. The Supreme Court shall designate the Chair of the
Board. The Board shall designate the Vice-Chair, who shall serve in the
absence of or at the request of the Chair.
(iv) Vacancies. Any vacancy occurring in the terms of office of Board
members shall be filled for the unexpired term.
(2) Duties and Powers.
(i) Applications. The Board shall process applications for
professional guardian certification under this rule. The Board may delay or
deny certification if an applicant fails to provide required basic or
supplemental information.
(ii) Standards of Practice. The Board shall adopt and implement
policies or regulations setting forth minimum standards of practice which
professional guardians shall meet.
(iii) Training Program. The Board shall adopt and implement
regulations establishing a professional guardian training program.
(iv) Examination. The Board may adopt and implement regulations
governing the preparation and administration of certification examinations.
(v) Recommendation of Certification. The Board may recommend
certification to the Supreme Court. The Supreme Court shall review the Board's
recommendation and enter an appropriate order.
(vi) Denial of Certification. The Board may deny certification.
If the Board denies certification, it shall notify an applicant in writing of
the basis for denial of certification and inform the applicant of the appeal process.
(vii) Continuing Education. The Board may adopt and implement
regulations for continuing education.
(viii) Grievances and Disciplinary Sanctions. The Board shall
adopt and implement procedures to review any allegation that a professional
guardian has violated an applicable statute, fiduciary duty, standard of
practice, rule, regulation, or other requirement governing the conduct of
professional guardians. The Board may take disciplinary action and impose
disciplinary sanctions based on findings that establish a of violation of an
applicable statute, duty, standard of practice, rule, regulation or other
requirement governing the conduct of professional guardians. Sanctions may
include decertification or lesser remedies or actions designed to ensure
compliance with duties, standards, and requirements for professional guardians.
(ix) Investigation. The Board may investigate to determine
whether an applicant for certification meets the certification requirements
established in this rule. The Board may also investigate to determine whether
a professional guardian has violated any statute, duty, standard of practice, rule,
regulation, or other requirement governing the conduct of professional guardians.
(x) Authority to Conduct Hearings. The Board may adopt
regulations pertaining to the orderly conduct of hearings.
a) Subpoenas. The Chair of the Board, Hearing Officer, or
a party's attorney shall have the power to issue subpoenas.
b) Orders. The Chair or Hearing Officer may make such pre-hearing
or other orders as are necessary for the orderly conduct of any hearing.
c) Enforcement. The Board may refer a Subpoena or order to
the Supreme Court for enforcement.
(xi) Disclosure of Records. The Board may adopt regulations pertaining
to the disclosure of records in the Board's possession.
(xii) Meetings. The Board shall hold meetings as determined to be
necessary by the chair. Meetings of the Board will be open to the public
except for executive session, review panel, or disciplinary meetings prior to
filing of a disciplinary complaint.
(xiii) Fees. The Board shall establish and collect fees in such amounts
as are necessary to support the duties and responsibilities of the Board.
(3) Board Expenses. Board members shall not be compensated for their
services. Consistent with the Office of Financial Management rules, Board
members shall be reimbursed for actual and necessary expenses incurred in the
performance of their duties. All expenses shall be paid pursuant to a budget
submitted to and approved by the Supreme Court. Funds accumulated from examination
fees, annual fees, and other revenues shall be used to defray Board expenses.
(4) Agency. Hearing officers are agents of the Board and are accorded
rights of such agency.
(5) Immunity from Liability. The Board, its members, or agents, including
duly appointed hearing officers, shall enjoy quasi-judicial immunity if the
Supreme Court would have immunity in performing the same functions.
(6) Conflict of Interest. A Board member should disqualify himself or
herself from making any decisions in a proceeding in which his or her
impartiality might reasonably be questioned, including but not limited to, when
the Board member has a personal bias or prejudice concerning a party or
personal knowledge of disputed evidentiary facts concerning the proceeding.
(7) Leave of Absence. The Board may adopt regulations specifying that a
Board member who is the subject of a disciplinary investigation by the Board
must take a leave of absence from the Board. A Board member may not continue
to serve as a member of the Board if the Board or Supreme Court has imposed a
final disciplinary sanction on the Board member.
(8) Administration. The Administrative Office of the Courts (AOC) shall
provide administrative support to the Board and may contract with agencies or
organizations to carry out the Board's administrative functions.
(d) Certification Requirements. Applicants, Certified Professional
Guardians, and Certified Agencies shall comply with the provisions of Chapter
11.88 and 11.92 RCW. In addition, individuals and agencies must meet the
following requirements.
(1) Individual Certification. The following requirements apply to
applicants and do not apply to currently certified professional guardians,
except as stated in subsection (d)(1)(vii). An individual applicant shall:
(i) Be at least 18 years of age;
(ii) Be of sound mind;
(iii) Have no felony or misdemeanor convictions involving moral turpitude;
(iv) Possess an associate's degree from an accredited institution
and at least four full years' experience working in a discipline pertinent to
the provision of guardianship services, or a baccalaureate degree from an
accredited institution and at least two full years' experience working in a
discipline pertinent to the provision of guardianship services, or a Masters,
J.D., Ph.D., or equivalent advanced degree from an accredited institution and
at least one year experience working in a discipline pertinent to the provision
of guardianship services;
(v) The experience required by this rule is experience in which
the applicant has developed skills that are transferable to the provision of
guardianship services and must include decision-making or the use of
independent judgment for the benefit of others, not limited to incapacitated
persons, in the area of legal, financial, social services or healthcare or
other disciplines pertinent to the provision of guardianship services;
(vi) Have completed the mandatory certification training.
(vii) Applicants enrolled in the mandatory certification training on
September 12, 2008, and who satisfactorily complete that training, shall meet
the certification requirements existing on that date, or the date the applicant
submitted a complete application for certification, whichever date is earlier,
and not the requirements set forth in this rule.
(2) Agency Certification. Agencies must meet the following additional requirements:
(i) All officers and directors of the corporation must meet the
qualifications of Chapter 11.88.020 RCW for guardians;
(ii) Each agency shall have at least two (2) individuals in the
agency certified as professional guardians, whose residence or principal place
of business is in Washington State and who are so designated in minutes or a
resolution from the Board of Directors; and
(iii) Each agency shall file and maintain in every guardianship
court file a current designation of each certified professional guardian with
final decision-making authority for the incapacitated person or their estate.
(3) Training Program and Examination. Applicants must satisfy the Board's
training program and examination requirements.
(4) Insurance Coverage. In addition to the bonding requirements of
Chapter 11.88 RCW, applicants must be insured or bonded at all times in such
amount as may be determined by the Board and shall notify the Board immediately
of cancellation of required coverage.
(5) Financial Responsibility. Applicants must provide proof of ability to
respond to damages resulting from acts or omissions in the performance of
services as a guardian. Proof of financial responsibility shall be in such
form and in such amount as the Board may prescribe by regulation.
(6) Application Under Oath. Applicants must execute and file with the
Board an approved application under oath.
(7) Application Fees. Applicants must pay fees as the Board may require
by regulation.
(8) Disclosure. An applicant for certified professional guardian or
certified agency shall disclose upon application:
(i) The existence of a judgment against the applicant arising from
the applicant's performance of services as a fiduciary;
(ii) A court finding that the applicant has violated its duties as
a fiduciary, or committed a felony or any crime involving moral turpitude;
(iii) Any adjudication of the types specified in RCW 43.43.830, and RCW 43.43.842;
(iv) Pending or final licensing or disciplinary board actions or
findings of violations;
(v) The existence of a judgment against the applicant within the
preceding eight years in any civil action;
(vi) Whether the applicant has filed for bankruptcy within the
last seven years. Disclosure of a bankruptcy filing within the past seven
years may require the applicant or guardian to provide a personal credit report
from a recognized credit reporting bureau satisfactory to the Board;
(vii) The existence of a judgment against the applicant or any
corporation, partnership or limited liability corporation for which the
applicant was a managing partner, controlling member or majority shareholder
within the preceding eight years in any civil action.
(9) Denial of Certification. The Board may deny certification of an
individual or agency based on any of the following criteria:
(i) Failure to satisfy certification requirements provided in section (d)
of this rule;
(ii) The existence of a judgment against the applicant arising from the
applicant's performance of services as a fiduciary;
(iii) A court finding that the applicant has violated its fiduciary
duties or committed a felony or any crime involving moral turpitude;
(iv) Any adjudication of the types specified in RCW 43.43.830, and RCW 43.43.842;
(v) Pending or final licensing or disciplinary board actions or findings
of violations;
(vi) A Board determination based on specific findings that the applicant
lacks the requisite moral character or is otherwise unqualified to practice as
a professional guardian;
(vii) A Board determination based on specific findings that the
applicant's financial responsibility background is unsatisfactory.
(10) Designation/Title. An individual certified under this rule may use
the initials "CPG" following the individual's name to indicate status as
"Certified Professional Guardian." An agency certified under this rule may
indicate that it is a "Certified Professional Guardian Agency" by using the
initials "CPGA" after its name. An individual or agency may not use the term
"certified professional guardian" or "certified professional guardian agency"
as part of a business name.
(e) Guardian Disclosure Requirements.
(1) A Certified Professional Guardian or Certified Agency shall disclose
to the Board in writing within 30 days of occurrence:
(i) The existence of a judgment against the professional guardian arising
from the professional guardian's performance of services as a fiduciary;
(ii) A court finding that the professional guardian violated its
fiduciary duties, or committed a felony or any crime involving moral turpitude;
(iii) Any adjudication of the types specified in RCW 43.43.830, and RCW 43.43.842;
(iv) Pending licensing or disciplinary actions related to fiduciary
responsibilities or final licensing or disciplinary actions resulting in
findings of violations;
(v) Residential or business moves or changes in employment; and
(vi) Names of Certified Professional Guardians they employ or who leave
their employ.
(2) Not later than June 30 of each year, each professional guardian and
guardian agency shall complete and submit an annual disclosure statement
providing information required by the Board.
(f) Regulations. The Board shall adopt regulations to implement this rule.
(g) Personal Identification Number. The Board shall establish an
identification numbering system for professional guardians. The Personal
Identification Number shall be included with the professional guardian's
signature on documents filed with the court.
(h) Ethics Advisory Opinions.
(1) The Board may issue written ethics advisory opinions to inform and advise
Certified Professional Guardians and Certified Agencies of their ethical obligations.
(2) Any Certified Professional Guardian or Certified Agency may request in
writing an ethical advisory opinion from the Board. Compliance with an opinion
issued by the Board shall be considered as evidence of good faith in any
subsequent disciplinary proceeding involving a Certified Professional Guardian
or Certified Agency.
(3) The Board shall publish opinions issued pursuant to this rule in
electronic or paper format. The identity of the person requesting an opinion
is confidential and not public information.
(i) Existing Law Unchanged. This rule shall not expand, narrow, or
otherwise affect existing law, including but not limited to, Title 11 RCW.
[Adopted effective January 25, 2000; amended effective April 30, 2002; amended
effective April 1, 2003; September 1, 2004, amended effective January 13, 2009;
amended effective September 1, 2010]
GENERAL RULE 24
DEFINITION OF THE PRACTICE OF LAW
(a) General Definition: The practice of law is the
application of legal principles and judgment with regard
to the circumstances or objectives of another entity or
person(s) which require the knowledge and skill of a
person trained in the law. This includes but is not
limited to:
(1) Giving advice or counsel to others as to their
legal rights or the legal rights or responsibilities of
others for fees or other consideration.
(2) Selection, drafting, or completion of legal
documents or agreements which affect the legal rights of
an entity or person(s).
(3) Representation of another entity or person(s) in a
court, or in a formal administrative adjudicative
proceeding or other formal dispute resolution process or
in an administrative adjudicative proceeding in which
legal pleadings are filed or a record is established as
the basis for judicial review.
(4) Negotiation of legal rights or responsibilities on
behalf of another entity or person(s).
(b) Exceptions and Exclusions: Whether or not they
constitute the practice of law, the following are
permitted:
(1) Practicing law authorized by a limited license to
practice pursuant to Admission to Practice Rules 8 (special
admission for: a particular purpose or action; indigent
representation; educational purposes; emeritus membership;
house counsel), 9 (legal interns), 12 (limited practice for
closing officers), or 14 (limited practice for foreign law
consultants).
(2) Serving as a courthouse facilitator pursuant to court
rule.
(3) Acting as a lay representative authorized by
administrative agencies or tribunals.
(4) Serving in a neutral capacity as a mediator, arbitrator,
conciliator, or facilitator.
(5) Participation in labor negotiations, arbitrations or
conciliations arising under collective bargaining rights or
agreements.
(6) Providing assistance to another to complete a form
provided by a court for protection under RCW chapters 10.14
(harassment) or 26.50 (domestic violence prevention) when no
fee is charged to do so.
(7) Acting as a legislative lobbyist.
(8) Sale of legal forms in any format.
(9) Activities which are preempted by Federal law.
(10) Serving in a neutral capacity as a clerk or court
employee providing information to the public pursuant to
Supreme Court Order.
(11) Such other activities that the Supreme Court has
determined by published opinion do not constitute the
unlicensed or unauthorized practice of law or that have been
permitted under a regulatory system established by the Supreme
Court.
(c) Non-lawyer Assistants: Nothing in this rule shall
affect the ability of non-lawyer assistants to act under
the supervision of a lawyer in compliance with Rule 5.3
of the Rules of Professional Conduct.
(d) General Information: Nothing in this rule shall
affect the ability of a person or entity to provide
information of a general nature about the law and legal
procedures to members of the public.
(e)Governmental agencies: Nothing in this rule shall
affect the ability of a governmental agency to carry out
responsibilities provided by law.
(f) Professional Standards: Nothing in this rule shall
be taken to define or affect standards for civil
liability or professional responsibility.
[Adopted effective September 1, 2001;
amended effective April 30, 2002.]
GENERAL RULE 25
PRACTICE OF LAW BOARD
(a) Purpose. The purpose of this rule is to create a Practice of
Law Board in order to promote expanded access to affordable and
reliable legal and law-related services, expand public confidence in
the administration of justice, make recommendations regarding the
circumstances under which non-lawyers may be involved in the delivery
of certain types of legal and law-related services, enforce rules
prohibiting individuals and organizations from engaging in
unauthorized legal and law-related services that pose a threat to the
general public, and to ensure that those engaged in the delivery of
legal services in the state of Washington have the requisite skills
and competencies necessary to serve the public.
(b) Appointment. The Practice of Law Board shall consist of 13
members, at least four of whom shall be non-lawyers. The appointments
shall be made by the Supreme Court after considering nominations from
the Board of Governors of the Washington State Bar Association and
other interested people and organizations. The members shall be
appointed to staggered 3-year terms of 3 years and no member may serve
more than 2 consecutive full 3-year terms. Any vacancy shall be
filled for the unexpired term. The Supreme Court shall annually
designate a chair and vice-chair, who shall be members of the Board.
(c) Powers of the Practice of Law Board.
(1) Advisory Opinions. On request of any person, or in
connection with the consideration of any complaint or any
investigation made on its own initiative, the Board may render
advisory opinions relating to the authority of non-lawyers to perform
legal and law-related services and arrange for their publication. No
opinion shall be rendered if, to the Board's knowledge, the subject
matter either involves or might affect a case or controversy pending
in any court. An advisory opinion shall be issued by the Board in
writing and shall be transmitted to the person making the inquiry. At
the direction of the Board, an opinion may be published in the
Washington State Bar News. Published opinions shall not, insofar as
practicable, identify the party or parties making an inquiry, or the
complainant or respondent.
(2) Complaints. The Board shall have jurisdiction over and
shall inquire into and consider complaints alleging the unauthorized
practice of law by any person or entity in accordance with the
procedures outlined in this rule.
(3) Investigation. The Board may, on its own initiative, and
without any complaint being made to it, investigate any condition or
situation of which it becomes aware that may involve the unauthorized
practice of law.
(4) Recommendations to the Supreme Court Regarding the Provision
of Legal and Law-Related Services by Non-Lawyers. On request of the
Supreme Court or any person or organization, or on its own initiative,
the Board may recommend that non-lawyers be authorized to engage in
certain defined activities that otherwise constitute the practice of
law as defined in GR 24. In forwarding a recommendation that non-
lawyers be authorized to engage in certain legal or law-related
activities that constitute the practice of law as defined in GR 24,
the Board shall determine whether regulation under authority of the
Supreme Court (including the establishment of minimum and uniform
standards of competency, conduct, and continuing education) is
necessary to protect the public interest. Any recommendation that non-
lawyers be authorized to engage in the limited provision of legal or
law-related services shall be accompanied by a determination:
(A) that access to affordable and reliable legal and law-
related services consistent with protection of the public will be
enhanced by permitting non-lawyers to engage in the defined activities
set forth in the recommendation;
(B) that the defined activities outlined in the
recommendation can be reasonably and competently provided by skilled
and trained non-lawyers;
(C) if the public interest requires regulation under
authority of the Supreme Court, such regulation is tailored to promote
access to affordable legal and law-related services while ensuring
that those whose important rights are at stake can reasonably rely on
the quality, skill and ability of those non-lawyers who will provide
such services;
(D) that, to the extent that the activities authorized will
involve the handling of client trust funds, provision has been made to
ensure that such funds are handled in a manner consistent with RPC
1.15A and APR 12.1, including the requirement that such funds be
placed in interest bearing accounts, with interest paid to the Legal
Foundation of Washington; and
(E) that the costs of regulation, if any, can be
effectively underwritten within the context of the proposed regulatory regime.
Recommendations to authorize non-lawyers to engage in the limited
practice of law pursuant to this section shall be forwarded to the
Washington State Board of Governors for consideration and comment
before transmission to the Supreme Court. Upon approval of such
recommendations by the Supreme Court pursuant to the procedures set
out in GR 9, those who meet the requirements and comply with
applicable regulatory and licensing provisions shall be deemed to be
engaged in the authorized practice of law.
(d) Expenses of the Practice of Law Board. The Practice of Law
Board shall be supported through annual commitments from the
Washington State Bar Association and through a portion of other
licensing fees established by the Supreme Court for non-lawyers
authorized to engage in the regulated practice of law. The Board shall
be administered and staffed by the Washington State Bar which shall
pay all expenses reasonably and necessarily incurred by the Board,
pursuant to a budget approved by the Board of Governors. Members of
the Board shall not be compensated for their services, but shall be
reimbursed for their necessary expenses incurred in connection with
the Board in a manner consistent with the Association's reimbursement policies.
(e) Records. All records of the Board shall be filed and
maintained at the principal office of the Association.
(f) Procedure.
(1) Committees. The Board may establish such committees as the
membership may deem necessary and appropriate to the performance of
its assigned tasks.
(2) Quorum. A majority of the Board shall constitute a quorum.
The chairperson of the Board may appoint temporary members of the
Board or a committee when a member is disqualified or unable to
function on a specific matter for good cause.
(3) Action by Board. The full jurisdiction and authority of the
Board, as provided in this rule, may be exercised by a committee,
except that (1) no advisory opinion may be given without the approval
of a majority of the Board; (2) no determination of the unauthorized
practice of law by a respondent and referral of a matter to a law
enforcement or other agency may be made without the approval of a
majority of the Board: and (3) the action of a committee on any matter
shall be subject to review and the approval or disapproval of the Board.
(4) Formal Complaint Procedure.
(A) Preliminary Investigation. The investigation or review
of a complaint shall be promptly instituted by the Board or by a
member thereof designated by the chair of the Board. If a complaint
has been filed, the investigating member shall interview the
complainant and respondent and shall conduct such further
investigation as is deemed appropriate.
(B) Report and Written Agreement. Upon the conclusion of
an investigation of a complaint, a report shall be made to the Board.
If, after consideration of the report, the Board concludes that there
has been no unauthorized practice of law, the complaint shall be
dismissed and the Board shall so notify the complainant and the
respondent in writing and shall close the file in the matter. If the
Board concludes that there has been unauthorized practice of law, the
Board shall attempt to persuade the respondent to enter into a written
agreement to refrain from such conduct in the future. The written
agreement may include a stipulation to penalties in the event of
continued violation.
(C) Pending Controversy. The Board may defer investigation
if, to the Board's knowledge, the conduct complained of is the subject
matter of or might affect a case or controversy pending in any court.
(D) Informal Disposition. The Board may attempt to arrive
at an amicable disposition of any matter within its jurisdiction with
the respondent. At any time during the pendency of a matter before
it, the Board may conduct an informal conference with the respondent.
At the Board's discretion, an electronic recording or written
transcription of the proceeding may be made. A respondent subject to
an informal conference may be represented by counsel. After a finding
by the Board of the unauthorized practice of law, the Board shall
endeavor to have the respondent enter into a written agreement to
refrain in the future from such conduct. If the respondent declines
to enter into a written agreement pursuant to this rule, the Board
shall refer the matter to an appropriate law enforcement or other
agency in accordance with this rule.
(g) Petitions for Review.
(1) Notice. Within 20 days after an opinion is published, or
within 30 days after any final action of the Board other than the
publication of any opinion, any aggrieved member of the bar, bar
association, person or entity may seek review thereof by serving on
the Board a notice of petition for review by the Supreme Court and by
filing the original notice with the Clerk of the Supreme Court. The
notice shall set forth the petitioner's name and address and, if
represented, the name and address of counsel. The notice shall
designate the action of the Board sought to be reviewed and shall
concisely state the manner in which the petitioner is aggrieved.
(2) Procedure. Petitions for review to the Supreme Court shall
comply with the Rules for Appellate Procedure.
(3) Final Determination. The final determination of a petition
for review may be either by written opinion or by order of the Supreme
Court and shall state whether the opinion or the action of the Board
is affirmed, reversed or modified or shall provide for such other
final disposition as is appropriate.
(h) Referral to Enforcement Agency.
(1) Referral. When the Board concludes from its preliminary
investigation, or from the failure of an informal conference as
provided in these rules, that an amicable disposition of any matter
within its jurisdiction cannot be effected with the respondent, it
shall, based upon the nature of the complaint, the relief sought, and
the facts as then known, refer the matter to the law enforcement or
other agency the Board determines is best suited to conduct an
investigation and any prosecution of such matter.
(2) Contents of File. Upon making a determination that an
amicable disposition of a matter cannot be effected, and that the
matter should be referred to a particular law enforcement or other
agency, the Board shall send such agency the original complaint,
response, evidence or other proof, investigative report and, if an
informal conference has been conducted, a transcript of such
proceedings. The Board shall retain copies of all such documents for its file.
(3) Notice to Complainant. Upon referring a matter to a law
enforcement or other agency, the Board shall notify the complainant of
such action in writing.
(i) Immunity from Suit.
(1) The members and staff of the Board shall be absolutely
immune from suit, whether legal or equitable in nature, for any
conduct in the performance of their official duties.
(2) Persons who bring allegations concerning any individual or
entity to the Board shall be immune from suit, whether legal or
equitable in nature, for all communications to the Board or to its staff.
(j) Regulations. The Board may adopt regulations pertinent to these
powers subject to the approval of the Supreme Court.
[Adopted effective September 1, 2001; September 1, 2006.]
PRACTICE OF LAW BOARD
REGULATIONS
REGULATION 1. PURPOSE
The purpose of these regulations is to establish procedures for
the Practice of Law Board (POL Board) in order to carry out its
purposes and exercise its powers pursuant to General Rule 25 (GR 25).
REGULATION 2. PRACTICE OF LAW
General Rule 24 (GR 24), Definition of the Practice of Law,
including any amendments, provides the framework by which the POL
Board will carry out its purposes and exercise its powers as set
forth in GR 25.
REGULATION 3. ESTABLISHMENT OF THE BOARD
A. Board Members. The POL Board shall consist of 13 members
(Member[s]) appointed by the Supreme Court of the State of
Washington (Supreme Court) at least four of whom shall be non-
lawyer Washington residents and the remainder of whom shall be
lawyers licensed to practice law in Washington. Appointments to
the POL Board shall be made by the Supreme Court after
considering nominations from the WSBA Board of Governors (WSBA
Board) and any other interested people or organizations.
B. Member Terms. The Members shall initially be appointed to
staggered terms of one to three years. Thereafter, appointments
shall be for three-year terms. No Member may serve more than two
consecutive three-year terms.
C. Resignation. A member may resign from the POL Board by
letter addressed to the POL Board and the Supreme Court with
resignation to be effective two days following the date of the
letter or any effective date thereafter which may be specified in
the letter.
D. Vacancies. A membership vacancy shall be deemed to occur on
the resignation of a Member or upon declaration of a vacancy by
the Supreme Court following any request to the Supreme Court by
the POL Board for the reasons set forth in section O below, or if
a Member has three consecutive unexcused absences from regular
POL Board meetings or is not present at more than a majority of
the POL Board meetings during any 12-month period as determined
by the chairperson. A membership vacancy shall be filled by the
Supreme Court for the unexpired term.
E. Administration of Board. The Washington State Bar
Association (WSBA), in consultation with the POL Board, shall
provide the POL Board with an administrator (Board Administrator)
and any additional staff support as designated by the Executive
Director of the WSBA. The Board Administrator shall not be
entitled to vote on POL Board matters.
F. Funding and Expenses. The POL Board shall prepare an annual
budget to be submitted for approval and on a schedule set by the
WSBA Board of Governors. The WSBA shall pay all expenses
reasonably and necessarily incurred by the POL Board pursuant to
the budget and the expense policy of the WSBA. Funding for the
POL Board shall be provided by annual commitments from the WSBA
and through a portion of other licensing fees established by the
Supreme Court.
G. Officers. The Supreme Court shall annually designate a
chairperson and a vice-chairperson from among the POL Board membership.
H. Regular Meetings. The POL Board shall meet as necessary to
complete its business not less than once per year as determined
by the POL Board or upon call of the chairperson.
I. Regular Meeting / Agenda Notice. The POL Board may file
with the Code Reviser a schedule of the time and place of
regularly scheduled meetings in January of each year for
publication in the Washington State Register. The POL Board
shall post an agenda for each regular meeting on the
Administrative Office of the Courts website or the WSBA website
at least seven days prior to the meeting.
J. Special Meetings. A special meeting of the POL Board may be
called at any time by the chairperson or by a majority of the POL
Board membership by delivering written notice personally, by
mail, or by e-mail to each Member at least two business days
before the time of such meeting and by providing notice of the
special meeting to the public on the Administrative Office of the
Courts website or the WSBA website.
K. Voting. Each Member shall be entitled to one vote on each
matter submitted to a vote at a meeting of the POL Board. A
majority vote of the Members present at a meeting at which a
quorum exists shall, unless a greater vote is required by other
provisions of these regulations or by GR 25, decide any issue submitted.
L. Quorum. A majority of the Members shall constitute a
quorum. The chairperson may appoint temporary members of the POL
Board (or any designated committee) from among former members of
the POL Board when a Member is disqualified or unable to function
on a specific matter, for good cause. If less than a quorum is
present at a meeting, a majority of the Members present may
adjourn the meeting and continue it to a later date and time upon
notice. At any reconvened meeting at which a quorum is present,
any business may be transacted which might have been transacted
at the adjourned meeting. Members present at a properly called
meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of Members leaving less than a quorum.
M. Action by Communication Equipment. The Members or any
designated committee may participate in a meeting of the POL
Board or such designated committee by means of a conference phone
or similar communications equipment by which all persons
participating in the meeting can hear each other at the same
time, and participation by such means will constitute presence in
person at a meeting.
N. Action Without a Meeting. Any action required or permitted
to be taken at a POL Board meeting in Executive Session may be
taken without a meeting if a written consent setting forth the
action taken or to be taken is signed by each of the Members.
Any such written consent (including facsimile and digital
signatures) shall be inserted in the minute book as if it were
the minutes of a POL Board meeting in Executive Session.
Further, such consent shall have the same force and effect as a
unanimous vote, and may be stated as such in any document filed
for the public record.
O. Removal of a Member. The POL Board may request the Supreme
Court to declare a membership vacancy with respect to any Member
whose removal from the POL Board would, upon a two-thirds vote of
the POL Board excluding the affected Member, be in the best
interest of the POL Board; however, such action may only be taken
by the POL Board at a regular or special meeting following notice
of such proposed action.
P. Committees. The POL Board may establish such committees as
the POL Board deems necessary and appropriate with each committee
(designated committee) having a specified function determined by
the POL Board and having the full jurisdiction and authority of
the POL Board as provided in GR 25, except that: 1) no advisory
opinion may be issued without the approval of the POL Board; 2)
no determination of the unauthorized practice of law by a
respondent and referral of a matter to a law enforcement or other
agency may be made without the approval of the POL Board; and 3)
the action of a designated committee on any matter shall be
subject to review and approval/disapproval of the POL Board. The
chairperson shall designate a committee chair for each designated
committee to serve for a one-year term.
Q. Records. The Board Administrator shall maintain minutes of
the POL Board and its designated committees, deliberations,
recommendations, and decisions. All records of the POL Board and
its committees shall be filed and maintained at the principal
office of the WSBA.
R. R. Open Meeting and Records. All records, files, meetings and proceedings
of the POL Board and its designated committees shall be open and public,
except that the POL Board may meet in executive session and records and files
may be made confidential where the preservation of confidentiality is desirable
or where public disclosure might result in the violation of individual rights or
in unwarranted private or personal harm. All discussions of particular complaints
and investigations will be held in Executive Session. Nothing in these regulations
shall be construed to deny access to relevant information by professional licensing
or discipline agencies, or other law enforcement authorities, as the Board shall authorize.
S. Public Participation. The chairperson or the chair of any
designated committee may allow for public participation at any
meeting. Members of the public who wish to address the POL Board
or a designated committee at any meeting shall be required to
provide contact information on a form provided for that purpose
and shall be required to comply with any time limitation deemed
appropriate by the chairperson or the designated committee chair.
T. Letterhead. Use of POL Board letterhead shall be limited to
official business of the POL Board and specifically shall not be
used in connection with any political campaign or to support or
oppose any public issue unless the POL Board has taken a position
on the issue; to support or oppose any political candidate; or
for personal or charitable purposes.
REGULATIONS 4. CONFLICT OF INTEREST.
A. In General. A Member who has or has had a lawyer/client
relationship or financial relationship with, or who is an
immediate family member of, a person or entity who is a
complainant or the subject of a matter before the POL Board shall
not participate in the investigation or deliberation on any
matter involving that complainant, person, or entity. No WSBA
employee shall participate in deliberation on any matter which is
pending in, or likely to be referred to, the WSBA attorney
disciplinary system or bar admission.
B. Disclosure. A Member with a past or present relationship,
other than that as provided in section A above, with a person or
entity who is the complainant or subject of a matter before the
POL Board, shall disclose such relationship to the POL Board and,
if the POL Board deems it appropriate, that Member shall not
participate in any action relating to that matter.
REGULATION 5. ADVISORY OPINIONS.
A. Requests for Advisory Opinions. Any person may request an
advisory opinion from the POL Board relating to the authority of
a non-lawyer to perform legal and law-related services. Such
requests shall be in writing in a form and in a manner prescribed
by the POL Board and signed by the person requesting the opinion.
B. Board Initiated Advisory Opinions. The POL Board may render
advisory opinions relating to the authority of non-lawyers to
perform legal and law-related services in connection with the
consideration of any complaint or in any investigation made on
its own initiative relating to the unauthorized practice of law
by any person or entity.
C. Notice of Request. The POL Board may give notice to any
person or entity, either personally or by publication, of any
pending request for an advisory opinion or pending POL Board
initiated advisory opinion, and invite written comments regarding
the pending advisory opinion.
D. Pending Controversy. The POL Board may not render an
advisory opinion in any matter that, to its knowledge, is the
subject of or might affect a case or controversy pending in any
court or administrative [attorney disciplinary] proceeding.
E. Public Hearing. The POL Board may conduct a public hearing
at a date and time and in a manner set by the POL Board, designed
to make it accessible to interested parties as determined by the
Board, on any request for an advisory opinion or a POL Board
initiated advisory opinion.
F. POL Board Action. Upon receipt of a proper request for an
advisory opinion, the POL Board may issue an advisory opinion or
proposed advisory opinion, or may decline to issue an advisory
opinion. If the POL Board issues an advisory opinion, it shall
be in writing and shall be transmitted to the person making the
request, or in the case of a POL Board initiated advisory
opinion, it may be transmitted to any person(s) determined by the
POL Board for whose benefit or detriment the advisory opinion was issued.
G. Publication of Advisory Opinions. The POL Board may arrange
for the publication of advisory opinions in the Washington State
Bar News. Opinions so published shall not, insofar as
practicable, identify the party or parities making the inquiry,
the complainant or the respondent.
H. Petitions for Review. Petitions for review of any advisory
opinion issued by the POL Board shall conform with Regulation 7 below.
REGULATION 6. COMPLAINTS.
A. Filing Complaints. Complaints alleging the unauthorized or
unlicensed practice of law shall be submitted to the POL Board,
in writing, in a form and manner prescribed by the POL Board.
B. Investigation. The POL Board may, on its own initiative and
without any complaint being made to it, investigate any
condition, situation or activity involving the unauthorized or
unlicensed practice of law of which it becomes aware in the same
manner as if a complaint had been made under section A above.
C. Initial Review of Complaints. Upon receipt of a complaint,
the Board Administrator shall conduct an initial review to
determine whether it is within the jurisdiction of the POL Board
or may be subject to deferral. If not within the jurisdiction of
the POL Board or if it is subject to deferral, the Board
administrator shall advise the complainant that the matter will
not be opened as a complaint, and the reasons. The complainant
may submit additional information. All such items will be placed
on the next POL Board agenda for review and any action deemed
appropriate by the POL Board. If the complaint is deemed to be
within the jurisdiction of the POL Board and not subject to
deferral, the complaint will be opened for investigation.
D. Request for Response. If a complaint is opened for
investigation, a copy shall be send to the respondent with a
request to respond within 20 days, and with notice that if the
respondent does not respond, the complaint shall be considered
without a response.
E. Report and Written Agreement. The complainant and respondent
shall be interviewed and such other and further review or
investigation may be conducted as is deemed appropriate. A
written report and recommendation will be submitted to the Board,
by transmitting it to the Board Administrator and the Members.
All Members shall have one week (5 working days) to submit
comments respecting the report by transmitting them to the Board
Administrator and the Members. If the report recommends
dismissal of the complaint and there are no adverse comments from
the Members within the comment period, the report and
recommendation shall be deemed adopted by the POL Board and the
chairperson shall immediately notify the complainant and the
respondent, in writing, of the dismissal and the matter shall be
closed. If one or more Members disagree with the recommendation
for dismissal, the matter shall be placed on the agenda of the
next meeting of the POL Board for action by the POL Board. If
the report concludes that there has been an unauthorized or
unlicensed practice of law, the matter shall be placed on the
agenda of the next POL Board meeting for action.
F. POL Board Review. If upon POL Board review of a report and
recommendation, the POL Board concludes that there has been no
unauthorized or unlicensed practice of law, the complaint shall
be dismissed and the chairperson shall so notify the complainant
and the respondent, in writing, and shall close the file. If the
POL Board concludes that there has been unauthorized or
unlicensed practice of law, the POL Board shall proceed in the
following manner:
(1) The POL Board shall attempt through the Chairperson or
his or her designee to persuade the respondent to enter
into a written agreement to refrain from the
objectionable conduct in the future. Such written
agreement shall be prepared by the Chairperson or his
or her designee and may include a stipulation as to
penalties in the event of continued unauthorized or
unlicensed practice of law which is the subject matter
of the agreement or violation of other terms of the agreement.
(2) If the respondent will not enter into a written
agreement as set forth in (1) above, the POL Board may
attempt to arrive at any other satisfactory disposition
as determined by the POL Board. In attempting to
arrive at a satisfactory disposition, the POL Board
may, at a regular or special POL Board meeting, or by a
designated committee, conduct an informal conference
with the respondent, which conference may, in the
discretion of the chairperson or designated committee
chair, be recorded electronically or reported by a
certified court reporter. At such informal conference,
the respondent may be represented by counsel, but the
informal conference shall not be public, nor shall
rules of evidence apply. If the informal conference
was held by a designated committee, the chair shall
render a report, in writing, to the POL Board at the
next POL Board meeting for action. If the POL Board
determines that the respondent has engaged in the
unauthorized or unlicensed practice of law, the POL
Board shall endeavor to have the respondent enter into
a written agreement to refrain from the objectionable
conduct in the future, in the same manner as provided
in (1) above. If, however, the respondent declines to
enter into a written agreement, the POL Board may refer
the matter to the appropriate law enforcement or other
agency in accordance with GR 25(h).
G. Pending Controversy. Notwithstanding the foregoing, the POL
Board may defer an investigation in any matter that, to its
knowledge, is the subject of or might affect a case or
controversy pending in any court or administrative [attorney disciplinary] proceeding.
H. Notice of Board Action.
(1) Notice to Parties. The chairperson shall provide notice to
any complainant who has not been previously notified of dismissal
and each respondent, other than a respondent who has entered into
a written agreement, of POL Board action with respect to the
complaint or self-initiated investigation within ten days of POL
Board action. All such notices of POL Board action shall inform
the recipients of the right to petition for review by the Supreme
Court as prescribed in GR 25(g).
(2) Publication of Notice: The POL Board may, in its
discretion, publish notice of Board action on a complaint
alleging the unauthorized practice of law in the Washington State
Bar News, on the WSBA website, or elsewhere as it deems
appropriate. The Board Administrator has discretion in drafting
notices for publication, and they should include sufficient
information to adequately inform the public of the reasons for
the Board’s action and conclusions.
REGULATION 7. PETITIONS FOR REVIEW.
Petitions for review from any action of the POL Board to the
Supreme Court shall comply with GR 25(g).
REGULATION 8. RECOMMENDATIONS TO THE SUPREME COURT.
A. In General. On the request of the Supreme Court or any
person or organization, or on its own initiative, the POL Board
may recommend that non-lawyers be authorized to engage in certain
defined activities that otherwise constitute the practice of law
as defined in GR 24.
B. Public Hearing. The POL Board may, in its discretion,
conduct a public hearing upon such notice and at a date, time and
in a manner as determined by the POL Board on any self-initiated
action or request for a recommendation to the Supreme Court.
C. Recommendation. Any recommendation forwarded by the POL
Board to the Supreme Court that non-lawyers be authorized to
engage in certain legal or law-related activities that constitute
the practice of law as defined in GR 24 shall set forth the
determining factors required by GR 25(c)(4), and any additional
factors the POL Board deems relevant.
D. Transmittal of Recommendation to the Board of Governors.
Any recommendation from the POL Board pursuant to this Regulation
8 shall be submitted to the WSBA Board of Governors for
consideration and comment before transmission to the Supreme
Court. The recommendation of the POL Board with comments by the
WSBA Board, if any, shall be transmitted to the Supreme Court as
provided in GR 25(c)(4). The WSBA Board of Governors may affirm
the recommendation of the POL Board or recommend that it be
modified or rejected.
[Approved by the Supreme Court December 2, 2004; Adopted amended effective September 1, 2005.]
GR 26
MANDATORY CONTINUING JUDICIAL EDUCATION
Preamble. The protection of the rights of free citizens depends upon the
existence of an independent and competent judiciary. The challenge of
maintaining judicial competence requires ongoing education of judges in the
application of legal principles and the art of judging in order to meet the
needs of a changing society. This rule establishes the minimum requirements
for continuing judicial education of judicial officers.
(a) Minimum Requirement. Each judicial officer shall complete a
minimum of 45 credit hours of continuing judicial education approved by the
Board for Court Education (BCE) every three years, commending January 1 of the
calendar year following the adoption of this rule. If a judicial officer
completes more than 45 such credit hours in a three-year reporting period, up
to 15 hours of the excess credit may be carried forward and applied to the
judicial officer's education requirement for the following three-year reporting
period. At least six credit hours for each three-year reporting period shall
be earned by completing programs in judicial ethics approved by the BCE. The
fifteen credit hours that may be carried forward may include two credit hours
toward the judicial ethics requirement.
(b) Judicial College Attendance.
1) A judicial officer shall attend and complete the Washington Judicial
College program within twelve months of the initial appointment or
election to the judicial office.
2) A judicial officer who attended the Washington Judicial College
during his or her term of office in a court of limited jurisdiction shall
attend and complete the Washington Judicial College within twelve months
of any subsequent appointment or election to the Superior Court. A
judicial officer who attended the Washington Judicial College during his
or her term of office in the Superior Court shall attend and complete the
Washington Judicial College within twelve months of any subsequent
appointment or election as a judicial officer in a court of limited
jurisdiction. A judicial officer who attended the Washington Judicial
College during his or her term of office in a superior court or court of
limited jurisdiction and is subsequently appointed or elected to an
appellate court position is not required to attend the Washington Judicial College.
3) A judicial officer of a District Court, Municipal Court, Superior
Court, or an appellate court, who has been a judicial officer at the time
of the adoption of this rule for less than four years but has not attended
the Washington Judicial College, shall attend and complete the Washington
Judicial College program within twelve months of the adoption of this rule.
(c) Accreditation. BCE shall, subject to the approval of the Supreme
Court, establish and publish standards for accreditation of continuing judicial
education programs and may choose to award continuing judicial education
credits for self-study or teaching. Continuing judicial education credit shall
be given for programs BCE determines enhance the knowledge and skills that are
relevant to the judicial office.
(d) Compliance Report. Each judicial officer shall file a report with
the Administrative Office of the Courts (AOC) on or before January 31 each year
in such form as the Administrative Office of the Courts shall prescribe
concerning the judicial officer's progress toward the continuing judicial
education requirements of sections (a) and (b) of this rule during the previous
calendar year. If a judicial officer does not respond by January 31, their
credits will be confirmed by default. Judicial officers who do not have the
requisite number of hours at the end of their three-year reporting period will
have until March 1 to make up the credits for the previous three-year reporting
period. These credits will not count toward their current three-year reporting
period. AOC shall publish a report with the names of all judicial officers who
do not fulfill the requirements of sections (a) and (b) of this rule. The AOC
report shall be disseminated by means that may include, but are not limited to,
publishing on the Washington Courts Internet web site, publishing the
information as part of any voter's guide produced by or under the direction of
the Administrative Office of the Courts, and releasing the information in
electronic or printed form to media organizations throughout the Washington State.
(e) Delinquency. Failure to comply with the requirements of this rule
may be deemed a violation of the Code of Judicial Conduct that would subject a
judicial officer to sanction by the Commission on Judicial Conduct.
(f) Definition. The term "judicial officer" as used in this rule shall
not include judges pro tempore but shall otherwise include all full or part
time appointed or elected justices, judges, court commissioners, and magistrates.
[Adopted effective July 1, 2002; December 31, 2003; amended November 7, 2002; December 31, 2007.]
26_STDS WASHINGTON STATE JUDICIAL EDUCATION MANDATORY CONTINUING JUDICIAL EDUCATION STANDARDS (IN WORD FORMAT) The contents of this item are only available on-line.
GR 27
FAMILY LAW COURTHOUSE FACILITATORS
(a) Generally. RCW 26.12.240 provides a county may create a
courthouse facilitator program to provide basic services to pro
se litigants in family law cases. This Rule applies only to
courthouse facilitator programs created pursuant to RCW
26.12.240.
(b) The Washington State Supreme Court shall create a Family
Courthouse Facilitator Advisory Committee supported by the
Administrative Office of the Courts to establish minimum
qualifications and administer a curriculum of initial and ongoing
training requirements for family law courthouse facilitators.
The Administrative Office of the Courts shall assist counties in
administering family law courthouse facilitator programs.
(c) Definitions. For the purpose of this rule the following
definitions apply:
(1) A Family Law Courthouse Facilitator is an individual or
individuals who has or have met or exceeded the minimum
qualifications and completed the curriculum developed by the
Administrative Office of the Courts and who is or are
providing basic services in family law cases in a Superior
Court.
(2) Family Law Cases include, but not limited to, dissolution
of marriage, modification of dissolution matters such as child
support, parenting plans, non-parental custody or visitation,
and parentage by unmarried persons to establish paternity,
child support, child custody and visitation.
(3) “Basic Service” includes but is not limited to:
a) referral to legal and social service resources, including
lawyer referral and alternate dispute referral programs and
resources on obtaining family law forms and instructions;
b) assistance in calculating child support using standardized
computer based program based on financial information provided by
the pro se litigant;
c) processing interpreter requests for facilitator assistance
and court hearings ;
d) assistance in selection as well as distribution of forms and
standardized instructions that have been approved by the court,
clerk’s office, or the Administrative Office of the Courts;
e) assistance in completing forms that have been approved by
the court, clerk’s office, or the Administrative Office of the
Courts;
f) explanation of legal terms;
g) information on basic court procedures and logistics
including requirements for service, filing, scheduling hearings
and complying with local procedures;
h) review of completed forms to determine whether forms have
been completely filled out but not as to substantive content with
respect to the parties’ legal rights and obligations;
i) previewing pro se documents prior to hearings for matters
such as dissolution of marriage and show cause and temporary
relief motions calendars under the direction of the Clerk or
Court to determine whether procedural requirements have been
complied with
j) attendance at pro se hearings to assist the Court
with pro se matters.
k) assistance with preparation of court orders under
the direction of the Court.
l) preparation of pro se instruction packets under the
direction of the Administrative Office of the Courts.
(d) Family Law Courthouse Facilitators shall, whenever reasonably
practical, obtain a written and signed disclaimer of attorney-
client relationship, attorney-client confidentiality and
representation from each person utilizing the services of the
Family Law Courthouse Facilitator. The prescribed disclaimer
shall be in the format developed by the Administrative Office of
the Courts.
(e) No attorney-client relationship or privilege is created, by
implication or by inference, between a Family Law Courthouse
Facilitator providing basic services under this rule and the
users of Family Law Courthouse Facilitator Program services.
(f) Family law courthouse facilitators providing basic services
under this rule are not engaged in the unauthorized practice of
law. Upon a courthouse facilitator’s voluntary or involuntary
termination from a courthouse facilitator program, that person is
no longer a courthouse facilitator providing services pursuant to
RCW 26.12.240 or this Rule.
[Adopted effective September 1, 2002.]
GR 28
Jury Service Postponement, Excusal, and Disqualification
[a] Scope of rule. This rule addresses the procedures
for postponing and excusing jury service under RCW
2.36.100 and 2.36.110 and for disqualifying potential
jurors under RCW 2.36.070 (basic statutory
qualifications).
[b] Delegation of authority to postpone, excuse, or
disqualify.
(1) The judges of a court may delegate to court staff
and county clerks their authority to disqualify,
postpone, or excuse a potential juror from jury
service.
(2) Any delegation of authority under this rule must
be written and must specify the criteria for making
these decisions.
(3) Judges may not delegate decision-making authority
over any grounds for peremptory challenges or
challenges for cause that fall outside the scope of
this rule.
[c] Grounds for postponement of service.
(1) Postponement of service for personal or work-related
inconvenience should be liberally granted when
requested in a timely manner.
(2) Postponement shall be to a specified period of
time within the twelve-month period pursuant to RCW
2.36.100(2).
[d] Grounds for excusal from service.
(1) Excusal from jury service shall be limited and shall
be allowed only when justified by the criteria
established in RCW 2.36.100(1) and 2.36.110.
[e] Grounds for disqualification of potential jurors.
[Reserved. See RCW 2.36.070.]
[Adopted effective October 1, 2002]
General Rule 29
PRESIDING JUDGE IN SUPERIOR COURT DISTRICT AND
LIMITED JURISDICTION COURT DISTRICT
(a) Election, Term, Vacancies, Removal and Selection Criteria - Multiple
Judge Courts.
(1) Election. Each superior court district and each limited jurisdiction
court district (including municipalities operating municipal courts) having
more than one judge shall establish a procedure, by local court rule, for
election, by the judges of the district, of a Presiding Judge, who shall
supervise the judicial business of the district. In the same manner, the judges
shall elect an Assistant Presiding Judge of the district who shall serve as
Acting Presiding Judge during the absence or upon the request of the Presiding
Judge and who shall perform such further duties as the Presiding Judge, the
Executive Committee, if any, or the majority of the judges shall direct. If
the judges of a district fail or refuse to elect a Presiding Judge, the Supreme
Court shall appoint the Presiding Judge and Assistant Presiding Judge.
(2) Term. The Presiding Judge shall be elected for a term of not less than
two years, subject to reelection. The term of the Presiding Judge shall
commence on January 1 of the year in which the Presiding Judge's term begins.
(3) Vacancies. Interim vacancies of the office of Presiding Judge or
Acting Presiding Judge shall be filled as provided in the local court rule in (a)(1).
(4) Removal. The Presiding Judge may be removed by a majority vote of the
judges of the district unless otherwise provided by local court rule.
(5) Selection Criteria. Selection of a Presiding Judge should be based on
the judge's 1) management and administrative ability, 2) interest in serving in
the position, 3) experience and familiarity with a variety of trial court
assignments, and 4) ability to motivate and educate other judicial officers and
court personnel. A Presiding Judge must have at least four years of experience
as a judge, unless this requirement is waived by a majority vote of the judges
of the court.
Commentary
It is the view of the committee that the selection and duties of a presiding
judge should be enumerated in a court rule rather than in a statute. It is
also our view that one rule should apply to all levels of court and include
single judge courts. Therefore, the rule should be a GR (General Rule). The
proposed rule addresses the process of selection/removal of a presiding judge
and an executive committee. It was the intent of the committee to provide some
flexibility to local courts wherein they could establish, by local rule, a
removal process. Additionally, by delineating the selection criteria for the
presiding judge, the committee intends that a rotational system of selecting a
presiding judge is not advisable.
(b) Selection and Term - Single Judge Courts. In court districts or
municipalities having only one judge, that judge shall serve as the Presiding
Judge for the judge's term of office.
(c) Notification of Chief Justice. The Presiding Judge so elected shall
send notice of the election of the Presiding Judge and Assistant Presiding
Judge to the Chief Justice of the Supreme Court within 30 days of election.
(d) Caseload Adjustment. To the extent possible, the judicial caseload
should be adjusted to provide the Presiding Judge with sufficient time and
resources to devote to the management and administrative duties of the office.
Commentary
Whether caseload adjustments need to be made depends on the size and workload
of the court. A recognition of the additional duties of the Presiding Judge by
some workload adjustment should be made by larger courts. For example, the
Presiding Judge could be assigned a smaller share of civil cases or a block of
time every week could be set aside with no cases scheduled so the Presiding
Judge could attend to administrative matters.
(e) General Responsibilities. The Presiding Judge is responsible for
leading the management and administration of the court's business, recommending
policies and procedures that improve the court's effectiveness, and allocating
resources in a way that maximizes the court's ability to resolve disputes
fairly and expeditiously.
(f) Duties and Authority. The judicial and administrative duties set
forth in this rule cannot be delegated to persons in either the legislative or
executive branches of government. A Presiding Judge may delegate the
performance of ministerial duties to court employees; however, it is still the
Presiding Judge's responsibility to ensure they are performed in accordance
with this rule. In addition to exercising general administrative supervision
over the court, except those duties assigned to clerks of the superior court
pursuant to law, the Presiding Judge shall:
(1) Supervise the business of the judicial district and judicial officers
in such manner as to ensure the expeditious and efficient processing of all
cases and equitable distribution of the workload among judicial officers;
(2) Assign judicial officers to hear cases pursuant to statute or rule.
The court may establish general policies governing the assignment of judges;
(3) Coordinate judicial officers' vacations, attendance at education
programs, and similar matters;
(4) Develop and coordinate statistical and management information;
(5) Supervise the daily operation of the court including:
(a) All personnel assigned to perform court functions; and
(b) All personnel employed under the judicial branch of government, including
but not limited to working conditions, hiring, discipline, and termination
decisions except wages, or benefits directly related to wages; and
(c) The court administrator, or equivalent employee, who shall report
directly to the Presiding Judge.
Commentary
The trial courts must maintain control of the working conditions for their
employees. For some courts this includes control over some wage-related
benefits such as vacation time. While the executive branch maintains control
of wage issues, the courts must assert their control in all other areas of
employee relations.
With respect to the function of the court clerk, generally the courts of
limited jurisdiction have direct responsibility for the administration of their
clerk's office as well as the supervision of the court clerks who work in the
courtroom. In the superior courts, the clerk's office may be under the
direction of a separate elected official or someone appointed by the local
judges or local legislative or executive authority. In those cases where the
superior court is not responsible for the management of the clerk's office, the
presiding judge should communicate to the county clerk any concerns regarding
the performance of statutory court duties by county clerk personnel.
A model job description, including qualification and experience criteria, for
the court administrator position shall be established by the Board for Judicial
Administration. A model job description that generally describes the
knowledge, skills, and abilities of a court administrator would provide
guidance to Presiding Judges in modifying current job duties/responsibilities
or for courts initially hiring a court administrator or replacing a court administrator.
(6) Supervise the court's accounts and auditing the procurement and
disbursement of appropriations and preparation of the judicial district's
annual budget request;
(7) Appoint standing and special committees of judicial officers
necessary for the proper performance of the duties of the judicial district;
(8) Promulgate local rules as a majority of the judges may approve or as
the Supreme Court shall direct;
(9) Supervise the preparation and filing of reports required by statute
and court rule;
(10) Act as the official spokesperson for the court in all matters with
the executive or legislative branches of state and local government and the
community unless the Presiding Judge shall designate another judge to serve in
this capacity;
Commentary
This provision recognizes the Presiding Judge as the official spokesperson for
the court. It is not the intent of this provision to preclude other judges
from speaking to community groups or executive or legislative branches of state
or local government.
(11) Preside at meetings of the judicial officers of the district;
(12) Determine the qualifications of and establish a training program for
pro tem judges and pro tem court commissioners; and
(13) Perform other duties as may be assigned by statute or court rule.
Commentary
The proposed rule also addresses the duties and general responsibilities of the
presiding judge. The language in subsection (d), (e), (f) and (g) was intended
to be broad in order that the presiding judge may carry out his/her
responsibilities. There has been some comment that individual courts should
have the ability to change the "duties and general responsibilities"
subsections by local rule. While our committee has not had an opportunity to
discuss this fully, this approach has a number of difficulties:
. It would create many "Presiding Judge Rules" all of which are different.
. It could subject some municipal and district court judges to pressure from
their executive and/or legislative authority to relinquish authority over areas
such as budget and personnel.
. It would impede the ability of the BJA through AOC to offer consistent
training to incoming presiding judges.
The Unified Family Court subgroup of the Domestic Relations Committee suggested
the presiding judge is given specific authority to appoint judges to the family
court for long periods of time. Again the committee has not addressed the
proposal; however, subsections (e) and (f) do give the presiding judge broad
powers to manage the judicial resources of the court, including the assignment
of judges to various departments.
(g) Executive Committee. The judges of a court may elect an executive
committee consisting of other judicial officers in the court to advise the
Presiding Judge. By local rule, the judges may provide that any or all of the
responsibilities of the Presiding Judge be shared with the Executive Committee
and may establish additional functions and responsibilities of the Executive Committee.
Commentary
Subsection (g) provides an option for an executive committee if the presiding
judge and/or other members of the bench want an executive committee.
(h) Oversight of judicial officers. It shall be the duty of the Presiding
Judge to supervise judicial officers to the extent necessary to ensure the
timely and efficient processing of cases. The Presiding Judge shall have the
authority to address a judicial officer's failure to perform judicial duties
and to propose remedial action. If remedial action is not successful, the
Presiding Judge shall notify the Commission on Judicial Conduct of a judge's
substantial failure to perform judicial duties, which includes habitual neglect
of duty or persistent refusal to carry out assignments or directives made by
the Presiding Judge, as authorized by this rule.
(i) Multiple Court Districts. In counties that have multiple court
districts, the judges may, by majority vote of each court, elect to conduct the
judicial business collectively under the provisions of this rule.
(j) Multiple Court Level Agreement. The judges of the superior, district,
and municipal courts or any combination thereof in a superior court judicial
district may, by majority vote of each court, elect to conduct the judicial
business collectively under the provisions of this rule.
(k) Employment Contracts. A part-time judicial officer may contract with a
municipal or county authority for salary and benefits. The employment contract
shall not contain provisions which conflict with this rule, the Code of
Judicial Conduct or statutory judicial authority, or which would create an
impropriety or the appearance of impropriety concerning the judge's activities.
The employment contract should acknowledge the court is a part of an
independent branch of government and that the judicial officer or court
employees are bound to act in accordance with the provisions of the Code of
Judicial Conduct and Washington State Court rules.
[Adopted effective April 30, 2002; amended effective May 5, 2009.]
GR 30
ELECTRONIC FILING
(a) Definitions
(1) "Digital signature" is defined in RCW 19.34.020.
(2) "Electronic Filing" is the electronic transmission of information to a
court or clerk for case processing.
(3) "Electronic Document" is an electronic version of information
traditionally filed in paper form, except for documents filed by facsimile
which are addressed in GR 17. An electronic document has the same legal effect
as a paper document.
(4) "Electronic Filing Technical Standards" are those standards, not
inconsistent with this rule, adopted by the Judicial Information System
committee to implement electronic filing.
(5) "Filer" is the person whose user ID and password are used to file an
electronic document.
Comment
The form of "digital signature" that is acceptable is not limited to
the procedure defined by chapter 19.34 RCW, but may include
other equivalently reliable forms of authentication as adopted by
local court rule or general.
(b) Electronic filing authorization, exception, service, and technology equipment.
(1) The clerk may accept for filing an electronic document that complies with
the Court Rules and the Electronic Filing Technical Standards.
(2) A document that is required by law to be filed in non-electronic media
may not be electronically filed.
Comment
Certain documents are required by law to be filed in non-electronic media. Examples
are original wills, certified records of proceedings for purposes of appeal, negotiable
instruments, and documents of foreign governments under official seal.
(3) Electronic Transmission from the Court. The clerk may electronically
transmit notices, orders, or other documents to a party who has filed
electronically, or has agreed to accept electronic documents from the court,
and has provided the clerk the address of the party's electronic mailbox. It
is the responsibility of the filing or agreeing party to maintain an electronic
mailbox sufficient to receive electronic transmissions of notices, orders, and other documents.
(4) Electronic Service by Parties. Parties may electronically serve documents
on other parties of record only by agreement.
(5) A court may adopt a local rule that mandates electronic filing by
attorneys provided that the attorneys are not additionally required to file
paper copies except for those documents set forth in (b)(2). The local rule
shall not be inconsistent with this Rule and the Electronic Filing Technical
Standards, and the local rule shall permit paper filing upon a showing of good
cause. Electronic filing should not serve as a barrier to access.
Comment
When adopting electronic filing requirements, courts should refrain from requiring
counsel to provide duplicate paper pleadings as "working copies" for judicial officers.
(c) Time of Filing, Confirmation, and Rejection.
(1) An electronic document is filed when it is received by the clerk's
designated computer during the clerk's business hours; otherwise the document
is considered filed at the beginning of the next business day.
(2) The clerk shall issue confirmation to the filing party that an electronic
document has been received.
(3) The clerk may reject a document that fails to comply with applicable electronic
filing requirements. The clerk must notify the filing party of the rejection and
the reason therefor.
(d) Authentication of Electronic Documents.
(1) Procedures
(A) A person filing an electronic document must have received a user ID and
password from a government agency or a person delegated by such agency in order
to use the applicable electronic filing service.
Comment
The committee encourages local clerks and courts to develop a protocol for uniform
statewide single user ID's and passwords.
(B) All electronic documents must be filed by using the user ID and password
of the filer.
(C) A filer is responsible for all documents filed with his or her user ID
and password. No one shall use the filer's user ID and password without the
authorization of the filer.
(2) Signatures
(A) Attorney Signatures - An electronic document which requires an attorney's
signature may be signed with a digital signature or signed in the following manner:
s/ John Attorney
State Bar Number 12345
ABC Law Firm
123 South Fifth Avenue
Seattle, WA 98104
Telephone: (206) 123-4567
Fax: (206) 123-4567
E-mail: John.Attorney@lawfirm.com
(B) Non-attorney signatures - An electronic document which requires a non-
attorney's signature and is not signed under penalty of perjury may be signed
with a digital signature or signed in the following manner:
s/ John Citizen
123 South Fifth Avenue
Seattle, WA 98104
Telephone: (206) 123-4567
Fax: (206) 123-4567
E-mail: John.Citizen@email.com
(C) Non-attorney signatures on documents signed under penalty of perjury -
Except as set forth in (d)(2)(D) of this rule, if the original document
requires the signature of a non-attorney signed under penalty of perjury, the
filer must either:
(i) Scan and electronically file the entire document, including the signature
page with the signature, and maintain the original signed paper document for
the duration of the case, including any period of appeal, plus sixty (60) days
thereafter; or
(ii) Ensure the electronic document has the digital signature of the signer.
(D) Law enforcement officer signatures on documents signed under penalty of perjury.
(i) A citation or notice of infraction initiated by an arresting or citing
officer as defined in IRLJ 1.2(j) and in accordance with CrRLJ 2.1 or IRLJ 2.1
and 2.2 is presumed to have been signed when the arresting or citing officer
uses his or her user id and password to electronically file the citation or
notice of infraction.
(ii) Any document initiated by a law enforcement officer is presumed to have
been signed when the officer uses his or her user ID and password to
electronically submit the document to a court or prosecutor through the
Statewide Electronic Collision & Traffic Online Records application, the
Justice Information Network Data Exchange, or a local secured system that the
presiding judge designates by local rule. Unless otherwise specified, the
signature shall be presumed to have been made under penalty of perjury under
the laws of the State of Washington and on the date and at the place set forth
in the citation.
(E) Multiple signatures - If the original document requires multiple
signatures, the filer shall scan and electronically file the entire document,
including the signature page with the signatures, unless:
(i) The electronic document contains the digital signatures of all signers; or
(ii) For a document that is not signed under penalty of perjury, the signator
has the express authority to sign for an attorney or party and represents having
that authority in the document.
If any of the non-digital signatures are of non-attorneys, the filer shall maintain
the original signed paper document for the duration of the case, including any
period of appeal, plus sixty (60) days thereafter.
(F) Court Facilitated Electronically Captured Signatures - An electronic document
that requires a signature may be signed using electronic signature pad equipment
that has been authorized and facilitated by the court. This document may be
electronically filed as long as the electronic document contains the electronic
captured signature.
(3) An electronic document filed in accordance with this rule shall bind the
signer and function as the signer's signature for any purpose, including CR 11.
An electronic document shall be deemed the equivalent of an original signed
document if the filer has complied with this rule. All electronic documents
signed under penalty of perjury must conform to the oath language requirements
set forth in RCW 9A.72.085 and GR 13.
(e) Filing fees, electronic filing fees.
(1) The clerk is not required to accept electronic documents that require a
fee. If the clerk does accept electronic documents that require a fee, the
local courts must develop procedures for fee collection that comply with the
payment and reconciliation standards established by the Administrative Office
of the Courts and the Washington State Auditor.
(2) Anyone entitled to waiver of non-electronic filing fees will not be
charged electronic filing fees. The court or clerk shall establish an
application and waiver process consistent with the application and waiver
process used with respect to non-electronic filing and filing fees.
[Adopted effective September 1, 2003; December 4, 2007; September 1, 2011.]
GR 31
ACCESS TO COURT RECORDS
(a) Policy and Purpose. It is the policy of the courts to
facilitate access to court records as provided by Article I,
Section 10 of the Washington State Constitution. Access to
court records is not absolute and shall be consistent with
reasonable expectations of personal privacy as provided by
article 1, Section 7 of the Washington State Constitution
and shall not unduly burden the business of the courts.
(b) Scope. This rule applies to all court records, regardless
of the physical form of the court record, the method of
recording the court record or the method of storage of the
court record. Administrative records are not within the
scope of this rule. Court records are further governed by GR 22.
(c) Definitions.
(1) "Access" means the ability to view or obtain a copy of
a court record.
(2) "Administrative record" means any record pertaining to
the management, supervision or administration of the
judicial branch, including any court, board, or
committee appointed by or under the direction of any
court or other entity within the judicial branch, or
the office of any county clerk.
(3) "Bulk distribution" means distribution of all, or a
significant subset, of the information in court
records, as is and without modification.
(4) "Court record" includes, but is not limited to: (i)
Any document, information, exhibit, or other thing that
is maintained by a court in connection with a judicial
proceeding, and (ii) Any index, calendar, docket,
register of actions, official record of the
proceedings, order, decree, judgment, minute, and any
information in a case management system created or
prepared by the court that is related to a judicial
proceeding. Court record does not include data
maintained by or for a judge pertaining to a particular
case or party, such as personal notes and
communications, memoranda, drafts, or other working
papers; or information gathered, maintained, or stored
by a government agency or other entity to which the
court has access but which is not entered into the record.
(5) "Criminal justice agencies" are government agencies
that perform criminal justice functions pursuant to
statute or executive order and that allocate a
substantial part of their annual budget to those functions.
(6) "Dissemination contract" means an agreement between a
court record provider and any person or entity, except
a Washington State court (Supreme Court, court of
appeals, superior court, district court or municipal
court), that is provided court records. The essential
elements of a dissemination contract shall be
promulgated by the JIS Committee.
(7) "Judicial Information System (JIS) Committee" is the
committee with oversight of the statewide judicial
information system. The judicial information system is
the automated, centralized, statewide information
system that serves the state courts.
(8) "Judge" means a judicial officer as defined in the Code
of Judicial Conduct (CJC) Application of the Code of
Judicial Conduct Section (A).
(9) "Public" includes an individual, partnership, joint
venture, public or private corporation, association,
federal, state, or local governmental entity or agency,
however constituted, or any other organization or group
of persons, however organized.
(10) "Public purpose agency" means governmental agencies
included in the definition of "agency" in RCW 42.17.020
and other non-profit organizations whose principal
function is to provide services to the public.
(d) Access.
(1) The public shall have access to all court records
except as restricted by federal law, state law, court
rule, court order, or case law.
(2) Each court by action of a majority of the judges may
from time to time make and amend local rules governing
access to court records not inconsistent with this rule.
(3) A fee may not be charged to view court records at the courthouse.
(e) Personal Identifiers Omitted or Redacted from Court Records
(1) Except as otherwise provided in GR 22, parties shall
not include, and if present shall redact, the following
personal identifiers from all documents filed with the
court, whether filed electronically or in paper, unless
necessary or otherwise ordered by the Court.
(A) Social Security Numbers. If the Social Security
Number of an individual must be included in a
document, only the last four digits of that number
shall be used.
(B) Financial Account Numbers. If financial account
numbers are relevant, only the last four digits
shall be recited in the document.
(C) Driver's License Numbers.
(2) The responsibility for redacting these personal
identifiers rests solely with counsel and the parties.
The Court or the Clerk will not review each pleading
for compliance with this rule. If a pleading is filed
without redaction, the opposing party or identified
person may move the Court to order redaction. The
court may award the prevailing party reasonable
expenses, including attorney fees and court costs,
incurred in making or opposing the motion.
COMMENT
This rule does not require any party,
attorney, clerk, or judicial officer
to redact information from a court
record that was filed prior to the
adoption of this rule.
(f) Distribution of Court Records Not Publicly Accessible
(1) A public purpose agency may request court
records not publicly accessible for scholarly,
governmental, or research purposes where the
identification of specific individuals is ancillary to
the purpose of the inquiry. In order to grant such
requests, the court or the Administrator for the Courts must:
(A) Consider: (i) the extent to which access will
result in efficiencies in the operation of the
judiciary; (ii) the extent to which access will
fulfill a legislative mandate; (iii) the extent to
which access will result in efficiencies in other
parts of the justice system; and (iv) the risks
created by permitting the access.
(B) Determine, in its discretion, that filling the
request will not violate this rule.
(C) Determine the minimum access to restricted court
records necessary for the purpose is provided to
the requestor.
(D) Assure that prior to the release of court records
under section (f) (1), the requestor has executed
a dissemination contract that includes terms and
conditions which: (i) require the requester to
specify provisions for the secure protection of
any data that is confidential; (ii) prohibit the
disclosure of data in any form which identifies an
individual; (iii) prohibit the copying,
duplication, or dissemination of information or
data provided other than for the stated purpose;
and (iv) maintain a log of any distribution of
court records which will be open and available for
audit by the court or the Administrator of the
Courts. Any audit should verify that the court
records are being appropriately used and in a
manner consistent with this rule.
(2) Courts, court employees, clerks and clerk employees,
and the Commission on Judicial Conduct may access and
use court records only for the purpose of conducting
official court business.
(3) Criminal justice agencies may request court records not
publicly accessible.
(A) The provider of court records shall approve the
access level and permitted use for classes of
criminal justice agencies including, but not
limited to, law enforcement, prosecutors, and
corrections. An agency that is not included in a
class may request access.
(B) Agencies requesting access under this section of
the rule shall identify the court records
requested and the proposed use for the court records.
(C) Access by criminal justice agencies shall be
governed by a dissemination contract. The
contract shall: (i) specify the data to which
access is granted; (ii) specify the uses which the
agency will make of the data; and (iii) include
the agency's agreement that its employees will
access the data only for the uses specified.
(g) Bulk Distribution of Court Records
(1) A dissemination contract and disclaimer approved by the JIS
Committee for JIS records or a dissemination contract and
disclaimer approved by the court clerk for local records must
accompany all bulk distribution of court records.
(2) A request for bulk distribution of court records may be
denied if providing the information will create an undue burden
on court or court clerk operations because of the amount of
equipment, materials, staff time, computer time or other
resources required to satisfy the request.
(3) The use of court records, distributed in bulk form, for the
purpose of commercial solicitation of individuals named in the
court records is prohibited.
(h) Appeals. Appeals of denials of access to JIS records
maintained at state level shall be governed by the rules and
policies established by the JIS Committee.
(i) Notice. The Administrator for the Courts shall develop a
method to notify the public of access to court records and
the restrictions on access.
(j) Access to Juror Information. Individual juror information,
other than name, is presumed to be private. After the
conclusion of a jury trial, the attorney for a party, or
party pro se, or member of the public, may petition the
trial court for access to individual juror information under
the control of court. Upon a showing of good cause, the
court may permit the petitioner to have access to relevant
information. The court may require that juror information
not be disclosed to other persons.
(k) Access to Master Jury Source List. Master jury source list
information, other than name and address, is presumed to be
private. Upon a showing of good cause, the court may permit
a petitioner to have access to relevant information from the
list. The court may require that the information not be
disclosed to other persons.
[Adopted effective October 26, 2004; amended effective January 3, 2006.]
General Rule 32
Court Performance Audits
Pursuant to the provision of RCW Chapter 2.56 and
to ensure that minimum service levels for the
administration of justice are in place, the
Administrative Office of the Courts (AOC) is
directed to conduct performance audits of courts
under the authority of the Supreme Court, in
conformity with criteria and methods developed by
the Board for Judicial Administration which have
been approved by the Supreme Court.
[Adopted Effective March 30, 2004]
GR 33
Requests for Accommodation by Persons with Disabilities
(a) Definitions. The following definitions shall apply under this rule:
(1) "Accommodation" means measures to make each court service, program, or
activity, when viewed in its entirety, readily accessible to and usable by a
person with a disability, and may include but is not limited to:
(A) making reasonable modifications in policies, practices, and procedures;
(B) furnishing, at no charge, auxiliary aids and services, including but
not limited to equipment, devices, materials in alternative formats,
qualified interpreters, or readers; and
(C) as to otherwise unrepresented parties to the proceedings,
representation by counsel, as appropriate or necessary to making each
service, program, or activity, when viewed in its entirety, readily
accessible to and usable by a person with a disability.
(2) "Person with a disability" means a person with a sensory, mental or
physical disability as defined by the Americans with Disabilities Act of 1990
(42 U.S.C. §§12101-12213), the Washington Law Against Discrimination (RCW
49.60 et seq.), or other similar local, state, or federal laws.
(3) "Proceedings Applicant" means any lawyer, party, witness, juror, or any
other individual who is participating in any proceeding before any court.
(4) "Public Applicant" means any other person seeking accommodation.
(b) Process for Requesting Accommodation.
(1) Persons seeking accommodation may proceed under this rule. Local
procedures not inconsistent with this rule may be adopted by courts to
supplement the requirements of this rule. A disputed or denied request for
accommodation is automatically subject to review under the procedures set out
in subsections (d) and (e) of this rule.
(2) An application requesting accommodation may be presented ex parte in
writing, or orally and reduced to writing, on a form approved by the
Administrative Office of the Courts, to the presiding judge or officer of the
court or his or her designee.
(3) An application for accommodation shall include a description of the
accommodation sought, along with a statement of the disability necessitating
the accommodation. The court may require the applicant to provide additional
information about the qualifying disability to help assess the appropriate
accommodation. Medical and other health information shall be submitted under a
cover sheet created by the Administrative Office of the Courts for use by
applicants designated "SEALED MEDICAL AND HEALTH INFORMATION" and such
information shall be sealed automatically. The court may order that such
information be sealed if it has not previously automatically been sealed.
(4) An application for accommodation should be made as far in advance as practical.
(c) Consideration. A request for accommodation shall be considered and
acted upon as follows:
(1) In determining whether to grant an accommodation and what accommodation to
grant, the court shall:
(A) consider, but not be limited by, the provisions of the Americans with
Disabilities Act of 1990 (§ 42 U.S.C. 12101 et seq.), RCW 49.60 et seq., and
other similar local, state, and federal laws;
(B) give primary consideration to the accommodation requested by the applicant; and
(C) make its decision on an individual- and case-specific basis with due
regard to the nature of the applicant's disability and the feasibility of the
requested accommodation.
(2) If an application for accommodation by a proceedings applicant is submitted
five (5) or more court days prior to the scheduled date of the proceeding for
which the accommodation is sought, and if the applicant otherwise is entitled
under this rule to the accommodation requested, the accommodation shall be
provided unless:
(A) it is impossible for the court to provide the requested accommodation
on the date of the proceeding; and
(B) the proceeding cannot be continued without prejudice to a party to the proceeding.
(3) If an application for accommodation by a proceedings applicant is submitted
fewer than five (5) court days prior to the scheduled date of the proceeding
for which the accommodation is requested, and if the applicant otherwise is
entitled under this rule to the accommodation requested, the accommodation
shall be provided unless:
(A) it is impractical for the court to provide the requested accommodation on
the date of the proceeding; and
(B) the proceeding cannot be continued without prejudice to a party to the proceeding.
(4) If a requested accommodation is not provided by the court under subsection
(c)(2) or (c)(3) of this rule, the court must offer the applicant an
alternative accommodation.
(d) Denial: Proceedings Applicants. Except as otherwise set forth in
subsection (c)(2) or (c)(3) of this rule, an application for accommodation by a
proceedings applicant may be denied only if the court finds that:
(1) the applicant has failed to satisfy the substantive requirements of this rule;
(2) the requested accommodation would create an undue financial or administrative burden;
(3) the requested accommodation would fundamentally alter the nature of the
court service, program, or activity; or
(4) permitting the applicant to participate in the proceeding with the
requested accommodation would create a direct threat to the health or
safety or well being of the applicant or others.
(e) Decision: Proceedings Applicants. The court shall, in writing or on the
record, inform the applicant and the court personnel responsible for
implementing accommodations that the request for accommodation has been granted
or denied, in whole or in part, and the nature and scope of the accommodation
to be provided, if any. The decision shall be entered in the proceedings file,
if any, or in the court's administrative files. If the court denies a requested
accommodation pursuant to subsection (d) of this rule, the decision shall
specify the reasons for the denial. If a requested accommodation is not provided
by the court under subsection (c)(2) or (c)(3) of this rule, the court shall state:
(1) the facts and/or circumstances that make the accommodation impossible
under subsection (c)(2) or impractical under subsection (c)(3); and
(2) the reasons why the proceeding cannot be continued without prejudicing
a party to the proceeding.
(f) Decision: Public Applicants. A public applicant should be
accommodated consistent with the Americans with Disabilities Act of 1990 (42
USC §§12101-12213) and the Washington Law Against Discrimination (RCW 49.60 et
seq). The applicant shall, orally or in writing, be informed that the request
for accommodation has been granted or denied. If requested, a written
statement of reasons for denial shall be provided.
Comment
[1] Access to justice for all persons is a fundamental right. It is the policy
of the courts of this state to assure that persons with disabilities have equal
and meaningful access to the judicial system. Nothing in this rule shall be
construed to limit or invalidate the remedies, rights, and procedures accorded
to any person with a disability under local, state, or federal law.
[2] Supplemental informal procedures for handling accommodation requests may be
less onerous for both applicants and court administration. Courts are strongly
encouraged to adopt an informal grievance process for public applicants whose
requested accommodation is denied.
[Adopted effective September 1, 2007; amended effective December 28, 2010.]
GR 34
Waiver of Court and Clerk's Fees and Charges in
Civil Matters on the Basis of Indigency
(a) Any individual, on the basis of indigent status as defined herein, may
seek a waiver of filing fees or surcharges the payment of which is a condition
precedent to a litigant's ability to secure access to judicial relief from a
judicial officer in the applicable trial court.
(1) The application for such a waiver may be made ex parte in writing
or orally, accompanied by a mandatory pattern form created by the
Administrative Office of the Courts (AOC) whereby the applicant attests to
his or her financial status or, in the case of an individual represented by
a qualified legal services provider ("QLSP") or an attorney working in
conjunction with a QLSP, a declaration of counsel stating that the
individual was screened and found eligible by the QLSP.
(2) The court shall accept an application submitted in person, by
mail and where authorized by local court rule not inconsistent with GR 30,
electronic filing. The process for presentation of the application shall
conform to local court rules and clerk processes not inconsistent with the
rules of this court for presenting ex parte orders to the court directly or
via the clerk. All applications shall be presented to a judicial officer
for consideration in a timely manner and in conformity with the local
court's established procedures. There shall be no locally imposed fee for
making an application. The applicant or applicant's attorney filing by
mail, shall provide the court with a self-addressed stamped envelope for
timely return of a conformed copy of the order.
COMMENT
This rule establishes the process by which judicial officers may
waive civil filing fees and surcharges for which judicial officers
have authority to grant a waiver. This rule applies to mandatory
fees and surcharges that have been lawfully established, the payment
of which is a condition precedent to a litigant's ability to secure
access to judicial relief. These include but are not limited to
legislatively established filing fees and surcharges (e.g., RCW
36.18.020(5)); other initial filing charges required by statute
(e.g., family court facilitator surcharges established pursuant to
RCW 26.12.240; family court service charges established pursuant to
RCW 26.12.260; domestic violence prevention surcharges established
pursuant to RCW 36.18.016(2)(b)); and other lawfully established fees
and surcharges which must be paid as a condition of securing access
to judicial relief.
(3) An individual who is not represented by a qualified legal
services provider (as that term is defined below) or an attorney working in
conjunction with a qualified legal services provider shall be determined to
be indigent within the meaning of this rule if such person, on the basis of
the information presented, establishes that:
(A) he or she is currently receiving assistance under a needs-based,
means-tested assistance program such as the following:
(i) Federal Temporary Assistance for Needy Families (TANF);
(ii) State-provided general assistance for unemployable individuals (GA-U or GA-X);
(iii) Federal Supplemental Security Income (SSI);
(iv) Federal poverty-related veteran's benefits; or
(v) Food Stamp Program (FSP); or
(B) his or her household income is at or below 125 percent of the
federal poverty guideline; or
(C) his or her household income is above 125 percent of the federal
poverty guideline and the applicant has recurring basic living expenses (as
defined in RCW 10.101.010(4)(d)) that render him or her without the
financial ability to pay the filing fees and other fees or surcharges for
which a request for waiver is made; or
(D) other compelling circumstances exist that demonstrate an
applicant's inability to pay fees and/or surcharges.
(4) An individual represented by a QLSP, or an attorney working in
conjunction with a QLSP that has screened and found the individual eligible
for services, is presumptively deemed indigent when a declaration from
counsel verifies representation and states that the individual was screened
and found eligible for services.
(5) As used in this rule, "qualified legal services provider" means
those legal services providers that meet the definition of APR 8(e).
COMMENT
The adoption of this rule is rooted in the constitutional premise
that every level of court has the inherent authority to waive payment
of filing fees and surcharges on a case by case basis. Each court is
responsible for the proper and impartial administration of justice
which includes ensuring that meaningful access to judicial review is
available to the poor as well as to those who can afford to pay.
(b) Nothing in this rule shall prohibit or delay action on the
underlying petition upon the court's approval of a waiver and presentation of
an original petition may accompany the initial fee waiver.
[Adopted effective December 28, 2010.]
CODE OF JUDICIAL CONDUCT (CJC)
PREAMBLE
[1] An independent, fair and impartial judiciary is indispensable to our
system of justice. The United States legal system is based upon the
principle that an independent, impartial, and competent judiciary, composed
of men and women of integrity, will interpret and apply the law that
governs our society. Thus, the judiciary plays a central role in preserving
the principles of justice and the rule of law. Inherent in all the Rules
contained in this Code are the precepts that judges, individually and
collectively, must respect and honor the judicial office as a public trust
and strive to maintain and enhance confidence in the legal system.
[2] Judges should maintain the dignity of judicial office at all times, and
avoid both impropriety and the appearance of impropriety in their
professional and personal lives. They should aspire at all times to conduct
that ensures the greatest possible public confidence in their independence,
impartiality, integrity, and competence.
[3] The Washington State Code of Judicial Conduct establishes standards for
the ethical conduct of judges and judicial candidates. It is not intended
as an exhaustive guide. The Code is intended, however, to provide guidance
and assist judges in maintaining the highest standards of judicial and
personal conduct, and to provide a basis for regulating their conduct
through the Commission on Judicial Conduct.
[Adopted September 9, 2010; effective January 1, 2011]
CODE OF JUDICIAL CONDUCT (CJC)
SCOPE
[1] The Washington State Code of Judicial Conduct consists of four Canons,
numbered Rules under each Canon, and Comments that generally follow and
explain each Rule. Scope and Terminology sections provide additional
guidance in interpreting and applying the Code. An Application section
establishes when the various Rules apply to a judge or judicial candidate.
[2] The Canons state overarching principles of judicial ethics that all
judges must observe. They provide important guidance in interpreting the
Rules. A judge may be disciplined only for violating a Rule.
[3] The Comments that accompany the Rules serve two functions. First, they
provide guidance regarding the purpose, meaning, and proper application of
the Rules. They contain explanatory material and, in some instances,
provide examples of permitted or prohibited conduct. Comments neither add
to nor subtract from the binding obligations set forth in the Rules.
Therefore, when a Comment contains the term "must," it does not mean that
the Comment itself is binding or enforceable; it signifies that the Rule in
question, properly understood, is obligatory as to the conduct at issue.
[4] Second, the Comments identify aspirational goals for judges. To implement
fully the principles of this Code as articulated in the Canons, judges
should strive to exceed the standards of conduct established by the Rules,
holding themselves to the highest ethical standards and seeking to achieve
those aspirational goals, thereby enhancing the dignity of the judicial office.
[5] The Rules of the Washington State Code of Judicial Conduct are rules
of reason that should be applied consistent with constitutional
requirements, statutes, other court rules, and decisional law, and with due
regard for all relevant circumstances. The Rules should not be interpreted
to impinge upon the essential independence of judges in making judicial decisions.
[6] Although the black letter of the Rules is binding and enforceable, it is
not contemplated that every transgression will result in the imposition of
discipline. It is recognized, for example, that it would be unrealistic to
sanction judges for minor traffic or civil infractions. Whether discipline
should be imposed should be determined through a reasonable and reasoned
application of the Rules. The relevant factors for consideration should
include the seriousness of the transgression, the facts and circumstances
that existed at the time of the transgression, including the willfulness or
knowledge of the impropriety of the action, the extent of any pattern of
improper activity, whether there have been previous violations, and the
effect of the improper activity upon the judicial system or others.
[7] The Code is not designed or intended as a basis for civil or criminal
liability. Neither is it intended to be the basis for litigants to seek
collateral remedies against each other or to obtain tactical advantages in
proceedings before a court.
[Adopted September 9, 2010; effective January 1, 2011]
CODE OF JUDICIAL CONDUCT (CJC)
APPLICATION
The Application section establishes when the various Rules apply to a judge,
court commissioner, judge pro tempore or judicial candidate.
I. APPLICABILITY OF THIS CODE
(A) A judge, within the meaning of this Code, is anyone who is authorized to
perform judicial functions, including an officer such as a magistrate, court
commissioner, special master, referee, part-time judge or judge pro tempore.
(B) The provisions of the Code apply to all judges except as otherwise
noted for part-time judges and judges pro tempore.
(C) All judges who hold a position that is subject to election shall comply
with all provisions of Rules 4.1 (Political and Campaign Activities of
Judges and Judicial Candidates in General), 4.2 (Political and Campaign
Activities of Judicial Candidates in Public Elections), 4.3 (Activities
of Candidates for Appointive Judicial Office), 4.4 (Campaign Committees),
and 4.5 (Activities of Judges Who Become Candidates for Nonjudicial
Office). Rules 4.1 (Political and Campaign Activities of Judges and
Judicial Candidates in General), 4.2 (Political and Campaign Activities
of Judicial Candidates in Public Elections), 4.3 (Activities of
Candidates for Appointive Judicial Office) and 4.4 (Campaign Committees)
apply to judicial candidates.
(D) All judges shall comply with statutory requirements applicable to their
position with respect to reporting and disclosure of financial affairs.
COMMENT
[1] The Rules in this Code have been formulated to address the ethical
obligations of any person who serves a judicial function, and are premised
upon the supposition that a uniform system of ethical principles should
apply to all those authorized to perform judicial functions.
[2] This Code and its Rules do not apply to any person who serves as an
administrative law judge or in a judicial capacity within an administrative agency.
[3] The determination of whether an individual judge is exempt from specific
Rules depends upon the facts of the particular judicial service.
[4] The Legislature has authorized counties to establish and operate drug
courts and mental health courts. Judges presiding in these special courts
are subject to these Rules, including Rule 2.9 (A)(1) on ex parte
communications, and must continue to operate within the usual judicial role
as an independent decision maker on issues of fact and law. But the Rules
should be applied with the recognition that these courts may properly
operate with less formality of demeanor and procedure than is typical of
more traditional courts. Application of the rules should also be attentive
to the terms and waivers in any contract to which the individual whose
conduct is being monitored has agreed in exchange for being allowed to
participate in the special court program.
II. PART-TIME JUDGE
(A) A part-time judge is not required to comply:
(1) with Rule 2.10 (Judicial Statements on Pending and Impending
Cases), except while serving as a judge; or
(2) at any time with Rules 3.4 (Appointments to Governmental
Positions), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as
Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial,
Business, or Remunerative Activities), and 3.14 (Reimbursement of
Expenses and Waivers of Fees or Charges).
(B) A part-time judge shall not act as a lawyer in a proceeding in which the
judge has served as a judge or in any other proceeding related thereto.
(C) When a person who has been a part-time judge is no longer a part-time
judge, that person may act as a lawyer in a proceeding in which he or she
served as a judge or in any other proceeding related thereto only with the
express consent of all parties pursuant to the Rules of Professional Conduct.
COMMENT
[1] Part-time judges should be alert to the possibility of conflicts of
interest and should liberally disclose on the record to litigants appearing
before them the fact of any extrajudicial employment or other judicial
role, even if there is no apparent reason to withdraw.
[2] In view of Rule 2.1, which provides that the judicial duties of judges
should take precedence over all other activities, part-time judges should
not engage in outside employment which would interfere with their ability
to sit on cases that routinely come before them.
III. JUDGE PRO TEMPORE
A judge pro tempore is not required to comply:
(A) except while serving as a judge, with Rule 1.2 (Promoting Confidence
in the Judiciary), Rule 2.4 (External Influences on Judicial Conduct);
Rule 2.10(Judicial Statements on Pending and Impending Cases);
or Rule 3.1 (Extrajudicial Activities in General); or
(B) at any time with Rules 3.2 (Appearances before Governmental Bodies and
Consultation with Government Officials), 3.3 (Acting as a Character
Witness), or 3.4 (Appointments to Governmental Positions), or with Rules
3.6 (Affiliation with Discriminatory Organizations), 3.7 (Participation in
Educational, Religious, Charitable, Fraternal, or Civic Organizations and
Activities), 3.8 (Appointments to Fiduciary Positions), 3.9 (Service as
Arbitrator or Mediator), 3.10 (Practice of Law), 3.11 (Financial, Business,
or Remunerative Activities), or 3.12 (Compensation for Extrajudicial Activities).
(C) A judge pro tempore shall not act as a lawyer in a proceeding in which the
judge has served as a judge or in any other proceeding related thereto.
(D) When a person who has been a judge pro tempore is no longer a judge pro
tempore, that person may act as a lawyer in a proceeding in which he or she
served as a judge or in any other proceeding related thereto only with the
express consent of all parties pursuant to the Rules of Professional Conduct.
VI. TIME FOR COMPLIANCE
A person to whom this Code becomes applicable shall comply immediately with its
provisions, except that those judges to whom Rules 3.8 (Appointments to
Fiduciary Positions) and 3.11 (Financial, Business, or Remunerative Activities)
apply shall comply with those Rules as soon as reasonably possible, but in no
event later than one year after the Code becomes applicable to the judge.
COMMENT
[1] If serving as a fiduciary when selected as judge, a new judge may,
notwithstanding the prohibitions in Rule 3.8, continue to serve as fiduciary,
but only for that period of time necessary to avoid serious adverse
consequences to the beneficiaries of the fiduciary relationship and in no event
longer than one year. Similarly, if engaged at the time of judicial selection
in a business activity, a new judge may, notwithstanding the prohibitions in
Rule 3.11, continue in that activity for a reasonable period but in no event
longer than one year.
[Adopted September 9, 2010; effective January 1, 2011]
CODE OF JUDICIAL CONDUCT (CJC)
TERMINOLOGY
The first time any term listed below is used in a Rule in its defined sense, it
is followed by an asterisk (*).
"Aggregate," in relation to contributions for a candidate, means not only
contributions in cash or in-kind made directly to a candidate's campaign
committee, but also all contributions made indirectly with the understanding
that they will be used to support the election of a candidate or to oppose the
election of the candidate's opponent. See Rules 2.11 and 4.4.
"Appropriate authority" means the authority having responsibility for
initiation of disciplinary process in connection with the violation to be
reported. See Rules 2.14 and 2.15.
"Contribution" means both financial and in-kind contributions, such as goods,
professional or volunteer services, advertising, and other types of assistance,
which, if obtained by the recipient otherwise, would require a financial
expenditure. See Rules 2.11, 2.13, 3.7, 4.1, and 4.4.
"De minimis," in the context of interests pertaining to disqualification of a
judge, means an insignificant interest that could not raise a reasonable
question regarding the judge's impartiality. See Rule 2.11.
"Domestic partner" means a person with whom another person maintains a
household and an intimate relationship, other than a person to whom he or she
is legally married. See Rules 2.11, 2.13, 3.13, and 3.14.
"Economic interest" means ownership of more than a de minimis legal or equitable
interest. Except for situations in which the judge participates in the management
of such a legal or equitable interest, or the interest could be substantially
affected by the outcome of a proceeding before a judge, it does not include:
(1) an interest in the individual holdings within a mutual or common investment fund;
(2) an interest in securities held by an educational, religious, charitable,
fraternal, or civic organization in which the judge or the judge's spouse,
domestic partner, parent, or child serves as a director, an officer, an
advisor, or other participant;
(3) a deposit in a financial institution or deposits or proprietary interests
the judge may maintain as a member of a mutual savings association or credit
union, or similar proprietary interests; or
(4) an interest in the issuer of government securities held by the judge.
See Rules 1.3 and 2.11.
"Fiduciary" includes relationships such as executor, administrator, trustee, or
guardian. See Rules 2.11, 3.2, and 3.8.
"Financial Support" shall mean the total of contributions to the judge's
campaign and independent expenditures in support of the judge's campaign or
against the judge's opponent as defined by RCW 42.17.020. See Rule 2.11.
"Impartial," "impartiality," and "impartially" mean absence of bias or
prejudice in favor of, or against, particular parties or classes of parties, as
well as maintenance of an open mind in considering issues that may come before
a judge. See Canons 1, 2, and 4, and Rules 1.2, 2.2, 2.10, 2.11, 2.13, 3.1,
3.12, 3.13, 4.1, and 4.2.
"Impending matter" is a matter that is imminent or expected to occur in the
near future. See Rules 2.9, 2.10, 3.13, and 4.1.
"Impropriety" includes conduct that violates the law, court rules, or
provisions of this Code, and conduct that undermines a judge's independence,
integrity, or impartiality. See Canon 1 and Rule 1.2.
"Independence" means a judge's freedom from influence or controls other than
those established by law. See Canons 1 and 4, and Rules 1.2, 3.1, 3.12, 3.13, and 4.2.
"Integrity" means probity, fairness, honesty, uprightness, and soundness of
character. See Canon 1 and Rule 1.2.
"Invidious discrimination" is a classification which is arbitrary, irrational,
and not reasonably related to a legitimate purpose. Differing treatment of
individuals based upon race, sex, gender, religion, national origin, ethnicity,
sexual orientation, age, or other classification protected by law, are
situations where invidious discrimination may exist. See Rules 3.1 and 3.6.
"Judicial candidate" means any person, including a sitting judge, who is
seeking selection for or retention in judicial office by election or
appointment. A person becomes a candidate for judicial office as soon as he or
she makes a public announcement of candidacy, declares or files as a candidate
with the election or appointment authority, authorizes or, where permitted,
engages in solicitation or acceptance of contributions or support, or is
nominated for election or appointment to office. See Rules 2.11, 4.1, 4.2, and 4.4.
"Knowingly," "knowledge," "known," and "knows" mean actual knowledge of the
fact in question. A person's knowledge may be inferred from circumstances.
See Rules 2.11, 2.13, 2.15, 2.16, 3.6, and 4.1.
"Law" encompasses court rules as well as statutes, constitutional provisions,
and decisional law. See Rules 1.1, 2.1, 2.2, 2.6, 2.7, 2.9, 3.1, 3.4, 3.9,
3.12, 3.13, 3.14, 3.15, 4.1, 4.2, 4.4, and 4.5.
"Member of the candidate's family" means a spouse, domestic partner, child,
grandchild, parent, grandparent, or other relative or person with whom the
candidate maintains a close familial relationship.
"Member of the judge's family" means a spouse, domestic partner, child,
grandchild, parent, grandparent, or other relative or person with whom the
judge maintains a close familial relationship. See Rules 3.7, 3.8, 3.10, and 3.11.
"Member of a judge's family residing in the judge's household" means any
relative of a judge by blood or marriage, or a person treated by a judge as a
member of the judge's family, who resides in the judge's household. See Rules
2.11 and 3.13.
"Nonpublic information" means information that is not available to the public.
Nonpublic information may include, but is not limited to, information that is
sealed by statute or court order or impounded or communicated in camera, and
information offered in grand jury proceedings, presentencing reports,
dependency cases, or psychiatric reports. See Rule 3.5.
"Part-time judge" Part-time judges are judges who serve on a continuing or
periodic basis, but are permitted by law to devote time to some other
profession or occupation and whose compensation for that reason is less than a
full-time judge. A person who serves part-time as a judge on a regular or
periodic basis in excess of eleven cases or eleven dockets annually, counted
cumulatively without regard to each jurisdiction in which that person serves as
a judge, is a part-time judge.
"Pending matter" is a matter that has commenced. A matter continues to be
pending through any appellate process until final disposition. See Rules 2.9,
2.10, 3.13, and 4.1.
"Personally solicit" means a direct request made by a judge or a judicial
candidate for financial support or in-kind services, whether made by letter,
telephone, or any other means of communication. See Rule 4.1.
"Political organization" means a political party or other group sponsored by or
affiliated with a political party or candidate, the principal purpose of which
is to further the election or appointment of candidates for political office.
For purposes of this Code, the term does not include a judicial candidate's
campaign committee created as authorized by Rule 4.4. See Rules 4.1 and 4.2.
"Pro tempore judge" Without regard to statutory or other definitions of a pro
tempore judge, within the meaning of this Code a pro tempore judge is a person
who serves only once or at most sporadically under a separate appointment for a
case or docket. Pro tempore judges are excused from compliance with certain
provisions of this Code because of their infrequent service as judges. A
person who serves or expects to serve part-time as a judge on a regular or
periodic basis in fewer than twelve cases or twelve dockets annually, counted
cumulatively without regard to each jurisdiction in which that person serves as
a judge, is a pro tempore judge.
"Public election" includes primary and general elections, partisan elections,
nonpartisan elections, and retention elections. See Rules 4.2 and 4.4.
"Third degree of relationship" includes the following persons: great-
grandparent, grandparent, parent, uncle, aunt, brother, sister, child,
grandchild, great-grandchild, nephew, and niece. See Rule 2.11.
[Adopted September 9, 2010; effective January 1, 2011]
Washington State Code of Judicial Conduct
Table of Canons
CANON 1
A Judge Shall Uphold and Promote the Independence, Integrity, and
Impartiality of the Judiciary, and Shall Avoid Impropriety and the
Appearance of Impropriety.
RULE 1.1 Compliance with the Law
RULE 1.2 Promoting Confidence in the Judiciary
RULE 1.3 Avoiding Abuse of the Prestige of Judicial Office
CANON 2
A Judge Should Perform the Duties of Judicial Office Impartially,
Competently, and Diligently.
RULE 2.1 Giving Precedence to the Duties of Judicial Office
RULE 2.2 Impartiality and Fairness
RULE 2.3 Bias, Prejudice and Harassment
RULE 2.4 External Influences on Judicial Conduct
RULE 2.5 Competence, Diligence, and Cooperation
RULE 2.6 Ensuring the Right to Be Heard
RULE 2.7 Responsibility to Decide
RULE 2.8 Decorum, Demeanor, and Communication with Jurors
RULE 2.9 Ex Parte Communications
RULE 2.10 Judicial Statements on Pending and Impending Cases
RULE 2.11 Disqualification
RULE 2.12 Supervisory Duties
RULE 2.13 Administrative Appointments.
RULE 2.14 Disability and Impairment
RULE 2.15 Responding to Judicial and Lawyer Misconduct
RULE 2.16 Cooperation with Disciplinary Authorities
CANON 3
A Judge Shall Conduct the Judge's Personal and Extrajudicial Activities to
Minimize the Risk of Conflict with the Obligations of Judicial Office.
RULE 3.1 Extrajudicial Activities in General
RULE 3.2 Appearances before Governmental Bodies and Consultation with
Government Officials
RULE 3.3 Testifying as Character Witness
RULE 3.4 Appointments to Governmental Positions
RULE 3.5 Use of Nonpublic Information
RULE 3.6 Affiliation with Discriminatory Organizations
RULE 3.7 Participation in Educational, Religious, Charitable, Fraternal, or
Civic Organizations and Activities
RULE 3.8 Appointments to Fiduciary Positions
RULE 3.9 Service as Arbitrator or Mediator
RULE 3.10 Practice of Law
RULE 3.11 Financial, Business, or Remunerative Activities
RULE 3.12 Compensation for Extrajudicial Activities
RULE 3.13 Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or
Other Things of Value
RULE 3.14 Reimbursement of Expenses and Waivers of Fees or Charges
RULE 3.15 Reporting Requirements
CANON 4
A Judge or Candidate for Judicial Office Shall not Engage in Political or
Campaign Activity that is Inconsistent with the Independence, Integrity, or
Impartiality of the Judiciary.
RULE 4.1 Political and Campaign Activities of Judges and Judicial Candidates in General
RULE 4.2 Political and Campaign Activities of Judicial Candidates in Public Elections
RULE 4.3 Activities of Candidates for Appointive Judicial Office
RULE 4.4 Campaign Committees
RULE 4.5 Activities of Judges Who Become Candidates for Nonjudicial Office
[Adopted September 9, 2010; effective January 1, 2011]
CANON 1
A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY
OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY.
RULE 1.1
Compliance with the Law
A judge shall comply with the law,* including the Code of Judicial Conduct.
COMMENT
See Scope [6].
RULE 1.2
Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in
the independence,* integrity,* and impartiality* of the judiciary, and shall
avoid impropriety and the appearance of impropriety.*
COMMENT
[1] Public confidence in the judiciary is eroded by improper conduct. This
principle applies to both the professional and personal conduct of a judge.
[2] A judge should expect to be the subject of public scrutiny that might
be viewed as burdensome if applied to other citizens, and must accept the
restrictions imposed by the Code.
[3] Conduct that compromises the independence, integrity, and impartiality
of a judge undermines public confidence in the judiciary.
[4] Judges should participate in activities that promote ethical conduct
among judges and lawyers, support professionalism within the judiciary and
the legal profession, and promote access to justice for all.
[5] Actual improprieties include violations of law, court rules, or
provisions of this Code. The test for appearance of impropriety is whether
the conduct would create in reasonable minds a perception that the judge
violated this Code or engaged in other conduct that reflects adversely on
the judge's honesty, impartiality, temperament, or fitness to serve as a judge.
[6] A judge should initiate and participate in community outreach
activities for the purpose of promoting public understanding of and
confidence in the administration of justice. In conducting such activities,
the judge must act in a manner consistent with this Code.
RULE 1.3
Avoiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the personal
or economic interests* of the judge or others, or allow others to do so.
COMMENT
[1] It is improper for a judge to use or attempt to use his or her
position to gain personal advantage or deferential treatment of any kind.
For example, it would be improper for a judge to allude to his or her
judicial status to gain favorable treatment in encounters with traffic
officials. Similarly, a judge must not use judicial letterhead to gain an
advantage in conducting his or her personal business.
[2] A judge may provide a reference or recommendation for an individual
based upon the judge's personal knowledge. The judge may use official
letterhead if the judge indicates that the reference is personal and if
there is no likelihood that the use of the letterhead would reasonably be
perceived as an attempt to exert pressure by reason of the judicial office.
[3] Judges may participate in the process of judicial selection by
cooperating with appointing authorities and screening committees, and by
responding to inquiries from such entities concerning the professional
qualifications of a person being considered for judicial office.
[4] Special considerations arise when judges write or contribute to
publications of for-profit entities, whether related or unrelated to the
law. A judge should not permit anyone associated with the publication of
such materials to exploit the judge's office in a manner that violates this
Rule or other applicable law. In contracts for publication of a judge's
writing, the judge should retain sufficient control over the advertising to
avoid such exploitation.
[Adopted September 9, 2010; effective January 1, 2011]
CANON 2
A JUDGE SHOULD PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY,
COMPETENTLY, AND DILIGENTLY.
RULE 2.1
Giving Precedence to the Duties of Judicial Office
The duties of judicial office, as prescribed by law,* shall take precedence
over all of a judge's personal and extrajudicial activities.
COMMENT
[1] To ensure that judges are available to fulfill their judicial duties,
judges must conduct their personal and extrajudicial activities to minimize
the risk of conflicts that would result in frequent disqualification. See Canon 3.
[2] Although it is not a duty of judicial office unless prescribed by law,
judges are encouraged to participate in activities that promote public
understanding of and confidence in the justice system.
RULE 2.2
Impartiality and Fairness
A judge shall uphold and apply the law,* and shall perform all duties of
judicial office fairly and impartially.*
COMMENT
[1] To ensure impartiality and fairness to all parties, a judge must be
objective and open-minded.
[2] Although each judge comes to the bench with a unique background and
personal philosophy, a judge must interpret and apply the law without
regard to whether the judge approves or disapproves of the law in question.
[3] When applying and interpreting the law, a judge sometimes may make
good-faith errors of fact or law. Errors of this kind do not violate this
Rule.
[4] It is not a violation of this Rule for a judge to make reasonable
accommodations to ensure pro se litigants the opportunity to have their
matters fairly heard.
RULE 2.3
Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including
administrative duties, without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or
conduct manifest bias or prejudice, or engage in harassment, and shall not
permit court staff, court officials, or others subject to the judge's
direction and control to do so.
(C) A judge shall require lawyers in proceedings before the court to refrain
from manifesting bias or prejudice, or engaging in harassment, against
parties, witnesses, lawyers, or others.
(D) The restrictions of paragraphs (B) and (C) do not preclude judges or
lawyers from making reference to factors that are relevant to an issue in a proceeding.
COMMENT
[1] A judge who manifests bias or prejudice in a proceeding impairs the
fairness of the proceeding and brings the judiciary into disrepute.
[2] Examples of manifestations of bias or prejudice include but are not
limited to epithets; slurs; demeaning nicknames; negative stereotyping;
attempted humor based upon stereotypes; threatening, intimidating, or
hostile acts; suggestions of connections between race, ethnicity, or
nationality and crime; and irrelevant references to personal
characteristics. Even facial expressions and body language can convey to
parties and lawyers in the proceeding, jurors, the media, and others an
appearance of bias or prejudice. A judge must avoid conduct that may
reasonably be perceived as prejudiced or biased.
[3] Harassment, as referred to in paragraphs (B) and (C), is verbal or
physical conduct that denigrates or shows hostility or aversion toward a
person on bases such as race, sex, gender, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status,
socioeconomic status, or political affiliation.
[4] Sexual harassment includes but is not limited to sexual advances,
requests for sexual favors, and other verbal or physical conduct of a
sexual nature that is unwelcome.
[5] "Bias or prejudice" does not include references to or distinctions
based upon race, color, sex, religion, national origin, disability, age,
marital status, changes in marital status, pregnancy, parenthood, sexual
orientation, or social or economic status when these factors are
legitimately relevant to the advocacy or decision of the proceeding, or,
with regard to administrative matters, when these factors are legitimately
relevant to the issues involved.
RULE 2.4
External Influences on Judicial Conduct
(A) A judge shall not be swayed by public clamor, or fear of criticism.
(B) A judge shall not permit family, social, political, financial, or other
interests or relationships to influence the judge's judicial conduct or judgment.
(C) A judge shall not convey or authorize others to convey the impression that
any person or organization is in a position to influence the judge.
COMMENT
[1] Judges shall decide cases according to the law and facts, without
regard to whether particular laws or litigants are popular or unpopular
with the public, the media, government officials, or the judge's friends or family.
RULE 2.5
Competence, Diligence, and Cooperation
(A) A judge shall perform judicial and administrative duties, competently and
diligently.
(B) A judge shall cooperate with other judges and court officials in the
administration of court business.
COMMENT
[1] Competence in the performance of judicial duties requires the legal
knowledge, skill, thoroughness, and preparation reasonably necessary to
perform a judge's responsibilities of judicial office.
[2] In accordance with GR 29, a judge should seek the necessary docket
time, court staff, expertise, and resources to discharge all adjudicative
and administrative responsibilities.
[3] Prompt disposition of the court's business requires a judge to devote
adequate time to judicial duties, to be punctual in attending court and
expeditious in determining matters under submission, and to take reasonable
measures to ensure that court officials, litigants, and their lawyers
cooperate with the judge to that end.
[4] In disposing of matters promptly and efficiently, a judge must
demonstrate due regard for the rights of parties to be heard and to have
issues resolved without unnecessary cost or delay. A judge should monitor
and supervise cases in ways that reduce or eliminate dilatory practices,
avoidable delays, and unnecessary costs.
RULE 2.6
Ensuring the Right to Be Heard
(A) A judge shall accord to every person who has a legal interest in a
proceeding, or that person's lawyer, the right to be heard according to law.*
(B) Consistent with controlling court rules, a judge may encourage parties to
a proceeding and their lawyers to settle matters in dispute but should not
act in a manner that coerces any party into settlement.
COMMENT
[1] The right to be heard is an essential component of a fair and
impartial system of justice. Substantive rights of litigants can be
protected only if procedures protecting the right to be heard are observed.
[2] The judge plays an important role in overseeing the settlement of
disputes, but should be careful that efforts to further settlement do not
undermine any party's right to be heard according to law. The judge should
keep in mind the effect that the judge's participation in settlement
discussions may have, not only on the judge's own views of the case, but
also on the perceptions of the lawyers and the parties if the case remains
with the judge after settlement efforts are unsuccessful. Among the
factors that a judge should consider when deciding upon an appropriate
settlement practice for a case are (1) whether the parties have requested
or voluntarily consented to a certain level of participation by the judge
in settlement discussions, (2) whether the parties and their counsel are
relatively sophisticated in legal matters, (3) whether the case will be
tried by the judge or a jury, (4) whether the parties participate with
their counsel in settlement discussions, (5) whether any parties are
unrepresented by counsel, and (6) whether the matter is civil or criminal.
[3] Judges must be mindful of the effect settlement discussions can have,
not only on their objectivity and impartiality, but also on the appearance
of their objectivity and impartiality. Despite a judge's best efforts,
there may be instances when information obtained during settlement
discussions could influence a judge's decision making during trial, and, in
such instances, the judge should consider whether disqualification or
recusal may be appropriate. See RULE 2.11(A)(1).
RULE 2.7
Responsibility to Decide
A judge shall hear and decide matters assigned to the judge, except when
disqualification or recusal is required by RULE 2.11 or other law.*
COMMENT
[1] Judges must be available to decide the matters that come before the
court. Although there are times when disqualification is necessary to
protect the rights of litigants and preserve public confidence in the
independence, integrity, and impartiality of the judiciary, judges must be
available to decide matters that come before the courts. Unwarranted
disqualification may bring public disfavor to the court and to the judge
personally. The dignity of the court, the judge's respect for fulfillment
of judicial duties, and a proper concern for the burdens that may be
imposed upon the judge's colleagues require that a judge not use
disqualification or recusal to avoid cases that present difficult,
controversial, or unpopular issues.
RULE 2.8
Decorum, Demeanor, and Communication with Jurors
(A) A judge shall require order and decorum in proceedings before the court.
(B) A judge shall be patient, dignified, and courteous to litigants, jurors,
witnesses, lawyers, court staff, court officials, and others with whom the
judge deals in an official capacity, and shall require similar conduct of
lawyers, court staff, court officials, and others subject to the judge's
direction and control.
(C) A judge shall not commend or criticize jurors for their verdict other than
in a court order or opinion in a proceeding.
COMMENT
[1] The duty to hear all proceedings with patience and courtesy is not
inconsistent with the duty imposed in RULE 2.5 to dispose promptly of the
business of the court. Judges can be efficient and businesslike while
being patient and deliberate.
[2] Commending or criticizing jurors for their verdict may imply a
judicial expectation in future cases and may impair a juror's ability to be
fair and impartial in a subsequent case.
[3] A judge who is not otherwise prohibited by law from doing so may meet
with jurors who choose to remain after trial but should be careful not to
discuss the merits of the case.
RULE 2.9
Ex Parte Communications
(A) A judge shall not initiate, permit, or consider ex parte communications,
or consider other communications made to the judge outside the presence of
the parties or their lawyers, concerning a pending* or impending matter,*
before that judge's court except as follows:
(1) When circumstances require it, ex parte communication for
scheduling, administrative, or emergency purposes, which does not address
substantive matters, or ex parte communication pursuant to a written
policy or rule for a mental health court, drug court, or other
therapeutic court, is permitted, provided:
(a) the judge reasonably believes that no party will gain a procedural,
substantive, or tactical advantage as a result of the ex parte communication; and
(b) the judge makes provision promptly to notify all other parties of the
substance of the ex parte communication, and gives the parties an
opportunity to respond.
(2) A judge may obtain the written advice of a disinterested expert on the
law applicable to a proceeding before the judge, if the judge affords the
parties a reasonable opportunity to object and respond to the advice received.
(3) A judge may consult with court staff and court officials whose
functions are to aid the judge in carrying out the judge's adjudicative
responsibilities, or with other judges, provided the judge makes
reasonable efforts to avoid receiving factual information that is not
part of the record, and does not abrogate the responsibility personally
to decide the matter.
(4) A judge may, with the consent of the parties, confer separately with
the parties and their lawyers in an effort to settle matters pending
before the judge.
(5) A judge may initiate, permit, or consider any ex parte communication
when expressly authorized by law* to do so.
(B) If a judge inadvertently receives an unauthorized ex parte communication
bearing upon the substance of a matter, the judge shall make provision
promptly to notify the parties of the substance of the communication and
provide the parties with an opportunity to respond.
(C) A judge shall not investigate facts in a matter pending or impending
before that judge, and shall consider only the evidence presented and any
facts that may properly be judicially noticed, unless expressly authorized by law.
(D) A judge shall make reasonable efforts, including providing appropriate
supervision, to ensure that this Rule is not violated by court staff, court
officials, and others subject to the judge's direction and control.
COMMENT
[1] To the extent reasonably possible, all parties or their lawyers shall
be included in communications with a judge.
[2] Whenever the presence of a party or notice to a party is required by
this Rule, it is the party's lawyer, or if the party is unrepresented, the
party, who is to be present or to whom notice is to be given.
[3] The proscription against communications concerning a proceeding
includes communications with lawyers, law teachers, and other persons who
are not participants in the proceeding, except to the limited extent
permitted by this Rule.
[4] A judge may initiate, permit, or consider ex parte communications
expressly authorized by law, such as when serving on therapeutic or problem-
solving courts, mental health courts, or drug courts. In this capacity,
judges may assume a more interactive role with parties, treatment
providers, probation officers, social workers, and others.
[5] A judge may consult with other judges on pending matters, but must
avoid ex parte discussions of a case with judges who have previously been
disqualified from hearing the matter, and with judges who have appellate
jurisdiction over the matter.
[6] The prohibition against a judge investigating the facts in a matter
extends to information available in all mediums, including electronic.
[7] A judge may consult ethics advisory committees, outside counsel, or
legal experts concerning the judge's compliance with this Code. Such
consultations are not subject to the restrictions of paragraph (A)(2).
RULE 2.10
udicial Statements on Pending and Impending Cases
(A) A judge shall not make any public statement that would reasonably be
expected to affect the outcome or impair the fairness of a matter pending*
or impending* in any court, or make any nonpublic statement that would
reasonably be expected to substantially interfere with a fair trial or hearing.
(B) A judge shall not, in connection with cases, controversies, or issues that
are likely to come before the court, make pledges, promises, or commitments
that are inconsistent with the impartial* performance of the adjudicative
duties of judicial office.
(C) A judge shall require court staff, court officials, and others subject to
the judge's direction and control to refrain from making statements that
the judge would be prohibited from making by paragraphs (A) and (B).
(D) Notwithstanding the restrictions in paragraph (A), a judge may make public
statements in the course of official duties, may explain court procedures, and
may comment on any proceeding in which the judge is a litigant in a personal capacity.
(E) Subject to the requirements of paragraph (A), a judge may respond directly
or through a third party to allegations in the media or elsewhere
concerning the judge's conduct in a matter.
COMMENT
[1] This Rule's restrictions on judicial speech are essential to the
maintenance of the independence, integrity, and impartiality of the judiciary.
[2] This Rule does not prohibit a judge from commenting on proceedings in
which the judge is a litigant in a personal capacity. In cases in which the
judge is a litigant in an official capacity, such as a writ of mandamus,
the judge must not comment publicly.
[3] Depending upon the circumstances, the judge should consider whether it
may be preferable for a third party, rather than the judge, to respond or
issue statements in connection with allegations concerning the judge's
conduct in a matter.
[4] A judge should use caution in discussing the rationale for a decision
and limit such discussion to what is already public record or controlling law.
RULE 2.11
Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the
judge's impartiality* might reasonably be questioned, including but not
limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party's
lawyer, or personal knowledge* of facts that are in dispute in the proceeding.
(2) The judge knows* that the judge, the judge's spouse or domestic
partner,* or a person within the third degree of relationship* to either
of them, or the spouse or domestic partner of such a person is:
(a) a party to the proceeding, or an officer, director, general partner,
managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis* interest that could be
substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary,* or the
judge's spouse, domestic partner, parent, or child, or any other member
of the judge's family residing in the judge's household,* has an economic
interest* in the subject matter in controversy or in a party to the proceeding.
(4) [Reserved]
(5) The judge, while a judge or a judicial candidate,* has made a public
statement, other than in a court proceeding, judicial decision, or
opinion, that commits the judge to reach a particular result or rule in a
particular way in the proceeding or controversy.
(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated
with a lawyer who participated substantially as a lawyer or a material
witness in the matter during such association;
(b) served in governmental employment, and in such capacity participated
personally and substantially as a public official concerning the proceeding,
or has publicly expressed in such capacity an opinion concerning the merits
of the particular matter in controversy;
(c) was a material witness concerning the matter; or
(d) previously presided as a judge over the matter in another court.
(B) A judge shall keep informed about the judge's personal and fiduciary
economic interests, and make a reasonable effort to keep informed about the
personal economic interests of the judge's spouse or domestic partner and
minor children residing in the judge's household.
(C) A judge disqualified by the terms of RULE 2.11(A)(2) or RULE 2.11(A)(3)
may, instead of withdrawing from the proceeding, disclose on the record the
basis of the disqualification. If, based on such disclosure, the parties
and lawyers, independently of the judge's participation, all agree in
writing or on the record that the judge's relationship is immaterial or
that the judge's economic interest is de minimis, the judge is no longer
disqualified, and may participate in the proceeding. When a party is not
immediately available, the judge may proceed on the assurance of the lawyer
that the party's consent will be subsequently given.
(D) A judge may disqualify himself or herself if the judge learns by means of
a timely motion by a party that an adverse party has provided financial
support for any of the judge's judicial election campaigns within the last
six years in an amount that causes the judge to conclude that his or her
impartiality might reasonably be questioned. In making this determination
the judge should consider:
(1) the total amount of financial support provided by the party relative
to the total amount of the financial support for the judge's election,
(2) the timing between the financial support and the pendency of the matter, and
(3) any additional circumstances pertaining to disqualification.
COMMENT
[1] Under this Rule, a judge is disqualified whenever the judge's
impartiality might reasonably be questioned, regardless of whether any of
the specific provisions of paragraphs (A)(1) through (5) apply. In many
jurisdictions in Washington, the term "recusal" is used interchangeably
with the term "disqualification."
[2] A judge's obligation not to hear or decide matters in which
disqualification is required applies regardless of whether a motion to
disqualify is filed.
[3] The rule of necessity may override the rule of disqualification. For
example, a judge might be required to participate in judicial review of a
judicial salary statute, or might be the only judge available in a matter
requiring immediate judicial action, such as a hearing on probable cause or
a temporary restraining order. In matters that require immediate action,
the judge must disclose on the record the basis for possible
disqualification and make reasonable efforts to transfer the matter to
another judge as soon as practicable.
[4] The fact that a lawyer in a proceeding is affiliated with a law firm
with which a relative of the judge is affiliated does not itself disqualify
the judge. If, however, the judge's impartiality might reasonably be
questioned under paragraph (A), or the relative is known by the judge to
have an interest in the law firm that could be substantially affected by
the proceeding under paragraph (A)(2)(c), the judge's disqualification is required.
[5] A judge should disclose on the record information that the judge
believes the parties or their lawyers might reasonably consider relevant to
a possible motion for disqualification, even if the judge believes there is
no basis for disqualification.
[6] "Economic interest," as set forth in the Terminology section, means
ownership of more than a de minimis legal or equitable interest. Except
for situations in which a judge participates in the management of such a
legal or equitable interest, or the interest could be substantially
affected by the outcome of a proceeding before a judge, it does not include:
(1) an interest in the individual holdings within a mutual or common
investment fund;
(2) an interest in securities held by an educational, religious,
charitable, fraternal, or civic organization in which the judge or the
judge's spouse, domestic partner, parent, or child serves as a director,
officer, advisor, or other participant;
(3) a deposit in a financial institution or deposits or proprietary
interests the judge may maintain as a member of a mutual savings
association or credit union, or similar proprietary interests; or
(4) an interest in the issuer of government securities held by the judge.
[7] [Reserved]
[8] [Reserved]
RULE 2.12
Supervisory Duties
(A) A judge shall require court staff, court officials, and others subject to
the judge's direction and control to act with fidelity and in a diligent
manner consistent with the judge's obligations under this Code.
(B) A judge with supervisory authority for the performance of other judges
shall take reasonable measures to ensure that those judges properly
discharge their judicial responsibilities, including the prompt disposition
of matters before them.
COMMENT
[1] A judge is responsible for his or her own conduct and for the conduct
of others, such as staff, when those persons are acting at the judge's
direction or control. A judge may not direct court personnel to engage in
conduct on the judge's behalf or as the judge's representative when such
conduct would violate the Code if undertaken by the judge.
[2] Public confidence in the judicial system depends upon timely justice.
To promote the efficient administration of justice, a judge with
supervisory authority must take the steps needed to ensure that judges
under his or her supervision administer their workloads promptly.
RULE 2.13
Administrative Appointments
(A) In making administrative appointments, a judge:
(1) shall exercise the power of appointment impartially* and on the
basis of merit; and
(2) shall avoid nepotism and unnecessary appointments.
(B) A judge shall not appoint a lawyer to a position under circumstances
where it would be reasonably to be interpreted to be quid pro quo for
campaign contributions or other favors, unless:
(1) the position is substantially uncompensated;
(2) the lawyer has been selected in rotation from a list of qualified
and available lawyers compiled without regard to their having made
political contributions; or
(3) the judge or another presiding or administrative judge
affirmatively finds that no other lawyer is willing, competent, and able
to accept the position.
(C) A judge shall not approve compensation of appointees beyond the fair value
of services rendered.
COMMENT
[1] Appointees of a judge include assigned counsel, officials such as
referees, commissioners, special masters, receivers, and guardians, and
personnel such as clerks, secretaries, and bailiffs. Consent by the parties
to an appointment or an award of compensation does not relieve the judge of
the obligation prescribed by paragraph (A).
[2] Unless otherwise defined by law, nepotism is the appointment or hiring
of any relative within the third degree of relationship of either the judge
or the judge's spouse or domestic partner, or the spouse or domestic
partner of such relative.
RULE 2.14
Disability and Impairment
A judge having a reasonable belief that the performance of a lawyer or another
judge is impaired by drugs or alcohol, or by a mental, emotional, or physical
condition, shall take appropriate action, which may include a confidential
referral to a lawyer or judicial assistance program.
COMMENT
[1] "Appropriate action" means action intended and reasonably likely to
help the judge or lawyer in question address the problem and prevent harm to
the justice system. Depending upon the circumstances, appropriate action
may include but is not limited to speaking directly to the impaired person,
notifying an individual with supervisory responsibility over the impaired
person, or making a referral to an assistance program.
[2] Taking or initiating corrective action by way of referral to an
assistance program may satisfy a judge's responsibility under this Rule.
Assistance programs have many approaches for offering help to impaired
judges and lawyers, such as intervention, counseling, or referral to
appropriate health care professionals. Depending upon the gravity of the
conduct that has come to the judge's attention, however, the judge may be
required to take other action, such as reporting the impaired judge or
lawyer to the appropriate authority, agency, or body. See RULE 2.15.
RULE 2.15
Responding to Judicial and Lawyer Misconduct
(A) A judge having knowledge* that another judge has committed a violation
of this Code that raises a substantial question regarding the judge's
honesty, trustworthiness, or fitness as a judge in other respects should
inform the appropriate authority.*
(B) A judge having knowledge that a lawyer has committed a violation of
the Rules of Professional Conduct that raises a substantial question
regarding the lawyer's honesty, trustworthiness, or fitness as a lawyer in
other respects should inform the appropriate authority.
(C) A judge who receives credible information indicating a substantial
likelihood that another judge has committed a violation of this Code should
take appropriate action.
(D) A judge who receives credible information indicating a substantial
likelihood that a lawyer has committed a violation of the Rules of
Professional Conduct should take appropriate action.
COMMENT
[1] Judges are not required to report the misconduct of other judges or
lawyers. Self regulation of the legal and judicial professions, however,
creates an aspiration that judicial officers report misconduct to the
appropriate disciplinary authority when they know of a serious violation of
the Code of Judicial Conduct or the Rules of Professional Conduct. An
apparently isolated violation may indicate a pattern of misconduct that
only a disciplinary violation can uncover. Reporting a violation is
especially important where the victim is unlikely to discover the offense.
[2] While judges are not obliged to report every violation of the Code of
Judicial Conduct or the Rules of Professional Conduct, the failure to
report may undermine the public confidence in legal profession and the
judiciary. A measure of judgment is, therefore, required in deciding
whether to report a violation. The term "substantial" refers to the
seriousness of the possible offense and not the quantum of evidence of
which the judge is aware. A report should be made when a judge or lawyer's
conduct raises a serious question as to the honesty, trustworthiness or
fitness as a judge or lawyer.
[3] Appropriate action under sections (C) and (D) may include
communicating directly with the judge or lawyer who may have violated the
Code of Judicial Conduct or the Rules of Professional Conduct,
communicating with a supervising judge or reporting the suspected violation
to the appropriate authority or other authority or other agency or body.
[4] Information about a judge's or lawyer's conduct may be received by a
judge in the course of that judge's participation in an approved lawyers or
judges assistance program. In that circumstance there is no requirement or
aspiration of reporting (APR 19(b) and DRJ 14(e)).
RULE 2.16
Cooperation with Disciplinary Authorities
(A) A judge shall cooperate and be candid and honest with judicial and lawyer
disciplinary agencies.
(B) A judge shall not retaliate, directly or indirectly, against a person
known* or suspected to have assisted or cooperated with an investigation of
a judge or a lawyer.
COMMENT
[1] Cooperation with investigations and proceedings of judicial and lawyer
disciplinary agencies, as required in paragraph (A), instills confidence in
judges' commitment to the integrity of the judicial system and the
protection of the public.
[Adopted September 9, 2010; effective January 1, 2011]
CANON 3
A JUDGE SHALL CONDUCT THE JUDGE'S PERSONAL AND EXTRAJUDICIAL ACTIVITIES TO
MINIMIZE THE RISK OF CONFLICT WITH THE OBLIGATIONS OF JUDICIAL OFFICE.
RULE 3.1
Extrajudicial Activities in General
A judge may engage in extrajudicial activities, except as prohibited by law* or
this Code. However, when engaging in extrajudicial activities, a judge shall not:
(A) participate in activities that will interfere with the proper performance
of the judge's judicial duties;
(B) participate in activities that will lead to frequent disqualification of
the judge; except activities expressly allowed under this code. This rule
does not apply to national or state military service;
(C) participate in activities that would undermine the judge's independence,*
integrity,* or impartiality;*
(D) engage in conduct that would be coercive; or
(E) make extrajudicial or personal use of court premises, staff, stationery,
equipment, or other resources, except for incidental use permitted by law.
COMMENT
[1] Participation in both law-related and other extrajudicial activities
helps integrate judges into their communities, and furthers public
understanding of and respect for courts and the judicial system. To the
extent that time permits, and judicial independence and impartiality are
not compromised, judges are encouraged to engage in appropriate
extrajudicial activities. Judges are uniquely qualified to engage in
extrajudicial activities that concern the law, the legal system, and the
administration of justice, such as by speaking, writing, teaching, or
participating in scholarly research projects. In addition, judges are
permitted and encouraged to engage in educational, religious, charitable,
fraternal or civic extrajudicial activities not conducted for profit, even
when the activities do not involve the law. See Rule 3.7.
[2] Discriminatory actions and expressions of bias or prejudice by a
judge, even outside the judge's official or judicial actions, are likely to
appear to a reasonable person to call into question the judge's integrity
and impartiality. Examples include jokes or other remarks that demean
individuals based upon their race, sex, gender, religion, national origin,
ethnicity, disability, age, sexual orientation, or socioeconomic status.
For the same reason, a judge's extrajudicial activities must not be
conducted in connection or affiliation with an organization that practices
invidious discrimination.
[3] While engaged in permitted extrajudicial activities, judges must not
coerce others or take action that would reasonably be perceived as
coercive. For example, depending upon the circumstances, a judge's
solicitation of contributions or memberships for an organization, even as
permitted by Rule 3.7(A), might create the risk that the person solicited
would feel obligated to respond favorably, or would do so to curry favor
with the judge.
[4] Before speaking or writing about social or political issues, judges
should consider the impact of their statements under Canon 3.
RULE 3.2
Appearances before Governmental Bodies and Consultation with Government Officials
A judge shall not appear voluntarily at a public hearing before, or otherwise
consult with, an executive or a legislative body or official, except:
(A) in connection with matters concerning the law, the legal system, or the
administration of justice;
(B) in connection with matters about which the judge acquired knowledge or
expertise in the course of the judge's judicial duties; or
(C) when the judge is acting in a matter involving the judge's, the judge's
marital community's, or the judge's domestic partnership's legal or
economic interests, or those of members of the judge's immediate family
residing in the judge's household, or when the judge is acting in a
fiduciary* capacity. In engaging in such activities, however, judges must
exercise caution to avoid abusing the prestige of judicial office.
COMMENT
[1] Judges possess special expertise in matters of law, the legal system,
and the administration of justice, and may properly share that expertise
with governmental bodies and executive or legislative branch officials.
[2] In appearing before governmental bodies or consulting with government
officials, judges must be mindful that they remain subject to other
provisions of this Code, such as Rule 1.3, prohibiting judges from using
the prestige of office to advance their own or others' interests, Rule
2.10, governing public comment on pending and impending matters, and Rule
3.1(C), prohibiting judges from engaging in extrajudicial activities that
would appear to a reasonable person to undermine the judge's independence,
integrity, or impartiality.
RULE 3.3
Acting as a Character Witness
A judge shall not act as a character witness in a judicial, administrative, or
other adjudicatory proceeding or otherwise vouch for the character of a person
in a legal proceeding, except when duly summoned.
COMMENT
[1] A judge who, without being subpoenaed, acts as a character witness
abuses the prestige of judicial office to advance the interests of another.
See Rule 1.3. Except in unusual circumstances where the demands of justice
require, a judge should discourage a party from requiring the judge to act
as a character witness.
[2] This rule does not prohibit judges from writing letters of recommendation
in non-adjudicative proceedings pursuant to Rule 1.3, comments [2] and [3].
RULE 3.4
Appointments to Governmental Positions
A judge shall not accept appointment to a governmental committee, board,
commission, or other governmental position, unless it is one that concerns the
law, the legal system, or the administration of justice. A judge may represent
his or her country, state, or locality on ceremonial occasions or in connection
with historical, educational, or cultural activities.
COMMENT
[1] Rule 3.4 implicitly acknowledges the value of judges accepting
appointments to entities that concern the law, the legal system, or the
administration of justice. Even in such instances, however, a judge should
assess the appropriateness of accepting an appointment, paying particular
attention to the subject matter of the appointment and the availability and
allocation of judicial resources, including the judge's time commitments,
and giving due regard to the requirements of the independence and
impartiality of the judiciary.
RULE 3.5
Use of Nonpublic Information
A judge shall not intentionally disclose or use nonpublic information* acquired
in a judicial capacity for any purpose unrelated to the judge's judicial duties.
COMMENT
[1] This rule is not intended to affect a judge's ability to act on
information as necessary to protect the health or safety of any individual
if consistent with other provisions of this Code and/or law.
RULE 3.6
Affiliation with Discriminatory Organizations
(A) A judge shall not hold membership in any organization that practices
invidious discrimination on the bases of race, sex, gender, religion,
national origin, ethnicity, sexual orientation or other classification
protected by law.
(B) A judge shall not use the benefits or facilities of an organization if the
judge knows* or should know that the organization practices invidious
discrimination on one or more of the bases identified in paragraph (A). A
judge's attendance at an event in a facility of an organization that the
judge is not permitted to join is not a violation of this Rule when the
judge's attendance is an isolated event that could not reasonably be
perceived as an endorsement of the organization's practices.
COMMENT
[1] A judge's public manifestation of approval of invidious discrimination
on any basis gives rise to the appearance of impropriety and diminishes
public confidence in the integrity and impartiality of the judiciary. A
judge's membership in an organization that practices invidious
discrimination creates the perception that the judge's impartiality is
impaired.
[2] Whether an organization practices invidious discrimination is a
complex question to which judges should be attentive at all times, given
the prevailing state and federal law. The answer cannot be determined from
a mere examination of an organization's current membership rolls, but
rather, depends on how the organization selects members, as well as other
relevant factors, such as the organization's purposes or activities, and
whether the organization is dedicated to the preservation or religious,
ethnic, or cultural values of legitimate common interest to its members.
[3] If a judge learns that an organization to which the judge belongs
engages in invidious discrimination, the judge must resign immediately from
the organization.
[4] A judge's membership in a religious organization as a lawful exercise
of the freedom of religion is not a violation of this Rule.
RULE 3.7
Participation in Educational, Religious, Charitable, Fraternal, or Civic
Organizations and Activities
Subject to the requirements of Rule 3.1, a judge may participate in activities
sponsored by organizations or governmental entities concerned with the law, the
legal system, or the administration of justice, and those sponsored by or on
behalf of educational, religious, charitable, fraternal, or civic organizations
not conducted for profit, including but not limited to the following
activities:
(A) assisting such an organization or entity in planning related to
fundraising, and participating in the management and investment of the
organization's or entity's funds, or volunteering services or goods at
fundraising events as long as the situation could not reasonably be deemed
coercive;
(B) soliciting* contributions* for such an organization or entity, but only
from members of the judge's family,* or from judges over whom the judge
does not exercise supervisory or appellate authority;
(C) appearing or speaking at, receiving an award or other recognition at,
being featured on the program of, and permitting his or her title to be
used in connection with an event of such an organization or entity, but if
the event serves a fundraising purpose, the judge may do so only if the
event concerns the law, the legal system, or the administration of justice;
(D) serving as an officer, director, trustee, or nonlegal advisor of such an
organization or entity, unless it is likely that the organization or
entity:
(1) will be engaged in proceedings that would ordinarily come before the
judge; or
(2) will frequently be engaged in adversary proceedings in the court of
which the judge is a member, or in any court subject to the appellate
jurisdiction of the court of which the judge is a member.
COMMENT
[1] The activities permitted by Rule 3.7 generally include those sponsored
by or undertaken on behalf of public or private not-for-profit educational
institutions, and other not-for-profit organizations, including law-
related, charitable, and other organizations.
[2] Even for law-related organizations, a judge should consider whether
the membership and purposes of the organization, or the nature of the
judge's participation in or association with the organization, would
conflict with the judge's obligation to refrain from activities that
reflect adversely upon a judge's independence, integrity, and impartiality.
[3] Mere attendance at an event, whether or not the event serves a
fundraising purpose, does not constitute a violation of paragraph (C). It
is also generally permissible for a judge to serve as an usher or a food
server or preparer, or to perform similar functions, at fundraising events
sponsored by educational, religious, charitable, fraternal, or civic
organizations. Such activities are not solicitation and do not present an
element of coercion or abuse the prestige of judicial office.
[4] Identification of a judge's position in educational, religious,
charitable, fraternal, or civic organizations on letterhead used for
fundraising or membership solicitation does not violate this Rule. The
letterhead may list the judge's title or judicial office if comparable
designations are used for other persons.
[5] In addition to appointing lawyers to serve as counsel for indigent
parties in individual cases, a judge may promote broader access to justice
by encouraging lawyers to participate in pro bono legal services, if in
doing so the judge does not employ coercion, or abuse the prestige of
judicial office. Such encouragement may take many forms, including
providing lists of available programs, training lawyers to do pro bono
legal work, and participating in events recognizing lawyers who have done
pro bono work.
[6] A judge may not directly solicit funds, except as permitted under Rule
3.7(B), however a judge may assist a member of the judge's family in their
charitable fundraising activities if the procedures employed are not
coercive and the sum is de minimis.
[7] [Reserved.]
[8] A judge may provide leadership in identifying and addressing issues
involving equal access to the justice system; developing public education
programs; engaging in activities to promote the fair administration of
justice; and convening, participating or assisting in advisory committees
and community collaborations devoted to the improvement of the law, the
legal system, the provision of services, or the administration of justice.
[9] A judge may endorse or participate in projects and programs directly
related to the law, the legal system, the administration of justice, and
the provision of services to those coming before the courts, and may
actively support the need for funding of such projects and programs.
RULE 3.8
Appointments to Fiduciary Positions
(A) A judge shall not accept appointment to serve in a fiduciary* position,
such as executor, administrator, trustee, guardian, attorney in fact, or
other personal representative, except for the estate, trust, or person of a
member of the judge's family,* and then only if such service will not
interfere with the proper performance of judicial duties.
(B) A judge shall not serve in a fiduciary position if the judge as fiduciary
will likely be engaged in proceedings that would ordinarily come before the
judge, or if the estate, trust, or ward becomes involved in adversary
proceedings in the court on which the judge serves, or one under its
appellate jurisdiction.
(C) A judge acting in a fiduciary capacity shall be subject to the same
restrictions on engaging in financial activities that apply to a judge
personally.
(D) If a person who is serving in a fiduciary position becomes a judge, he or
she must comply with this Rule as soon as reasonably practicable, but in no
event later than one year after becoming a judge.
COMMENT
[1] A judge should recognize that other restrictions imposed by this Code
may conflict with a judge's obligations as a fiduciary; in such
circumstances, a judge should resign as fiduciary. For example, serving as
a fiduciary might require frequent disqualification of a judge under Rule
2.11 because a judge is deemed to have an economic interest in shares of
stock held by a trust if the amount of stock held is more than de minimis.
RULE 3.9
Service as Arbitrator or Mediator
A judge shall not act as an arbitrator or a mediator or perform other judicial
functions in a private capacity unless authorized by law.*
COMMENT
[1] This Rule does not prohibit a judge from participating in arbitration,
mediation, or settlement conferences performed as part of assigned judicial
duties. Rendering dispute resolution services apart from those duties,
whether or not for economic gain, is prohibited unless it is authorized by
law.
[2] Retired, part-time, or pro tempore judges may be exempt from this
section. (See Application)
RULE 3.10
Practice of Law
(A) A judge shall not practice law. A judge may act pro se or on behalf of
his or her marital community or domestic partnership and may, without
compensation, give legal advice to and draft or review documents for a
member of the judge's family,* but is prohibited from serving as the family
member's lawyer in any adjudicative forum.
(B) This rule does not prevent the practice of law pursuant to national or
state military service.
COMMENT
[1] A judge may act pro se or on behalf of his or her marital community or
domestic partnership in all legal matters, including matters involving
litigation and matters involving appearances before or other dealings with
governmental bodies. A judge must not use the prestige of office to
advance the judge's personal or family interests. See Rule 1.3.
RULE 3.11
Financial, Business, or Remunerative Activities
(A) A judge may hold and manage investments of the judge and members of the
judge's family.*
(B) A judge shall not serve as an officer, director, manager, general partner,
advisor, or employee of any business entity except that a judge may manage
or participate in:
(1) a business closely held by the judge or members of the judge's family; or
(2) a business entity primarily engaged in investment of the financial
resources of the judge or members of the judge's family.
(C) A judge shall not engage in financial activities permitted under
paragraphs (A) and (B) if they will:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business
relationships with lawyers or other persons likely to come before the
court on which the judge serves; or
(4) result in violation of other provisions of this Code.
(D) As soon as practicable without serious financial detriment, the judge must
divest himself or herself of investments and other financial interests that
might require frequent disqualification or otherwise violate this Rule.
COMMENT
[1] Judges are generally permitted to engage in financial activities,
subject to the requirements of this Rule and other provisions of this Code.
For example, it would be improper for a judge to spend so much time on
business activities that it interferes with the performance of judicial
duties. See Rule 2.1. Similarly, it would be improper for a judge to use
his or her official title or appear in judicial robes in business
advertising, or to conduct his or her business or financial affairs in such
a way that disqualification is frequently required. See Rules 1.3 and
2.11.
[2] There is a limit of not more than one (1) year allowed to comply with
Rule 3.11(D). (See Application Part IV)
RULE 3.12
Compensation for Extrajudicial Activities
A judge may accept reasonable compensation for extrajudicial activities
permitted by this Code or other law* unless such acceptance would appear to a
reasonable person to undermine the judge's independence,* integrity,* or impartiality.*
COMMENT
[1] A judge is permitted to accept honoraria, stipends, fees, wages,
salaries, royalties, or other compensation for speaking, teaching, writing,
and other extrajudicial activities, provided the compensation is reasonable
and commensurate with the task performed. The judge should be mindful,
however, that judicial duties must take precedence over other activities.
See Rule 2.1.
[2] Compensation derived from extrajudicial activities may be subject to
public reporting. See Rule 3.15.
RULE 3.13
Acceptance and Reporting of Gifts, Loans, Bequests, Benefits, or Other Things of Value
(A) A judge shall not accept any gifts, loans, bequests, benefits, or
other things of value, if acceptance is prohibited by law* or would appear
to a reasonable person to undermine the judge's independence,* integrity,*
or impartiality.*
(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may
accept the following:
(1) items with little intrinsic value, such as plaques, certificates,
trophies, and greeting cards;
(2) gifts, loans, bequests, benefits, or other things of value from
friends, relatives, or other persons, including lawyers, whose appearance
or interest in a proceeding pending* or impending* before the judge would
in any event require disqualification of the judge under Rule 2.11;
(3) ordinary social hospitality;
(4) commercial or financial opportunities and benefits, including
special pricing and discounts, and loans from lending institutions in
their regular course of business, if the same opportunities and benefits
or loans are made available on the same terms to similarly situated
persons who are not judges;
(5) rewards and prizes given to competitors or participants in random
drawings, contests, or other events that are open to persons who are not judges;
(6) scholarships, fellowships, and similar benefits or awards, if they
are available to similarly situated persons who are not judges, based
upon the same terms and criteria;
(7) books, magazines, journals, audiovisual materials, and other
resource materials supplied by publishers on a complimentary basis for
official use; or
(8) gifts, awards, or benefits associated with the business, profession,
or other separate activity of a spouse, a domestic partner,* or other
family member of a judge residing in the judge's household,* but that
incidentally benefit the judge.
(9) gifts incident to a public testimonial;
(10) invitations to the judge and the judge's spouse, domestic partner, or
guest to attend without charge:
(a) an event associated with a bar-related function or other
activity relating to the law, the legal system, or the administration
of justice; or
(b) an event associated with any of the judge's educational,
religious, charitable, fraternal or civic activities permitted by
this Code, if the same invitation is offered to nonjudges who are
engaged in similar ways in the activity as is the judge.
COMMENT
[1] Whenever a judge accepts a gift or other thing of value without paying
fair market value, there is a risk that the benefit might be viewed as
intended to influence the judge's decision in a case. Rule 3.13 imposes
restrictions upon the acceptance of such benefits. Acceptance of any gift
or thing of value may require reporting pursuant to Rule 3.15 and
Washington law.
[2] Gift-giving between friends and relatives is a common occurrence, and
ordinarily does not create an appearance of impropriety or cause reasonable
persons to believe that the judge's independence, integrity, or
impartiality has been compromised. In addition, when the appearance of
friends or relatives in a case would require the judge's disqualification
under Rule 2.11, there would be no opportunity for a gift to influence the
judge's decision making. Paragraph (B)(2) places no restrictions upon the
ability of a judge to accept gifts or other things of value from friends or
relatives under these circumstances.
[3] Businesses and financial institutions frequently make available
special pricing, discounts, and other benefits, either in connection with a
temporary promotion or for preferred customers, based upon longevity of the
relationship, volume of business transacted, and other factors. A judge
may freely accept such benefits if they are available to the general
public, or if the judge qualifies for the special price or discount
according to the same criteria as are applied to persons who are not
judges. As an example, loans provided at generally prevailing interest
rates are not gifts, but a judge could not accept a loan from a financial
institution at below-market interest rates unless the same rate was being
made available to the general public for a certain period of time or only
to borrowers with specified qualifications that the judge also possesses.
[4] Rule 3.13 applies only to acceptance of gifts or other things of value
by a judge. Nonetheless, if a gift or other benefit is given to the judge's
spouse, domestic partner, or member of the judge's family residing in the
judge's household, it may be viewed as an attempt to evade Rule 3.13 and
influence the judge indirectly. Where the gift or benefit is being made
primarily to such other persons, and the judge is merely an incidental
beneficiary, this concern is reduced. A judge should, however, remind
family and household members of the restrictions imposed upon judges, and
urge them to take these restrictions into account when making decisions
about accepting such gifts or benefits.
[5] Rule 3.13 does not apply to contributions to a judge's campaign for
judicial office. Such contributions are governed by other Rules of this
Code, including Rules 4.3 and 4.4.
RULE 3.14
Reimbursement of Expenses and Waivers of Fees or Charges
(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law,* a
judge may accept reimbursement of necessary and reasonable expenses for
travel, food, lodging, or other incidental expenses, or a waiver or partial
waiver of fees or charges for registration, tuition, and similar items,
from sources other than the judge's employing entity, if the expenses or
charges are associated with the judge's participation in extrajudicial
activities permitted by this Code.
(B) Reimbursement of expenses for necessary travel, food, lodging, or other
incidental expenses shall be limited to the actual costs reasonably
incurred by the judge.
COMMENT
[1] Educational, civic, religious, fraternal, and charitable organizations
often sponsor meetings, seminars, symposia, dinners, awards ceremonies, and
similar events. Judges are encouraged to attend educational programs, as
both teachers and participants, in law-related and academic disciplines, in
furtherance of their duty to remain competent in the law. Participation in
a variety of other extrajudicial activity is also permitted and encouraged
by this Code.
[2] Not infrequently, sponsoring organizations invite certain judges to
attend seminars or other events on a fee-waived or partial-fee-waived
basis, and sometimes include reimbursement for necessary travel, food,
lodging, or other incidental expenses. A judge's decision whether to
accept reimbursement of expenses or a waiver or partial waiver of fees or
charges in connection with these or other extrajudicial activities must be
based upon an assessment of all the circumstances. The judge must
undertake a reasonable inquiry to obtain the information necessary to make
an informed judgment about whether acceptance would be consistent with the
requirements of this Code and Washington law.
[3] A judge must assure himself or herself that acceptance of
reimbursement or fee waivers would not appear to a reasonable person to
undermine the judge's independence, integrity, or impartiality. The
factors that a judge should consider when deciding whether to accept
reimbursement or a fee waiver for attendance at a particular activity include:
(a) whether the sponsor is an accredited educational institution or bar
association rather than a trade association or a for-profit entity;
(b) whether the funding comes largely from numerous contributors rather
than from a single entity and is earmarked for programs with specific content;
(c) whether the content is related or unrelated to the subject matter
of litigation pending or impending before the judge, or to matters that
are likely to come before the judge;
(d) whether the activity is primarily educational rather than
recreational, and whether the costs of the event are reasonable and
comparable to those associated with similar events sponsored by the
judiciary, bar associations, or similar groups;
(e) whether information concerning the activity and its funding
source(s) is available upon inquiry;
(f) whether the sponsor or source of funding is generally associated
with particular parties or interests currently appearing or likely to
appear in the judge's court, thus possibly requiring disqualification of
the judge under Rule 2.11;
(g) whether differing viewpoints are presented; and
(h) whether a broad range of judicial and nonjudicial participants are
invited, whether a large number of participants are invited, and whether
the program is designed specifically for judges.
RULE 3.15
Reporting Requirements
A judge shall make such financial disclosures as required by law.
[Adopted September 9, 2010; effective January 1, 2011]
CANON 4
A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL NOT ENGAGE IN POLITICAL OR
CAMPAIGN ACTIVITY THAT IS INCONSISTENT WITH THE INDEPENDENCE, INTEGRITY, OR
IMPARTIALITY OF THE JUDICIARY.
RULE 4.1
Political and Campaign Activities of Judges and Judicial Candidates in General
(A) Except as permitted by law,* or by Rules 4.2 (Political and Campaign
Activities of Judicial Candidates in Public Elections), 4.3 (Activities of
Candidates for Appointive Judicial Office), and 4.4 (Campaign Committees),
a judge or a judicial candidate* shall not:
(1) act as a leader in, or hold an office in, a political organization;*
(2) make speeches on behalf of a political organization or nonjudicial candidate;
(3) publicly endorse or oppose a nonjudicial candidate for any public
office, except for participation in a precinct caucus limited to
selection of delegates to a nominating convention for the office of
President of the United States pursuant to (5) below.
(4) solicit funds for, pay an assessment to, or make a contribution* to a
political organization or a nonjudicial candidate for public office;
(5) publicly identify himself or herself as a member or a candidate of a
political organization, except
(a) as required to vote, or
(b) for participation in a precinct caucus limited to selection of delegates
to a nominating convention for the office of President of the United States.
(6) [Reserved]
(7) personally solicit* or accept campaign contributions other than
through a campaign committee authorized by Rule 4.4, except for members
of the judge's family or individuals who have agreed to serve on the
campaign committee authorized by Rule 4.4 and subject to the
requirements for campaign committees in Rule 4.4(B).
(8) use or permit the use of campaign contributions for the private
benefit of the judge, the candidate, or others except as permitted by law;
(9) use court staff, facilities, or other court resources in a campaign
for judicial office except as permitted by law;
(10) knowingly,* or with reckless disregard for the truth, make any
false or misleading statement;
(11) make any statement that would reasonably be expected to affect the
outcome or impair the fairness of a matter pending* or impending* in any court; or
(12) in connection with cases, controversies, or issues that are likely to
come before the court, make pledges, promises, or commitments that are inconsistent
with the impartial* performance of the adjudicative duties of judicial office.
(B) A judge or judicial candidate shall take reasonable measures to ensure
that other persons do not undertake, on behalf of the judge or judicial
candidate, any activities prohibited under paragraph (A).
COMMENT
GENERAL CONSIDERATIONS
[1] Even when subject to public election, a judge plays a role different
from that of a legislator or executive branch official. Rather than making
decisions based upon the expressed views or preferences of the electorate,
a judge makes decisions based upon the law and the facts of every case.
Therefore, in furtherance of this interest, judges and judicial candidates
must, to the greatest extent possible, be free and appear to be free from
political influence and political pressure. This Canon imposes narrowly
tailored restrictions upon the political and campaign activities of all
judges and judicial candidates, taking into account the various methods of
selecting judges.
[2] When a person becomes a judicial candidate, this Canon becomes
applicable to his or her conduct.
PARTICIPATION IN POLITICAL ACTIVITIES
[3] Public confidence in the independence and impartiality of the
judiciary is eroded if judges or judicial candidates are perceived to be
subject to political influence. Therefore, they are prohibited by
paragraph (A)(1) from assuming leadership roles in political organizations.
[4] Paragraphs (A)(2) and (A)(3) prohibit judges and judicial candidates from
making speeches on behalf of political organizations or publicly endorsing
or opposing candidates for nonjudicial public office, respectively, to
prevent them from abusing the prestige of judicial office to advance the
interests of others. See Rule 1.3. These Rules do not prohibit candidates
from campaigning on their own behalf, or from endorsing or opposing
candidates for judicial office. See Rule 4.2(B)(2).
[5] Although members of the families of judges and judicial candidates are
free to engage in their own political activity, including running for
public office, there is no "family exception" to the prohibition in
paragraph (A)(3) against a judge or judicial candidate publicly endorsing
nonjudicial candidates for public office. A judge or judicial candidate
must not become involved in, or publicly associated with, a family member's
political activity or campaign for public office. To avoid public
misunderstanding, judges and judicial candidates should take, and should
urge members of their families to take, reasonable steps to avoid any
implication that they are using the prestige of the their judicial office
to endorse any family member's candidacy or other political activity.
[6] Judges and judicial candidates retain the right to participate in the
political process as voters in both primary and general elections. For
purposes of this Canon, participation in a caucus-type election procedure
does not constitute public support for or endorsement of a political
organization or candidate, is not prohibited by paragraphs (A)(2) or (A)(3)
and is allowed by Paragraphs (A)(2) and (A)(5). Because Washington uses a
caucus system for selection of delegates to the nominating conventions of
the major political parties for the office of President of the United
States, precluding judges and judicial candidates from participating in
these caucuses would eliminate their ability to participate in the
selection process for Presidential nominations. Accordingly, Paragraph
(A)(3) and (5) allows judges and judicial candidates to participate in
precinct caucuses, limited to selection of delegates to a nominating
convention for the office of President of the United States. This narrowly
tailored exception from the general rule is provided for because of the
unique system used in Washington for nomination of Presidential candidates.
If a judge or a judicial candidate participates in a precinct caucus, such
person must limit participation to selection of delegates for various candidates.
STATEMENTS AND COMMENTS MADE DURING A CAMPAIGN FOR JUDICIAL OFFICE
[7] Judicial candidates must be scrupulously fair and accurate in all
statements made by them and by their campaign committees. Paragraph
(A)(10) obligates candidates and their committees to refrain from making
statements that are false or misleading, or that omit facts necessary to
make the communication considered as a whole not materially misleading.
[8] Judicial candidates are sometimes the subject of false, misleading, or
unfair allegations made by opposing candidates, third parties, or the
media. For example, false or misleading statements might be made regarding
the identity, present position, experience, qualifications, or judicial
rulings of a candidate. In other situations, false or misleading
allegations may be made that bear upon a candidate's integrity or fitness
for judicial office. As long as the candidate does not violate paragraphs
(A)(10), (A)(11), or (A)(12), the candidate may make a factually accurate
public response. In addition, when an independent third party has made
unwarranted attacks on a candidate's opponent, the candidate may disavow
the attacks, and request the third party to cease and desist.
[9] Subject to paragraph (A)(11), a judicial candidate is permitted to
respond directly to false, misleading, or unfair allegations made against
him or her during a campaign, although it is preferable for someone else to
respond if the allegations relate to a pending case.
[10] Paragraph (A)(11) prohibits judicial candidates from making comments
that might impair the fairness of pending or impending judicial
proceedings. This provision does not restrict arguments or statements to
the court or jury by a lawyer who is a judicial candidate, or rulings,
statements, or instructions by a judge that may appropriately affect the
outcome of a matter.
PLEDGES, PROMISES, OR COMMITMENTS INCONSISTENT WITH IMPARTIAL PERFORMANCE OF
THE ADJUDICATIVE DUTIES OF JUDICIAL OFFICE
[11] The role of a judge is different from that of a legislator or
executive branch official, even when the judge is subject to public
election. Campaigns for judicial office must be conducted differently from
campaigns for other offices. The narrowly drafted restrictions upon
political and campaign activities of judicial candidates provided in Canon
4 allow candidates to conduct campaigns that provide voters with sufficient
information to permit them to distinguish between candidates and make
informed electoral choices.
[12] Paragraph (A)(12) makes applicable to both judges and judicial candidates
the prohibition that applies to judges in Rule 2.10(B), relating to
pledges, promises, or commitments that are inconsistent with the impartial
performance of the adjudicative duties of judicial office.
[13] The making of a pledge, promise, or commitment is not dependent upon,
or limited to, the use of any specific words or phrases; instead, the
totality of the statement must be examined to determine if a reasonable
person would believe that the candidate for judicial office has
specifically undertaken to reach a particular result. Pledges, promises,
or commitments must be contrasted with statements or announcements of
personal views on legal, political, or other issues, which are not
prohibited. When making such statements, a judge should acknowledge the
overarching judicial obligation to apply and uphold the law, without regard
to his or her personal views.
[14] A judicial candidate may make campaign promises related to judicial
organization, administration, and court management, such as a promise to
dispose of a backlog of cases, start court sessions on time, or avoid
favoritism in appointments and hiring. A candidate may also pledge to take
action outside the courtroom, such as working toward an improved jury
selection system, or advocating for more funds to improve the physical
plant and amenities of the courthouse.
[15] Judicial candidates may receive questionnaires or requests for
interviews from the media and from issue advocacy or other community
organizations that seek to learn their views on disputed or controversial
legal or political issues. Paragraph (A)(12) does not specifically address
judicial responses to such inquiries. Depending upon the wording and
format of such questionnaires, candidates' responses might be viewed as
pledges, promises, or commitments to perform the adjudicative duties of
office other than in an impartial way. To avoid violating paragraph
(A)(12), therefore, candidates who respond to media and other inquiries
should also give assurances that they will keep an open mind and will carry
out their adjudicative duties faithfully and impartially if elected.
Candidates who do respond to questionnaires should post the questionnaire
and their substantive answers so they are accessible to the general public.
Candidates who do not respond may state their reasons for not responding,
such as the danger that answering might be perceived by a reasonable person
as undermining a successful candidate's independence or impartiality, or
that it might lead to frequent disqualification. See Rule 2.11.
PERSONAL SOLICITATION OF CAMPAIGN FUNDS
[16] Judicial candidates should be particularly cautious in regard to
personal solicitation of campaign funds. This can be perceived as being
coercive and an abuse of judicial office. Accordingly, a general
prohibition on personal solicitation is retained with a narrowly tailored
exception contained in Paragraph (A)(7) for members of the judge's family
and those who have agreed to serve on the judge's campaign committee.
These types of individuals generally have a close personal relationship to
the judicial candidate and therefore the concerns of coercion or abuse of
judicial office are greatly diminished. Judicial candidates should not use
this limited exception as a basis for attempting to skirt the general
prohibition against solicitation of campaign contributions.
RULE 4.2
Political and Campaign Activities of Judicial Candidates in Public Elections
(A) A judicial candidate* in a nonpartisan, public election* shall:
(1) Act at all times in a manner consistent with the independence,*
integrity,* and impartiality* of the judiciary;
(2) comply with all applicable election, election campaign, and election
campaign fund-raising laws and regulations of this jurisdiction;
(3) review and approve the content of all campaign statements and
materials produced by the candidate or his or her campaign committee, as
authorized by Rule 4.4, before their dissemination; and
(4) take reasonable measures to ensure that other persons do not undertake
on behalf of the candidate activities, other than those described in
Rule 4.4, that the candidate is prohibited from doing by Rule 4.1.
(B) A candidate for elective judicial office may:
(1) establish a campaign committee pursuant to the provisions of Rule 4.4;
(2) speak on behalf of his or her candidacy through any medium, including
but not limited to advertisements, websites, or other campaign literature;
(3) seek, accept, or use endorsements from any person or organization.
COMMENT
[1] Paragraphs (B) permits judicial candidates in public elections to engage in
some political and campaign activities otherwise prohibited by Rule 4.1.
[2] Despite paragraph (B), judicial candidates for public election remain
subject to many of the provisions of Rule 4.1. For example, a candidate
continues to be prohibited from soliciting funds for a political
organization, knowingly making false or misleading statements during a
campaign, or making certain promises, pledges, or commitments related to
future adjudicative duties. See Rule 4.1(A), paragraphs (4), (10), and (12).
[3] Judicial candidates are permitted to attend or purchase tickets for
dinners and other events sponsored by political organizations on behalf of
their own candidacy or that of another judicial candidate.
[4] In endorsing or opposing another candidate for judicial office, a
judicial candidate must abide by the same rules governing campaign conduct
and speech as apply to the candidate's own campaign.
[5] Although judicial candidates in nonpartisan public elections are
prohibited from running on a ticket or slate associated with a political
organization, they may group themselves into slates or other alliances to
conduct their campaigns more effectively.
RULE 4.3
Activities of Candidates for Appointive Judicial Office
A candidate for appointment to judicial office may:
(A) communicate with the appointing or confirming authority, including any
selection, screening, or nominating commission or similar agency; and
(B) seek endorsements for the appointment from any person or organization.
COMMENT
[1] When seeking support or endorsement, or when communicating directly
with an appointing or confirming authority, a candidate for appointive
judicial office must not make any pledges, promises, or commitments that
are inconsistent with the impartial performance of the adjudicative duties
of the office. See Rule 4.1(A)(12).
RULE 4.4
Campaign Committees
(A) A judicial candidate* subject to public election* may establish a campaign
committee to manage and conduct a campaign for the candidate, subject to
the provisions of this Code. The candidate is responsible for ensuring
that his or her campaign committee complies with applicable provisions of
this Code and other applicable law.*
(B) A judicial candidate subject to public election shall direct his or her
campaign committee:
(1) to solicit and accept only such campaign contributions* as are
reasonable, in any event not to exceed, in the aggregate amount allowed
as provided for by law;
(2) not to solicit contributions for a candidate's current campaign more
than 120 days before the date when filing for that office is first
permitted and may accept contributions after the election only as
permitted by law; and
(3) to comply with all applicable statutory requirements for disclosure
and divestiture of campaign contributions, and to file with the Public
Disclosure Commission all reports as required by law.
COMMENT
[1] Judicial candidates are generally prohibited from personally soliciting
campaign contributions or personally accepting campaign contributions. See
Rule 4.1(A)(7). This Rule recognizes that judicial candidates must raise
campaign funds to support their candidacies, and permits candidates, other
than candidates for appointive judicial office, to establish campaign
committees to solicit and accept reasonable financial contributions or in-
kind contributions.
[2] Campaign committees may solicit and accept campaign contributions, manage
the expenditure of campaign funds, and generally conduct campaigns.
Candidates are responsible for compliance with the requirements of election
law and other applicable law, and for the activities of their campaign committees.
RULE 4.5
Activities of Judges Who Become Candidates for Nonjudicial Office
(A) Upon becoming a candidate for a nonjudicial elective office, a judge shall
resign from judicial office, unless permitted by law* to continue to hold
judicial office.
(B) Upon becoming a candidate for a nonjudicial appointive office, a judge is
not required to resign from judicial office, provided that the judge
complies with the other provisions of this Code.
COMMENT
[1] In campaigns for nonjudicial elective public office, candidates may
make pledges, promises, or commitments related to positions they would take
and ways they would act if elected to office. Although appropriate in
nonjudicial campaigns, this manner of campaigning is inconsistent with the
role of a judge, who must remain fair and impartial to all who come before
him or her. The potential for misuse of the judicial office, and the
political promises that the judge would be compelled to make in the course
of campaigning for nonjudicial elective office, together dictate that a
judge who wishes to run for such an office must resign upon becoming a candidate.
[2] The "resign to run" rule set forth in paragraph (A) ensures that a
judge cannot use the judicial office to promote his or her candidacy, and
prevents post-campaign retaliation from the judge in the event the judge is
defeated in the election. When a judge is seeking appointive nonjudicial
office, however, the dangers are not sufficient to warrant imposing the
"resign to run" rule.
[Adopted September 9, 2010; effective January 1, 2011]
DISCIPLINE RULES FOR JUDGES (DRJ)
TABLE OF RULES
Rule
1 Scope of Rules; Parties
2 Initiating Supreme Court Consideration
3 Contesting Recommendation
4 Record on Review
5 Briefs
6 Hearing
7 Additional Evidence or Findings--Remand
8 Motion
9 Decision and Reconsideration
10 Effect of Discipline
11 Reinstatement of Eligibility To Hold Judicial Office
12 Informal Admonishment or Reprimand by Commission
13 Substitute Panel
14 Supplemental Provisions
RULE 1
SCOPE OF RULES; PARTIES
(a) Supreme Court Consideration. A decision of the Judicial
Qualifications Commission that recommends the discipline or retirement of a
judge or justice (hereafter "judge") or that recommends that a judge should
or should not be reinstated to eligibility to hold judicial office will be
considered by the Supreme Court in the manner provided by these rules.
(b) Judicial Qualifications Commission. The proceedings of the Judicial
Qualifications Commission (hereafter "commission") are governed by rules
adopted by the commission.
(c) Parties. The only parties to a proceeding under these rules are the
commission and the judge who is the subject of the commission
recommendation of discipline or retirement.
(d) Discipline. As used in these rules, "discipline" includes
admonishment, reprimand, censure, suspension, and removal from office, but
does not include admonishment or reprimand agreed to by the judge as
provided in rule 12.
Comment
Section (a). The Supreme Court may only consider a Judicial
Qualifications Commission recommendation of discipline or retirement.
Const. art. 4, subsection 31 (amend. 71). The word "judge" will be used
throughout the rules rather than the terms "judge or justice" found in the
constitution.
Section (b). The commission determines its own rules for proceedings
before it. Const. art. 4, subsection 31 (amend. 71).
Section (c). Only the commission and the judge will be parties to
Supreme Court proceedings.
Section (d). Rule 12 authorizes the commission to informally admonish
or reprimand a judge without referring the matter to the Supreme Court. The
word "discipline" used throughout these rules does not include this
informal admonishment or reprimand.
[Effective May 14, 1982]
RULE 2
INITIATING SUPREME COURT CONSIDERATION
(a) Generally. Decisions of the commission recommending to the Supreme
Court that a judge should be disciplined or retired shall be in writing.
The commission shall serve on the judge a copy of its decision recommending
that the Supreme Court discipline or retire the judge. Unless a matter is
disposed of under rule 12, the commission shall file a copy of its decision
with the Supreme Court when the commissions decision is final under the
rules of the commission. The commission shall serve notice on the judge of
the date the decision has been filed with the Supreme Court.
(b) Time for Filing. The written decision of the commission shall
specify the time period in which the judge may file a notice of contest
under rule 3. The period may not be shorter than 7 days nor longer than 28
days after the date of service on the judge of notice that the decision has
been filed with the Supreme Court.
Comment
Section (a). The commissions recommendation to the Supreme Court must
be in writing. The rule does not prohibit the commission from giving the
judge a proposed recommendation to determine if discipline can be imposed
by agreement under rule 12. The rule also accommodates a process for
reconsideration by the commission before filing a recommendation with the
Supreme Court.
Section (b). This section delegates to the commission the
responsibility of determining how much time should be allowed for the
filing of a notice of contest. The commission is in the best position to
know whether the particular case requires prompt action or may be handled
in a manner closely approximating the normal time limits for an appeal to
the Supreme Court.
[Effective May 14, 1982]
RULE 3
CONTESTING RECOMMENDATION
(a) Generally. A judge who seeks to contest a recommendation of
discipline or retirement must file a notice of contest with the Supreme
Court and the commission. The notice must be filed within the time period
specified in the decision of the commission as provided in rule 2(b).
(b) Form of Notice. The notice of contest must (1) be titled a notice
of contest, (2) describe the portions of the recommendation of the
commission that the judge wishes to contest, and (3) name the judge seeking
to contest the recommendation. The notice must be signed by the judge or by
counsel. The name, address, and telephone number of the lawyer for any
party represented by counsel should be placed on the notice. The residence
address and telephone number of the judge seeking to contest the
recommendation should also be included on the notice.
Comment
Section (a). The judge who wishes to contest a commission
recommendation must file a notice of contest. The time period for filing a
notice of contest is determined by the commission. See rule 2(b).
[Effective May 14, 1982]
RULE 4
RECORD ON REVIEW
(a) Transcription of Proceedings. Except as provided in section (b),
upon receipt of a timely filed notice of contest, the commission shall at
its own expense transcribe those portions of the record of the proceedings
involving those charges upon which the recommendation of the commission is
based. The transcription of the record and copies of relevant material
filed with the commission shall be forwarded by the commission to the judge
within the time authorized by the Supreme Court. Any objections relating to
the accuracy and content of the record must be made within 14 days after
service of the record on the judge. Objections shall be decided in
accordance with the rules of the commission. The commission shall forward
the record to the Supreme Court after objections are determined by the
commission or, in the absence of objection, after the time for objection
has expired.
(b) Agreed Record in Contested Proceedings. The commission and the
judge may agree to a record in contested proceedings different from that
required by section (a). The agreed record shall contain sufficient
material to permit the Supreme Court to consider the decision of the
commission.
(c) Uncontested Proceedings. If the judge has not timely filed a notice
of contest, the record shall consist of the decision of the commission and
any other portions of the proceeding which the Supreme Court deems relevant
for its consideration.
Comment
Section (a). The rule provides that the commission will prepare the
record in a contested proceeding. The commission will only need to
transcribe those portions of the proceedings which are relevant to its
recommendation. Thus, if the judge was originally charged with five
different violations of the Code of Judicial Conduct and the commission
recommends discipline based on only one of those, it would only need to
transcribe the portions of the proceedings relevant to the charge actually
found. The commission will first serve the record on the judge to allow for
its determination of any objections to the record before the matter is
referred to the Supreme Court. If a party is not satisfied with the
commission's determination of the objection, the Supreme Court will decide
the matter.
Section (b). There may be circumstances when the commission and the
judge disagree only over a limited part of the commission recommendation.
In such circumstances, an agreed record is authorized. Cf. RAP 9.4.
Section (c). If a judge does not contest the commission
recommendations, the record will only consist of the commission decision,
supplemented by those portions of the record the Supreme Court deems
relevant.
[Effective May 14, 1982]
RULE 5
BRIEFS
(a) Contested Proceedings. If a notice of contest is timely filed, the
Supreme Court will establish a schedule for filing briefs.
(b) Uncontested Proceedings. If a notice of contest is not timely
filed, briefs will not be required unless requested by the Supreme Court.
(c) Content of Brief. A brief should contain under appropriate headings
and in the order here indicated:
(1) Title Page. A title page, which is the cover.
(2) Tables. A table of contents, with page references, and a table of
cases (alphabetically arranged), statutes, and other authorities cited,
with references to the pages of the brief where cited.
(3) Statement of the Case. A fair statement of the facts and procedure
relevant to the recommended discipline or retirement, without argument.
Reference to the record must be included for each factual statement.
(4) Statement of the Issues. A statement of the issues presented by the
commissions recommendation.
(5) Argument. The argument in support of the relief sought by the party
filing the brief, together with citations to legal authority and references
to relevant parts of the record. The argument may be preceded by a summary.
(6) Conclusion. A short conclusion stating the precise relief sought.
(7) Appendix. An appendix to the brief if deemed appropriate by the
party submitting the brief.
(d) Typing and Filing Brief. Rule of Appellate Procedure 10.4(a) is
applicable to briefs filed under these rules.
(e) Preparation of Brief. Rules of Appellate Procedure 10.4(b), (c),
(e), (f), and (g) are applicable to briefs filed under these rules.
(f) Service of Brief. A party shall serve a copy of the party's brief
on all other parties at or before the time the brief is filed with the
Supreme Court.
(g) Reproduction of Brief. Rule of Appellate Procedure 10.5(a) is
applicable to a brief filed under these rules.
(h) Submission of Improper Brief. Rule of Appellate Procedure 10.7 is
applicable to a brief filed under these rules.
(i) Amicus Curiae Brief. Rule of Appellate Procedure 10.6 is applicable
to an amicus curiae brief filed under these rules.
Comment
Section (a). If a proceeding is contested, the court will set the
schedule for filing briefs. This will allow the court flexibility to
accelerate those cases which should be speedily resolved, while permitting
more time for cases which do not require quick resolution.
Section (b). In an uncontested case, the court will usually decide the
case based on the decision of the commission, which should include the
factual basis for the commissions recommendation. The court may order a
brief from the commission if it concludes additional information is
necessary.
Section (c). This section is adapted from RAP 10.3. Section (i). As a
general rule persons other than parties will not be aware of a discipline
or retirement proceeding, but the court or a party may occasionally find
the need for an amicus curiae brief. This section incorporates the relevant
appellate rule.
[Effective May 14, 1982]
RULE 6
HEARING
(a) Contested Proceedings. If a notice of contest is timely filed, the
Supreme Court will set the date for the hearing with oral argument. Oral
argument will be governed by Title 11 of the Rules of Appellate Procedure.
(b) Uncontested Proceedings. If a notice of contest has not been filed,
oral argument will not be held unless requested by the Supreme Court. The
Supreme Court will nevertheless notify the parties of the date set for the
hearing without oral argument.
Comment
Section (a). Normally the court will hear oral argument only in
contested proceedings. The court will set the date for oral argument at the
same time it sets the briefing schedule. RAP Title 11 governs oral
argument.
Section (b). The court is required to hold a hearing in order to impose
discipline or to retire a judge. Const. art. 4, subsection 31 (amend. 71).
If a proceeding is uncontested, the court will set a date for considering
the commission recommendation, but it will not ordinarily schedule time for
oral argument.
[Effective May 14, 1982]
RULE 7
ADDITIONAL EVIDENCE OR FINDINGS--REMAND
If the Supreme Court on its own motion or on the motion of the
commission or the judge determines that further commission proceedings,
additional evidence, or additional findings will aid the Supreme Court, the
Supreme Court may remand the case to the commission or accept supplementary
materials without remand.
Comment
The Supreme Court may conclude, either on its own or at the instance
of a party, that additional commission proceedings are desirable. The
Supreme Court may decide that the commission should reconsider the
recommendation or obtain additional evidence. This rule permits a remand
for these purposes. The rule also authorizes the Supreme Court to receive
additional evidence. The generally accepted standard of review for Supreme
Court proceedings in the area of judicial misconduct or disability is an
"independent evaluation of the evidence." Hence, the Supreme Court
functions with a broader standard of review than is usual for an appellate
court reviewing a trial court decision. This rule allows maximum
flexibility for supplementing the record. Cf. ABA Standards 7.4-7.6 which
are consistent with this approach.
[Effective May 14, 1982]
RULE 8
MOTION
(a) Relief Available. A party may seek relief, other than a decision
of the case on the merits, by a motion. Rules of Appellate Procedure
17.3(a) and 17.4 are applicable to the motion filed under these rules.
(b) No Oral Argument. Motions will ordinarily be decided without oral
argument.
(c) Motions Decided by Department or Full Court. A motion will be
decided by a department of the Supreme Court or by the full Supreme Court.
[Effective May 14, 1982]
RULE 9
DECISION AND RECONSIDERATION
(a) Decision by Full Court. Hearings on the merits under these rules
will ordinarily be heard by nine justices. A reference to Supreme Court
Justice or Justices in these rules includes regular and pro tempore
justices. A reference to the Supreme Court includes the Supreme Court as
regularly constituted, and the Supreme Court with one or more justices pro
tempore.
(b) Postponement of Decision. The Supreme Court may postpone Supreme
Court proceedings involving a judge if there are other proceedings pending
before the commission involving that same judge.
(c) Decision Imposing Discipline or Retirement. Discipline may be
imposed or retirement ordered only upon the affirmative vote of at least
five Supreme Court Justices. The decision of the court shall be in the form
of a written opinion. The Supreme Court may impose the sanction recommended
by the commission, or any other sanction that the Supreme Court deems
proper.
(d) Finality of Decision. The decision of the Supreme Court becomes
final 14 days after the decision is filed, unless a motion for
reconsideration of the decision is earlier filed. If a timely motion for
reconsideration is filed, the decision of the Supreme Court becomes final
when the motion for reconsideration is denied. If the motion for
reconsideration is granted, the reconsidered decision is final when filed.
The Supreme Court decision is effective when final, unless otherwise
provided by the Supreme Court in its decision.
(e) Motion for Reconsideration. A party seeking reconsideration of a
decision must file a motion for reconsideration within 14 days after the
decision of the Supreme Court has been filed. Rules of Appellate Procedure
12.4(c) through (h) are applicable to proceedings under these rules.
Comment
Section (a). The Supreme Court will ordinarily decide a judicial
discipline case with a full panel of nine justices, drawing from justices
pro tempore if necessary, to create a full panel. The rule does provide,
however, that a decision by less than nine justices will be effective if
the decision is supported by at least five justices.
Section (b). The ABA Standards recommend that the court dispose of all
matters regarding the discipline of a particular judge at one time. ABA
Standards Relating to Judicial Discipline and Retirement, Std. 7.6.
Section (c). The Supreme Court must approve the discipline of a judge
with at least five votes. The court may impose the discipline it determines
is proper.
Section (d). A party has 14 days in which to file a motion for
reconsideration. If no motion is filed, the decision is final at the end of
the 14-day period. If a motion is filed, the decision is final when the
motion is denied or when the reconsidered decision is filed. This parallels
RAP 12.4 which permits only one motion for reconsideration. This paragraph
supersedes RCW 2.04.170 to the extent the statute is in conflict with this
rule.
[Effective May 14, 1982]
RULE 10
EFFECT OF DISCIPLINE
(a) Removal or Retirement. The office of a judge removed or retired by
the Supreme Court becomes vacant when the Supreme Court decision is final.
A judge may not perform any judicial duties thereafter. A judge who is
removed or retired by the Supreme Court is no longer eligible for judicial
office unless the eligibility of the person removed or retired is
reinstated by the Supreme Court.
(b) Suspension. The office of a judge suspended by the Supreme Court
does not become vacant, but the judge may not perform any judicial duties
during the period of suspension, except to the extent the decision of the
Supreme Court provides otherwise.
(c) Effect of Discipline on Salary. A decision imposing discipline
other than removal or retirement will state the effect of the discipline
upon the salary of the judge. Subject to the limitation in rule 9(c), the
Supreme Court may diminish the salary of the judge based only on the
prospective future decrease in the judges workload brought about by the
discipline imposed by the Supreme Court.
Comment
Section (a). The constitution provides that a judicial office becomes
vacant if a judge is removed or retired. Const. art. 4, subsection 31
(amend. 71).
Section (b). If a judge is suspended from office, the implication is
that the office is not vacant. This section makes this clear. The rule does
not allow a judge to perform judicial duties while suspended, except as may
be otherwise authorized by the Supreme Court.
Section (c). The constitution requires the Supreme Court to specify the
effect on the judges salary of discipline other than removal or retirement.
The Supreme Court will not use its power to affect salary as a means of
imposing a fine on the judge, which is not specifically authorized by the
constitution. Statutes control the collateral effect on retirement benefits
of a Supreme Court decision affecting payment of a judge's salary.
[Effective May 14, 1982]
RULE 11
REINSTATEMENT OF ELIGIBILITY TO HOLD
JUDICIAL OFFICE
(a) Petition Filed With Commission. A former judge who has been removed
from office or retired by the Supreme Court may apply to the commission for
reinstatement of eligibility to hold judicial office.
(b) Commission Recommendation. The commission shall determine whether
the applicant has made an affirmative showing that reinstatement will not
be detrimental to the integrity and standing of the judiciary and the
administration of justice, or be contrary to the public interest. The
commission recommendation on the application shall be in writing.
(c) Supreme Court Procedure. A decision recommending that a former
judge should or should not be reinstated to eligibility to hold judicial
office shall be processed under these rules in the same manner as a
decision of the commission recommending the discipline or retirement of a
judge.
Comment
Section (a). The constitution gives to the Supreme Court the authority
to reinstate the eligibility of a removed or retired judge to hold judicial
office. The constitution does not establish standards for reinstatement.
This section provides that the commission will initially consider an
application for reinstatement.
Section (b). This section is modeled after rule 8.6(a) of the
Discipline Rules for Attorneys. The Supreme Court has considered the
question of attorney reinstatement several times. The standard set forth in
the rule along with the developed case law will provide the commission and
the Supreme Court with a basis for determining whether to reinstate a
former judges eligibility.
Section (c). Once a commission recommendation is filed with the Supreme
Court, the procedure will be the same as in cases involving the discipline
or retirement of a judge.
[Effective May 14, 1982]
RULE 12
INFORMAL ADMONISHMENT OR REPRIMAND
BY COMMISSION
(a) Generally. The commission may informally admonish or reprimand a
judge, but only with the agreement of that judge. The agreement shall
provide whether the agreement of the judge to the admonishment or reprimand
may be considered as an admission of misconduct by the judge. In any event,
the conduct causing the admonishment or reprimand may be considered in the
event of a future complaint against the same judge. The agreed admonishment
or reprimand may include an agreement by the judge to desist from certain
prescribed conduct.
(b) Effect of Informal Admonishment or Reprimand. An agreement to
informally admonish or reprimand a judge terminates the complaint or
complaints which gave rise to the admonishment or reprimand, without the
necessity of referring the matter to the Supreme Court.
Comment
Const. art. 4, subsection 31 (amend. 71) gives the Supreme Court the
authority to impose discipline on judges. Arguably, the commission may not
engage in informal dispositions without authority from the Supreme Court.
This rule delegates a small, but important, part of the Supreme Courts
discipline power to the commission. The commission is only empowered to
informally admonish or reprimand a judge. If more serious discipline is
called for, the Supreme Court must impose the discipline. The rule requires
the consent of the judge. The judge will, thereby, be waiving any right to
have discipline imposed only by the Supreme Court. Cf. ABA Standard 6.6.
[Effective May 14, 1982]
RULE 13
SUBSTITUTE PANEL
(a) Generally. If a justice of the Supreme Court is the subject of a
recommendation for discipline or retirement, a substitute panel of nine
judges shall be selected as provided in this rule to serve as justices pro
tempore to consider the commission recommendation.
(b) Selection of Justices Pro Tempore. The presiding chief judge of
the Court of Appeals shall be one member of the substitute panel and shall
be the chief justice pro tempore unless the judge disqualifies himself or
herself or is otherwise disqualified by section (c). The clerk of the
Supreme Court shall select the balance of the justices pro tempore by lot
from all remaining active Court of Appeals judges. If there are fewer than
nine judges of the Court of Appeals who are not disqualified, the panel
shall be completed by the clerk by selecting by lot from the active
superior court judges until a full panel of nine justices pro tempore has
been selected.
(c) Disqualification. A judge may disqualify himself or herself
without cause. No judge who has served as a master or a member of the
commission in the particular proceeding or who is otherwise disqualified
may serve on the substitute panel. No judge against whom a formal charge is
pending before the commission shall serve on the panel.
(d) Chief Justice Pro Tempore. If the presiding chief judge of the
Court of Appeals is not a member of the substitute panel, the substitute
panel shall select one of its members to serve as chief justice pro
tempore.
[Effective May 14, 1982]
RULE DRJ 14
SUPPLEMENTAL PROVISIONS
(a) Service and Filing With the Court. Rule of Appellate
Procedure 18.5 governs service, proof of service, and filing of
papers under these rules.
(b) Computation of Time. Rule of Appellate Procedure 18.6
applies to the computation of time under these rules.
(c) Waiver of Rules and Sanctions for Violation of Rules.
Rules of Appellate Procedure 18.8(a) and (d) and 18.9(a) are
applicable to proceedings under these rules.
(d) Applicability of RAP. Upon order of the Supreme Court,
the Rules of Appellate Procedure may be made applicable to any
part of the proceeding involving the discipline or retirement of
a judge not governed by these rules.
(e) Confidential and Privileged Communications. Confidential
communication between a judicial officer and peer Counselors of
the Judicial Assistance Committee of the Superior Court Judges'
Association or the district and Municipal Court Judges'
Association or the LAP (Lawyers Assistance Program of the
Washington State Bar Association) shall be privileged against
disclosure without the consent of the judicial officer to the
same extent and subject to the same conditions as confidential
communication between a client and psychologist.
[Adopted effective May 14, 1982; November 25, 2003.]
BOARD FOR JUDICIAL ADMINISTRATION RULES (BJAR)
TABLE OF RULES
Rule
Preamble
1 Board for Judicial Administration
2 Composition
3 Operation
4 Duties
5 Staff
BJAR
PREAMBLE
The power of the judiciary to make administrative policy
governing its operations is an essential element of its
constitutional status as an equal branch of government. The
Board for Judicial Administration is established to adopt
policies and provide strategic leadership for the courts at
large, enabling the judiciary to speak with one voice.
[Adopted effective January 25, 2000.]
BJAR 1
BOARD FOR JUDICIAL ADMINISTRATION
The Board for Judicial Administration is created to provide
effective leadership to the state courts and to develop policy to
enhance the administration of the court system in Washington
State. Judges serving on the Board for Judicial Administration
shall pursue the best interests of the judiciary at large.
[Amended effective October 29, 1993; January 25, 2000.]
BJAR 2
COMPOSITION
(a) Membership. The Board for Judicial Administration shall consist of judges
from all levels of court selected for their demonstrated interest in and
commitment to judicial administration and court improvement. The Board
shall consist of five members from the appellate courts (two from the
Supreme Court, one of whom shall be the Chief Justice, and one from each
division of the Court of Appeals), five members from the superior courts,
one of whom shall be the President of the Superior Court Judges'
Association, five members of the courts of limited jurisdiction, one of
whom shall be the President of the District and Municipal Court Judges'
Association, two members of the Washington State Bar Association (non-voting)
and the Administrator for the Courts (non-voting).
(b) Selection. Members shall be selected based upon a process established by
their respective associations or court level which considers demonstrated
commitment to improving the courts, racial and gender diversity as well as
geographic and caseload differences.
(c) Terms of Office.
(1) Of the members first appointed, one justice of the Supreme Court
shall be appointed for a two-year term; one judge from each of the
other levels of court for a four-year term; one judge from each of
the other levels of court and one Washington State Bar Association
member for a three-year term; one judge from the other levels of
court and one Washington State Bar Association member for a two-year
term; and one judge from each level of trial court for a one-year
term. Provided that the terms of the District and Municipal Court
Judges' Association members whose terms begin on July 1, 2010 and
July 1, 2011 shall be for two years and the terms of the Superior
Court Judges' Association members whose terms begin on July 1, 2010
and July 1, 2013 shall be for two years each. Thereafter, voting
members shall serve four-year terms and the Washington State Bar
Association members for three-year terms commencing annually on June 1.
The Chief Justice, the President Judges and the Administrator for
the Courts shall serve during tenure.
(2) Members serving on the BJA shall be granted equivalent pro tempore time.
[Amended effective October 29, 1993; February 16, 1995; January 25, 2000; June 30, 2010.]
BJAR 3
OPERATION
(a) Leadership. The Board for Judicial Administration
shall be chaired by the Chief Justice of the Washington
Supreme Court in conjunction with a Member Chair who shall
be elected by the Board. The duties of the Chief Justice
Chair and the Member Chair shall be clearly articulated in
the by-laws. The Member Chair shall serve as chair of the
Long-range Planning Committee. Meetings of the Board may be
convened by either chair and held at least bimonthly. Any
Board member may submit issues for the meeting agenda.
(b) Committees. Ad hoc and standing committees may be
appointed for the purpose of facilitating the work of the
Board. Non-judicial committee members shall participate in
non-voting advisory capacity only.
(1) The Board shall appoint at least three standing
committees: Long-range Planning, Core Missions/Best
Practices and Legislative. Other committees may be convened
as determined by the Board.
(2) The Chief Justice and the Member Chair shall
nominate for the Board's approval the chairs and members of
the committees. Committee membership may include citizens,
experts from the private sector, members of the legal
community, legislators, clerks and court administrators.
(c) Voting. All decisions of the Board shall be made by
majority vote of those present and voting provided there is
one affirmative vote from each level of court. Eight voting
members will constitute a quorum provided at least one judge
from each level of court is present. Telephonic or
electronic attendance shall be permitted but no member shall
be allowed to cast a vote by proxy.
[Adopted effective January 25, 2000.]
BJAR 4
DUTIES
(a) The Board shall establish a long-range plan for the
judiciary;
(b) The Board shall continually review the core missions and
best practices of the courts;
(c) The Board shall develop a funding strategy for the
judiciary consistent with the long-range plan and RCW 43.135.060;
(d) The Board shall assess the adequacy of resources
necessary for the operation of an independent judiciary;
(e) The Board shall speak on behalf of the judicial branch
of government and develop statewide policy to enhance the
operation of the state court system; and
(f) The Board shall have the authority to conduct research
or create study groups for the purpose of improving the courts.
[Adopted effective January 25, 2000.]
BJAR 5
STAFF
Staff for the Board for Judicial Administration shall be
provided by the Administrator for the Courts.
[Adopted effective January 25, 2000.]
RULES OF PROFESSIONAL CONDUCT (RPC)
Table of Rules
Fundamental Principles of Professional Conduct
PREAMBLE AND SCOPE
Preamble: A Lawyer's Responsibilities
Scope
Rule
1.0 Terminology
TITLE 1 CLIENT-LAWYER RELATIONSHIP
1.1 Competence
1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
1.3 Diligence
1.4 Communication
1.5 Fees
1.6 Confidentiality of Information
1.7 Conflict of Interest: Current Clients
1.8 Conflict of Interest: Current Clients: Specific Rules
1.9 Duties to Former Client
1.10 Imputation of Conflicts of Interest: General Rule
1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees
1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
1.13 Organization as Client
1.14 Client with Diminished Capacity
1.15A Safeguarding Property
1.15B Required Trust Account Records
1.16 Declining or Terminating Representation
1.17 Sale of Law Practice
1.18 Duties of Prospective Client
TITLE 2 COUNSELOR
2.1 Advisor
2.2 (Deleted)
2.3 Evaluation for Use by Third Persons
2.4 Lawyer Serving as Third-Party Neutral
TITLE 3 ADVOCATE
3.1 Meritorious Claims and Contentions
3.2 Expediting Litigation
3.3 Candor Toward the Tribunal
3.4 Fairness to Opposing Party and Counsel
3.5 Impartiality and Decorum of the Tribunal
3.6 Trial Publicity
3.7 Lawyer as Witness
3.8 Special Responsibilities of a Prosecutor
3.9 Advocate in Nonadjudicative Proceedings
TITLE 4 TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
4.1 Truthfulness in Statements to Others
4.2 Communication With Person Represented by Counsel
4.3 Dealing With Unrepresented Person
4.4 Respect for Rights of Third Person
TITLE 5 LAW FIRMS AND ASSOCIATIONS
5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
5.2 Responsibilities of a Subordinate Lawyer
5.3 Responsibilities Regarding Nonlawyer Assistants
5.4 Professional Independence of a Lawyer
5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law
5.6 Restrictions on Right to Practice
5.7 Responsibilities Regarding Law-Related Services
5.8 Misconduct Involving Disbarred, Suspended, Resigned, and Inactive Lawyers
TITLE 6 PUBLIC SERVICE
6.1 Pro Bono Publico Service
6.2 Accepting Appointments
6.3 Membership in Legal Services Organization
6.4 Law Reform Activities Affecting Client Interests
6.5 Nonprofit and Court-Annexed Limited Legal Service Programs
TITLE 7 INFORMATION ABOUT LEGAL SERVICES
7.1 Communications Concerning a Lawyers Services
7.2 Advertising
7.3 Direct Contact with Prospective Clients
7.4 Communication of Fields of Practice and Specialization
7.5 Firm Names and Letterheads
7.6 Political Contributions to Obtain Government Legal Engagements or Appointments by Judges
TITLE 8 MAINTAINING THE INTEGRITY OF THE PROFESSION
8.1 Bar Admission and Disciplinary Matters
8.2 Judicial and Legal Officials
8.3 Reporting Professional Misconduct
8.4 Misconduct
8.5 Disciplinary Authority; Choice of Law
Appendix: Guidelines for Applying Rule of 3.6
Fundamental Principles Of Professional Conduct 1
The continued existence of a free and democratic society depends
upon recognition of the concept that justice is based upon the rule of
law grounded in respect for the dignity of the individual and the
capacity through reason for enlightened self-government. Law so
grounded makes justice possible, for only through such law does the
dignity of the individual attain respect and protection. Without it,
individual rights become subject to unrestrained power, respect for law
is destroyed, and rational self-government is impossible.
Lawyers, as guardians of the law, play a vital role in the
preservation of society. The fulfillment of this role requires an
understanding by lawyers of their relationship with and function in our
legal system. A consequent obligation of lawyers is to maintain the
highest standards of ethical conduct.
In fulfilling professional responsibilities, a lawyer necessarily
assumes various roles that require the performance of many difficult
tasks. Not every situation which a lawyer may encounter can be
foreseen, but fundamental ethical principles are always present as
guidelines. Within the framework of these principles, a lawyer must
with courage and foresight be able and ready to shape the body of the
law to the ever-changing relationships of society.
The Rules of Professional Conduct point the way to the aspiring
lawyer and provide standards by which to judge the transgressor. Each
lawyer must find within his or her own conscience the touchstone
against which to test the extent to which his or her actions should
rise above minimum standards. But in the last analysis it is the desire
for the respect and confidence of the members of the legal profession
and the society which the lawyer serves that should provide to a lawyer
the incentive for the highest possible degree of ethical conduct. The
possible loss of that respect and confidence is the ultimate sanction.
So long as its practitioners are guided by these principles, the law
will continue to be a noble profession. This is its greatness and its
strength, which permit of no compromise.
[Amended effective September 1, 2006.]
_______________________________
1 These Fundamental Principles of the Rules of Professional
Conduct are taken from the former Preamble to the Rules of
Professional Conduct as approved and adopted by the Supreme
Court in 1985. Washington lawyers and judges have looked to
the 1985 Preamble as a statement of our overarching
aspiration to faithfully serve the best interests of the
public, the legal system, and the efficient administration
of justice. The former Preamble is preserved here to
inspire lawyers to strive for the highest possible degree of
ethical conduct, and these Fundamental Principles should
inform many of our decisions as lawyers. The Fundamental
Principles do not, however, alter any of the obligations
expressly set forth in the Rules of Professional Conduct,
nor are they intended to affect in any way the manner in
which the Rules are to be interpreted or applied.
PREAMBLE AND SCOPE
PREAMBLE:
A LAWYER'S RESPONSIBILITIES
[1] [Washington revision] A lawyer, as a member of the legal profession,
is a representative of clients, an officer of the court and a public
citizen having special responsibility for the quality of justice.
[2] [Washington revision] As a representative of clients, a lawyer
performs various functions. As advisory, a lawyer provides a client with
an informed understanding of the client's legal rights and obligations and
explains their practical implications. As advocate, a lawyer
conscientiously and ardently asserts the clients position under the rules
of the adversary system. As negotiator, a lawyer seeks a result
advantageous to the client but consistent with requirements of honest
dealings with others. As an evaluator, a lawyer acts by examining a
client's legal affairs and reporting about them to the client or to
others.
[3] In addition to these representational functions, a lawyer may serve
as a third-party neutral, a nonrepresentational role helping the parties
to resolve a dispute or other matter. Some of these Rules apply directly
to lawyers who are or have served as third-party neutrals. See, e.g.,
Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who
are not active in the practice of law or to practicing lawyers even when
they are acting in a nonprofessional capacity. For example, a lawyer who
commits fraud in the conduct of a business is subject to discipline for
engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation. See Rule 8.4.
[4] [Washington revision] In all professional functions a lawyer should
be competent, prompt and diligent. A lawyer should maintain communication
with a client concerning the representation. A lawyer should keep in
confidence information relating to representation of a client except so
far as disclosure is required or permitted by the Rules of Professional Conduct.
[5] A lawyer's conduct should conform to the requirements of the law,
both in professional service to clients and in the lawyer's business and
personal affairs. A lawyer should use the law's procedures only for
legitimate purposes and not to harass or intimidate others. A lawyer
should demonstrate respect for the legal system and for those who serve
it, including judges, other lawyers and public officials. While it is a
lawyer's duty, when necessary, to challenge the rectitude of official
action, it is also a lawyer's duty to uphold legal process.
[6] As a public citizen, a lawyer should seek improvement of the law,
access to the legal system, the administration of justice and the quality
of service rendered by the legal profession. As a member of a learned
profession, a lawyer should cultivate knowledge of the law beyond its use
for clients, employ that knowledge in reform of the law and work to
strengthen legal education. In addition, a lawyer should further the
public's understanding of and confidence in the rule of law and the
justice system because legal institutions in a constitutional democracy
depend on popular participation and support to maintain their authority. A
lawyer should be mindful of deficiencies in the administration of justice
and of the fact that the poor, and sometimes persons who are not poor,
cannot afford adequate legal assistance. Therefore, all lawyers should
devote professional time and resources and use civic influence to ensure
equal access to our system of justice for all those who because of
economic or social barriers cannot afford or secure adequate legal
counsel. A lawyer should aid the legal profession in pursuing these
objectives and should help the bar regulate itself in the public interest.
[7] Many of a lawyer's professional responsibilities are prescribed in
the Rules of Professional Conduct, as well as substantive and procedural
law. However, a lawyer is also guided by personal conscience and the
approbation of professional peers. A lawyer should strive to attain the
highest level of skill, to improve the law and the legal profession and to
exemplify the legal profession's ideals of public service.
[8] [Washington revision] A lawyer's responsibilities as a
representative of clients, an officer of the legal system and a public
citizen are usually harmonious. Thus, when an opposing party is well
represented, a lawyer can be a conscientious and ardent advocate on behalf
of a client and at the same time assume that justice is being done. So
also, a lawyer can be sure that preserving client confidences ordinarily
serves the public interest because people are more likely to seek legal
advice, and thereby heed their legal obligations, when they know their
communications will be private.
[9] [Washington revision] In the nature of law practice, however,
conflicting responsibilities are encountered. Virtually all difficult
ethical problems arise from conflict between a lawyer's responsibilities
to clients, to the legal system and to the lawyer's own interest in
remaining an ethical person while earning a satisfactory living. The Rules
of Professional Conduct often prescribe terms for resolving such
conflicts. Within the framework of these Rules, however, many difficult
issues of professional discretion can arise. Such issues must be resolved
through the exercise of sensitive professional and moral judgment guided
by the basic principles underlying the Rules. These principles include the
lawyer's obligation conscientiously and ardently to protect and pursue a
client's legitimate interests, within the bounds of the law, while
maintaining a professional, courteous and civil attitude toward all
persons involved in the legal system.
[10] The legal profession is largely self-governing. Although other
professions also have been granted powers of self-government, the legal
profession is unique in this respect because of the close relationship
between the profession and the processes of government and law
enforcement. This connection is manifested in the fact that ultimate
authority over the legal profession is vested largely in the courts.
[11] To the extent that lawyers meet the obligations of their
professional calling, the occasion for government regulation is obviated.
Self-regulation also helps maintain the legal profession's independence
from government domination. An independent legal profession is an
important force in preserving government under law, for abuse of legal
authority is more readily challenged by a profession whose members are not
dependent on government for the right to practice.
[12] The legal profession's relative autonomy carries with it special
responsibilities of self-government. The profession has a responsibility
to assure that its regulations are conceived in the public interest and
not in furtherance of parochial or self-interested concerns of the bar.
Every lawyer is responsible for observance of the Rules of Professional
Conduct. A lawyer should also aid in securing their observance by other
lawyers. Neglect of these responsibilities compromises the independence of
the profession and the public interest which it serves.
[13] Lawyers play a vital role in the preservation of society. The
fulfillment of this role requires an understanding by lawyers of their
relationship to our legal system. The Rules of Professional Conduct, when
properly applied, serve to define that relationship.
SCOPE
[14] The Rules of Professional Conduct are rules of reason. They should
be interpreted with reference to the purposes of legal representation and
of the law itself. Some of the Rules are imperatives, cast in the terms
"shall" or "shall not." These define proper conduct for purposes of
professional discipline. Others, generally cast in the term "may" are
permissive and define areas under the Rules in which the lawyer has
discretion to exercise professional judgment. No disciplinary action
should be taken when the lawyer chooses not to act or acts within the
bounds of such discretion. Other rules define the nature of relationships
between the lawyer and others. The Rules are thus partly obligatory and
disciplinary and partly constitutive and descriptive in that they define a
lawyer's professional role. Many of the Comments use the term "should."
Comments do not add obligations to the Rules but provide guidance for
practicing in compliance with the Rules.
[15] The Rules presuppose a larger legal context shaping the lawyer's
role. That context includes court rules and statutes relating to matters
of licensure, laws defining specific obligations of lawyers and
substantive and procedural law in general. The Comments are sometimes used
to alert lawyers to their responsibilities under such other law.
[16] Compliance with the Rules, as with all law in an open society,
depends primarily upon understanding and voluntary compliance, secondarily
upon reinforcement by peer and public opinion and finally, when necessary,
upon enforcement through disciplinary proceedings. The Rules do not,
however, exhaust the moral and ethical considerations that should inform a
lawyer, for no worthwhile human activity can be completely defined by
legal rules. The Rules simply provide a framework for the ethical practice
of law.
[17] [Washington revision] For purposes of determining the lawyer's
authority and responsibility, principles of substantive law external to
these Rules determine whether a client-lawyer relationship exists. Most of
the duties flowing from the client-lawyer relationship attach only after
the client-lawyer relationship is formed. But there are some duties, such
as that of confidentiality under Rule 1.6, that may attach when the lawyer
agrees to consider whether a client-lawyer relationship shall be
established. See Rule 1.18 and Washington Comment [11] thereto. Whether a
client-lawyer relationship exists for any specific purpose can depend on
the circumstances and is a question of fact.
[18] Under various legal provisions, including constitutional,
statutory and common law, the responsibilities of government lawyers may
include authority concerning legal matters that ordinarily reposes in the
client in private client-lawyer relationships. For example, a lawyer for a
government agency may have authority on behalf of the government to decide
upon settlement or whether to appeal from an adverse judgment. Such
authority in various respects is generally vested in the attorney general
and the state's attorney in state government, and their federal
counterparts, and the same may be true of other government law officers.
Also, lawyers under the supervision of these officers may be authorized to
represent several government agencies in intragovernmental legal
controversies in circumstances where a private lawyer could not represent
multiple private clients. These Rules do not abrogate any such authority.
[19] Failure to comply with an obligation or prohibition imposed by a
Rule is a basis for invoking the disciplinary process. The Rules
presuppose that disciplinary assessment of a lawyer's conduct will be made
on the basis of the facts and circumstances as they existed at the time of
the conduct in question and in recognition of the fact that a lawyer often
has to act upon uncertain or incomplete evidence of the situation.
Moreover, the Rules presuppose that whether or not discipline should be
imposed for a violation, and the severity of a sanction, depend on all the
circumstances, such as the willfulness and seriousness of the violation,
extenuating factors and whether there have been previous violations.
[20] Violation of a Rule should not itself give rise to a cause of
action against a lawyer nor should it create any presumption in such a
case that a legal duty has been breached. In addition, violation of a Rule
does not necessarily warrant any other nondisciplinary remedy, such as
disqualification of a lawyer in pending litigation. The Rules are designed
to provide guidance to lawyers and to provide a structure for regulating
conduct through disciplinary agencies. They are not designed to be a basis
for civil liability. Furthermore, the purpose of the Rules can be
subverted when they are invoked by opposing parties as procedural weapons.
The fact that a Rule is a just basis for a lawyer's self-assessment, or
for sanctioning a lawyer under the administration of a disciplinary
authority, does not imply that an antagonist in a collateral proceeding or
transaction has standing to seek enforcement of the Rule. Nevertheless,
since the Rules do establish standards of conduct by lawyers, a lawyer's
violation of a Rule may be evidence of breach of the applicable standard
of conduct.
[21] The Comment accompanying each Rule explains and illustrates the
meaning and purpose of the Rule. The Preamble and this note on Scope
provide general orientation. The Comments are intended as guides to
interpretation, but the text of each Rule is authoritative.
Additional Washington Comments (22 - 23)
[22] Nothing in these Rules is intended to change existing Washington
law on the use of the Rules of Professional Conduct in a civil action. See
Hizey v. Carpenter, 119 Wn.2d 251, 830 P.2d 646 (1992).
[23] The structure of these Rules generally parallels the structure of
the American Bar Association's Model Rules of Professional Conduct. The
exceptions to this approach are Rule 1.15A, which varies substantially
from Model Rule 1.15, and Rules 1.15B and 5.8, neither of which is found
in the Model Rules. In other cases, when a provision has been wholly
deleted from the counterpart Model Rule, the deletion is signaled by the
phrase "Reserved." When a provision has been added, it is generally
appended at the end of the Rule or the paragraph in which the variation
appears. Whenever the text of a Comment varies materially from the text of
its counterpart Comment in the Model Rules, the alteration is signaled by
the phrase "Washington revision." Comments that have no counterpart in the
Model Rules are compiled at the end of each Comment section under the
heading "Additional Washington Comment(s)" and are consecutively numbered.
As used herein, the term "former Washington RPC" refers to Washington's
Rules of Professional Conduct (adopted effective September 1, 1985, with
amendments through September 1, 2003). The term "Model Rule(s)" refers to
the 2004 Edition of the American Bar Association's Model Rules of
Professional Conduct.
[Amended effective September 1, 2006.]
RULE 1.0
TERMINOLOGY
(a) "Belief" or "believes" denotes that the person involved actually
supposed the fact in question to be true. A person's belief may be inferred
from circumstances.
(b) "Confirmed in writing," when used in reference to the informed
consent of a person, denotes informed consent that is given in writing by
the person or a writing that a lawyer promptly transmits to the person
confirming an oral informed consent. See paragraph (e) for the definition
of "informed consent." If it is not feasible to obtain or transmit the
writing at the time the person gives informed consent, then the lawyer must
obtain or transmit it within a reasonable time thereafter.
(c) "Firm" or "law firm" denotes a lawyer or lawyers in a law
partnership, professional corporation, sole proprietorship or other
association authorized to practice law; or lawyers employed in a legal
services organization or the legal department of a corporation or other organization.
(d) "Fraud" or "fraudulent" denotes conduct that has a purpose to deceive
and is fraudulent under the substantive or procedural law of the applicable
jurisdiction, except that it is not necessary that anyone has suffered
damages or relied on the misrepresentation or failure to inform.
(e) "Informed consent" denotes the agreement by a person to a proposed
course of conduct after the lawyer has communicated adequate information
and explanation about the material risks of and reasonably available
alternatives to the proposed course of conduct.
(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact
in question. A person's knowledge may be inferred from circumstances.
(g) "Partner" denotes a member of a partnership a shareholder in a law
firm organized as a professional corporation, or a member of an association
authorized to practice law.
(h) "Reasonable" or "reasonably" when used in relation to conduct by a
lawyer denotes the conduct of a reasonably prudent and competent lawyer.
(i) "Reasonable belief" or "reasonably believes" when used in reference
to a lawyer denotes that the lawyer believes the matter in question and
that the circumstances are such that the belief is reasonable.
(j) "Reasonably should know" when used in reference to a lawyer denotes
that a lawyer of reasonable prudence and competence would ascertain the
matter in question.
(k) "Screened" denotes the isolation of a lawyer from any participation
in a matter through the timely imposition of procedures within a firm that
are reasonably adequate under the circumstances to protect information that
the isolated lawyers is obligated to protect under these Rules or other law.
(l) "Substantial" when used in reference to degree or extent denotes a
material matter of clear and weighty importance.
(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration
proceeding or legislative body, administrative agency or other body acting
in an adjudicative capacity. A legislative body, administrative agency or
other body acts in an adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument by a party or parties, will
render a binding legal judgment directly affecting a party's interests in a
particular matter.
(n) "Writing" or "written" denotes a tangible or electronic record of a
communication or representation, including handwriting, typewriting,
printing, photostating, photography, audio or videorecording and e-mail. A
"signed" writing includes an electronic sound, symbol or process attached
to or logically associated with a writing and executed or adopted by a
person with the intent to sign the writing.
Comment
Confirmed in Writing
[1] If it is not feasible to obtain or transmit a written confirmation at
the time the client gives informed consent, then the lawyer must obtain or
transmit it within a reasonable time thereafter. If a lawyer has obtained a
client's informed consent, the lawyer may act in reliance on that consent
so long as it is confirmed in writing within a reasonable time thereafter.
See also Washington Comment [11].
Firm
[2] Whether two or more lawyers constitute a firm within paragraph (c)
can depend on the specific facts. For example, two practitioners who share
office space and occasionally consult or assist each other ordinarily would
not be regarded as constituting a firm. However, if they present themselves
to the public in a way that suggests that they are a firm or conduct
themselves as a firm, they should be regarded as a firm for purposes of the
Rules. The terms of any formal agreement between associated lawyers are
relevant in determining whether they are a firm, as is the fact that they
have mutual access to information concerning the clients they serve.
Furthermore, it is relevant in doubtful cases to consider the underlying
purpose of the Rule that is involved. A group of lawyers could be regarded
as a firm for purposes of the Rule that the same lawyer should not
represent opposing parties in litigation, while it might not be so regarded
for purposes of the Rule that information acquired by one lawyer is
attributed to another.
[3] [Washington revision] With respect to the law department of an
organization, there is ordinarily no question that the members of the
department constitute a firm within the meaning of the Rules of
Professional Conduct. There can be uncertainty, however, as to the identity
of the client. For example, it may not be clear whether the law department
of a corporation represents a subsidiary or an affiliated corporation, as
well as the corporation by which the members of the department are directly
employed. A similar question can arise concerning an unincorporated
association and its local affiliates.
[4] Similar questions can also arise with respect to lawyers in legal aid
and legal services organizations. Depending upon the structure of the
organization, the entire organization or different components of it may
constitute a firm or firms for purposes of these Rules.
See also Washington Comment [12].
Fraud
[5] When used in these Rules, the terms "fraud" or "fraudulent" refer to
conduct that is characterized as such under the substantive or procedural
law of the applicable jurisdiction and has a purpose to deceive. This does
not include merely negligent misrepresentation or negligent failure to
apprise another of relevant information. For purposes of these Rules, it is
not necessary that anyone has suffered damages or relied on the
misrepresentation or failure to inform.
See also Washington Comment [13].
Informed Consent
[6] Many of the Rules of Professional Conduct require the lawyer to
obtain the informed consent of a client or other person (e.g., a former
client or, under certain circumstances, a prospective client) before
accepting or continuing representation or pursuing a course of conduct.
See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to
obtain such consent will vary according to the Rule involved and the
circumstances giving rise to the need to obtain informed consent. The
lawyer must make reasonable efforts to ensure that the client or other
person possesses information reasonably adequate to make an informed
decision. Ordinarily, this will require communication that includes a
disclosure of the facts and circumstances giving rise to the situation, any
explanation reasonably necessary to inform the client or other person of
the material advantages and disadvantages of the proposed course of conduct
and a discussion of the client's or other person's options and
alternatives. In some circumstances it may be appropriate for a lawyer to
advise a client or other person to seek the advice of other counsel. A
lawyer need not inform a client or other person of facts or implications
already known to the client or other person; nevertheless, a lawyer who
does not personally inform the client or other person assumes the risk that
the client or other person is inadequately informed and the consent is
invalid. In determining whether the information and explanation provided
are reasonably adequate, relevant factors include whether the client or
other person is experienced in legal matters generally and in making
decisions of the type involved, and whether the client or other person is
independently represented by other counsel in giving the consent. Normally,
such persons need less information and explanation than others, and
generally a client or other person who is independently represented by
other counsel in giving the consent should be assumed to have given informed consent.
[7] [Washington revision] Obtaining informed consent will usually require
an affirmative response by the client or other person. In general, a lawyer
may not assume consent from a client's or other person's silence. Consent
may be inferred, however, from the conduct of a client or other person who
has reasonably adequate information about the matter. A number of Rules
require that a person's consent be confirmed in writing. See Rules 1.7(b)
and 1.9(a). For a definition of "writing" and "confirmed in writing," see
paragraphs (n) and (b). Rule 1.8(a) requires that a client's consent be
obtained in a writing signed by the client. See also Rule 1.5(c)(1)
(requiring that a contingent fee agreement be "in a writing signed by the
client"). For a definition of "signed," see paragraph (n).
See also Washington Comment [14].
Screened
[8] [Washington revision] This definition applies to situations where
screening of a personally disqualified lawyer is permitted to remove
imputation of a conflict of interest under Rules 1.10, 1.11, 1.12, 1.18, or 6.5.
[9] The purpose of screening is to assure the affected parties that
confidential information known by the personally disqualified lawyer
remains protected. The personally disqualified lawyer should acknowledge
the obligation not to communicate with any of the other lawyers in the firm
with respect to the matter. Similarly, other lawyers in the firm who are
working on the matter should be informed that the screening is in place and
that they may not communicate with the personally disqualified lawyer with
respect to the matter. Additional screening measures that are appropriate
for the particular matter will depend on the circumstances. To implement,
reinforce and remind all affected lawyers of the presence of the screening,
it may be appropriate for the firm to undertake such procedures as a
written undertaking by the screened lawyer to avoid any communication with
other firm personnel and any contact with any firm files or other materials
relating to the matter, written notice and instructions to all other firm
personnel forbidding any communication with the screened lawyer relating to
the matter, denial of access by the screened lawyer to firm files or other
materials relating to the matter and periodic reminders of the screen to
the screened lawyer and all other firm personnel.
[10] In order to be effective, screening measures must be implemented as
soon as practical after a lawyer or law firm knows or reasonably should
know that there is a need for screening.
See also Washington Comment [15].
Additional Washington Comments (11 - 16)
Confirmed in Writing
[11] Informed consent requires that the writing be articulated in a
manner that can be easily understood by the client.
Firm
[12] Although the definition of "firm" or "law firm" in Rule 1.0(c)
differs from the definition set forth in the Terminology section of
Washington's former Rules of Professional Conduct, there is no intent to
change the scope of the definition or to alter existing Washington law on
the application of the Rules of Professional Conduct to lawyers in a
government office.
Fraud
[13] Model Rule 1.0(d) was modified to clarify that the terms "fraud" and
"fraudulent" in the Rules of Professional Conduct do not include an element
of damage or reliance.
Informed Consent
[14] In order for the communication to the client to be adequate it must
be accomplished in a manner that can be easily understood by the client.
Screened
[15] See Rules 1.10 and 6.5 for specific screening requirements under the
circumstances covered by those Rules.
Other
[16] For the scope of the phrase "information relating to the
representation of a client," which is not defined in Rule 1.0,
see Comment [19] to Rule 1.6.
[Amended effective September 1, 2006.]
RPC RULE 1.1
COMPETENCE
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
Comment
Legal Knowledge and Skill
[1] In determining whether a lawyer employs the requisite knowledge and
skill in a particular matter, relevant factors include the relative
complexity and specialized nature of the matter, the lawyer's general
experience, the lawyer's training and experience in the field in question,
the preparation and study the lawyer is able to give the matter and whether
I it is feasible to refer the matter to, or associate or consult with, a
lawyer of established competence in the field in question. In many
instances, the required proficiency is that of a general practitioner.
Expertise in a particular field of law may be required in some circumstances.
[2] A lawyer need not necessarily have special training or prior
experience to handle legal problems of a type with which the lawyer is
unfamiliar. A newly admitted lawyer can be as competent as a practitioner
with long experience. Some important legal skills, such as the analysis of
precedent, the evaluation of evidence and legal drafting, are required in
all legal problems. Perhaps the most fundamental legal skill consists of
determining what kind of legal problems a situation may involve, a skill
that necessarily transcends any particular specialized knowledge. A lawyer
can provide adequate representation in a wholly novel field through
necessary study. Competent representation can also be provided through the
association of a lawyer of established competence in the field in question.
[3] In an emergency a lawyer may give advice or assistance in a matter
in which the lawyer does not have the skill ordinarily required where
referral to or consultation or association with another lawyer would be
impractical. Even in an emergency, however, assistance should be limited to
that reasonably necessary in the circumstances, for ill-considered action
under emergency conditions can jeopardize the client's interest.
[4] A lawyer may accept representation where the requisite level of
competence can be achieved by reasonable preparation. This applies as well
to a lawyer who is appointed as counsel for an unrepresented person.
See also Rule 6.2.
Thoroughness and Preparation
[5] Competent handling of a particular matter includes inquiry into and
analysis of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent practitioners. It
also includes adequate preparation. The required attention and preparation
are determined in part by what is at stake; major litigation and complex
transactions ordinarily require more extensive treatment than matters of
lesser complexity and consequence. An agreement between the lawyer and the
client regarding the scope of the representation may limit the matters for
which the lawyer is responsible. See Rule 1.2(c).
Maintaining Competence
[6] To maintain the requisite knowledge and skill, a lawyer should keep
abreast of changes in the law and its practice, engage in continuing study
and education and comply with all continuing legal education requirements
to which the lawyer is subject.
[Amended effective September 1, 2006.]
RULE 1.2
SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's
decisions concerning the objectives of representation and, as required by Rule
1.4, shall consult with the client as to the means by which they are to be
pursued. A lawyer may take such action on behalf of the client as is impliedly
authorized to carry out the representation. A lawyer shall abide by a client's
decision whether to settle a matter. In a criminal case, the lawyer shall abide
by the client's decision, after consultation with the lawyer, as to a plea to
be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer's representation of a client, including representation by
appointment, does not constitute an endorsement of the client's political,
economic, social or moral views or activities.
(c) A lawyer may limit the scope of the representation if the limitation is
reasonable under the circumstances and the client gives informed consent.
(d) A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent, but a lawyer may
discuss the legal consequences of any proposed course of conduct with a client
and may counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning or application of the law.
(e) [Reserved.]
(f) A lawyer shall not purport to act as a lawyer for any person or
organization if the lawyer knows or reasonably should know that the lawyer is
acting without the authority of that person or organization, unless the lawyer
is authorized or required to so act by law or a court order.
Comment
Allocation of Authority between Client and Lawyer
[1] Paragraph (a) confers upon the client the ultimate authority to
determine the purposes to be served by legal representation, within the limits
imposed by law and the lawyer's professional obligations. The decisions
specified in paragraph (a), such as whether to settle a civil matter, must also
be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate
with the client about such decisions. With respect to the means by which the
client's objectives are to be pursued, the lawyer shall consult with the client
as required by Rule 1.4(a)(2) and may take such action as is impliedly
authorized to carry out the representation.
[2] On occasion, however, a lawyer and a client may disagree about the means
to be used to accomplish the client's objectives. Clients normally defer to the
special knowledge and skill of their lawyer with respect to the means to be
used to accomplish their objectives, particularly with respect to technical,
legal and tactical matters. Conversely, lawyers usually defer to the client
regarding such questions as the expense to be incurred and concern for third
persons who might be adversely affected. Because of the varied nature of the
matters about which a lawyer and client might disagree and because the actions
in question may implicate the interests of a tribunal or other persons, this
Rule does not prescribe how such disagreements are to be resolved. Other law,
however, may be applicable and should be consulted by the lawyer. The lawyer
should also consult with the client and seek a mutually acceptable resolution
of the disagreement. If such efforts are unavailing and the lawyer has a
fundamental disagreement with the client, the lawyer may withdraw from the
representation. See Rule 1.16(b)(4). Conversely, the client may resolve the
disagreement by discharging the lawyer. See Rule 1.16(a)(3).
[3] At the outset of a representation, the client may authorize the lawyer
to take specific action on the client's behalf without further consultation.
Absent a material change in circumstances and subject to Rule 1.4, a lawyer may
rely on such an advance authorization. The client may, however, revoke such
authority at any time.
[4] In a case in which the client appears to be suffering diminished
capacity, the lawyer's duty to abide by the client's decisions is to be guided
by reference to Rule 1.14.
Independence from Client's Views or Activities
[5] Legal representation should not be denied to people who are unable to
afford legal services, or whose cause is controversial or the subject of
popular disapproval. By the same token, representing a client does not
constitute approval of the client's views or activities.
Agreements Limiting Scope of Representation
[6] The scope of services to be provided by a lawyer may be limited by
agreement with the client or by the terms under which the lawyer's services are
made available to the client. When a lawyer has been retained by an insurer to
represent an insured, for example, the representation may be limited to matters
related to the insurance coverage. A limited representation may be appropriate
because the client has limited objectives for the representation. In addition,
the terms upon which representation is undertaken may exclude specific means
that might otherwise be used to accomplish the client's objectives. Such
limitations may exclude actions that the client thinks are too costly or that
the lawyer regards as repugnant or imprudent.
[7] Although this Rule affords the lawyer and client substantial latitude to
limit the representation, the limitation must be reasonable under the
circumstances. If, for example, a client's objective is limited to securing
general information about the law the client needs in order to handle a common
and typically uncomplicated legal problem, the lawyer and client may agree that
the lawyer's services will be limited to a brief telephone consultation. Such a
limitation, however, would not be reasonable if the time allotted was not
sufficient to yield advice upon which the client could rely. Although an
agreement for a limited representation does not exempt a lawyer from the duty
to provide competent representation, the limitation is a factor to be
considered when determining the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation. See Rule 1.1.
[8] All agreements concerning a lawyer's representation of a client must
accord with the Rules of Professional Conduct and other law. See, e.g., Rules
1.1, 1.8 and 5.6.
See also Washington Comment [14].
Criminal, Fraudulent and Prohibited Transactions
[9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting
a client to commit a crime or fraud. This prohibition, however, does not
preclude the lawyer from giving an honest opinion about the actual consequences
that appear likely to result from a client's conduct. Nor does the fact that a
client uses advice in a course of action that is criminal or fraudulent of
itself make a lawyer a party to the course of action. There is a critical
distinction between presenting an analysis of legal aspects of questionable
conduct and recommending the means by which a crime or fraud might be committed
with impunity.
[10] When the client's course of action has already begun and is continuing,
the lawyer's responsibility is especially delicate. The lawyer is required to
avoid assisting the client, for example, by drafting or delivering documents
that the lawyer knows are fraudulent or by suggesting how the wrongdoing might
be concealed. A lawyer may not continue assisting a client in conduct that the
lawyer originally supposed was legally proper but then discovers is criminal or
fraudulent. The lawyer must, therefore, withdraw from the representation of the
client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might
be insufficient. It may be necessary for the lawyer to give notice of the fact
of withdrawal and to disaffirm any opinion, document, affirmation or the like.
See Rule 4.1.
[11] Where the client is a fiduciary, the lawyer may be charged with special
obligations in dealings with a beneficiary.
[12] Paragraph (d) applies whether or not the defrauded party is a party to
the transaction. Hence, a lawyer must not participate in a transaction to
effectuate criminal or fraudulent avoidance of tax liability. Paragraph (d)
does not preclude undertaking a criminal defense incident to a general retainer
for legal services to a lawful enterprise. The last clause of paragraph (d)
recognizes that determining the validity or interpretation of a statute or
regulation may require a course of action involving disobedience of the statute
or regulation or of the interpretation placed upon it by governmental authorities.
[13] If a lawyer comes to know or reasonably should know that a client
expects assistance not permitted by the Rules of Professional Conduct or other
law or if the lawyer intends to act contrary to the client's instructions, the
lawyer must consult with the client regarding the limitations on the lawyer's
conduct. See Rule 1.4(a)(5).
Additional Washington Comments (14-17)
Agreements Limiting Scope of Representation
[14] An agreement limiting the scope of a representation shall consider the
applicability of Rule 4.2 to the representation. (The provisions of this
Comment were taken from former Washington RPC 1.2(c).) See also Comment [11] to
Rule 4.2 for specific considerations pertaining to contact with an otherwise
represented person to whom limited representation is being or has been provided.
Acting as a Lawyer Without Authority
[15] Paragraph (f) was taken from former Washington RPC 1.2(f), which was
deleted from the RPC by amendment effective September 1, 2006. The mental
state has been changed from "willfully" to one of knowledge or constructive
knowledge. See Rule 1.0(f) & (j). Although the language and structure of
paragraph (f) differ from the former version in a number of other respects,
paragraph (f) does not otherwise represent a change in Washington law
interpreting former RPC 1.2(f).
[16] If a lawyer is unsure of the extent of his or her authority to
represent a person because of that person's diminished capacity, paragraph
(f) of this Rule does not prohibit the lawyer from taking action in
accordance with Rule 1.14 to protect the person's interests. Protective action
taken in conformity with Rule 1.14 does not constitute a violation of this Rule.
[17] Paragraph (f) does not prohibit a lawyer from taking any action
permitted or required by these Rules, court rules, or other law when
withdrawing from a representation, when terminated by a client, or when
ordered to continue representation by a tribunal. See Rule 1.16(c).
[Amended effective September 1, 2006; September 1, 2011.]
RULE 1.3
DILIGENCE
A lawyer shall act with reasonable diligence and promptness in
representing a client.
Comment
[1] [Washington revision] A lawyer should pursue a matter on behalf of a
client despite opposition, obstruction or personal inconvenience to the
lawyer, and take whatever lawful and ethical measures are required to
vindicate a client's cause or endeavor. A lawyer must also act with
commitment and dedication to the interests of the client and with diligence
in advocacy upon the client's behalf. A lawyer is not bound, however, to
press for every advantage that might be realized for a client. For example,
a lawyer may have authority to exercise professional discretion in
determining the means by which a matter should be pursued. See Rule 1.2.
The lawyer's duty to act with reasonable diligence does not require the use
of offensive tactics or preclude the treating of all persons involved in
the legal process with courtesy and respect.
[2] A lawyer's work load must be controlled so that each matter can be
handled competently.
[3] Perhaps no professional shortcoming is more widely resented than
procrastination. A client's interests often can be adversely affected by
the passage of time or the change of conditions; in extreme instances, as
when a lawyer overlooks a statute of limitations, the client's legal
position may be destroyed. Even when the client's interests are not
affected in substance, however, unreasonable delay can cause a client
needless anxiety and undermine confidence in the lawyer's trustworthiness.
A lawyer's duty to act with reasonable promptness, however, does not
preclude the lawyer from agreeing to a reasonable request for postponement
that will not prejudice the lawyer's client.
[4] Unless the relationship is terminated as provided in Rule 1.16, a
lawyer should carry through to conclusion all matters undertaken for a
client. If a lawyer's employment is limited to a specific matter, the
relationship terminates when the matter has been resolved. If a lawyer has
served a client over a substantial period in a variety of matters, the
client sometimes may assume that the lawyer will continue to serve on a
continuing basis unless the lawyer gives notice of withdrawal. Doubt about
whether a client-lawyer relationship still exists should be clarified by
the lawyer, preferably in writing, so that the client will not mistakenly
suppose the lawyer, is looking after the client's affairs when the lawyer
has ceased to do so. For example, if a lawyer has handled a judicial or
administrative proceeding that produced a result adverse to the client and
the lawyer and the client have not agreed that the lawyer will handle the
matter on appeal, the lawyer must consult with the client about the
possibility of appeal before relinquishing responsibility for the matter.
See Rule 1q.4(a)(2). Whether the lawyer is obligated to prosecute the
appeal for the client depends on the scope of the representation the lawyer
has agreed to provide to the client. See Rule 1.2.
[5] [Reserved.]
[Amended effective September 1, 2006.]
RPC RULE 1.4
COMMUNICATION
(a) A lawyer shall;
(1) promptly inform the client of any decision of circumstance with
respect to which the client's informed consent, as defined in Rule 1.0(e),
is required by these Rules;
(2) reasonably consult with the client about the means by which the
client's objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the
matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the
lawyer's conduct when the lawyer knows that the client expects assistance
not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
Comment
[1] Reasonable communication between the lawyer and the client is
necessary for the client effectively to participate in the representation.
Communicating with Client
[2] If these Rules require that a particular decision about the
representation be made by the client, paragraph (a)(1) requires that the
lawyer promptly consult with and secure the client's consent prior to
taking action unless prior discussions with the client have resolved what
action the client wants the lawyer to take. For example, a lawyer who
receives from opposing counsel an offer of settlement in a civil
controversy or a proffered plea bargain in a criminal case must promptly
inform the client of its substance unless that client has previously
indicated that the proposal will be acceptable or unacceptable or has
authorized the lawyer to accept or to reject the offer. See Rule 1.2(a).
[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the
client about the means to be used to accomplish the client's objectives. In
some situations - depending on both the importance of the action under
consideration and the feasibility of consulting with the client - this duty
will require consultation prior to taking action. In other circumstances,
such as during a trial when an immediate decision must be made, the
exigency of the situation may require the lawyer to act without prior
consultation. In such cases the lawyer must nonetheless act reasonably to
inform the client of actions the lawyer has taken on the client's behalf.
Additionally, paragraph (a)(3) requires that the lawyer keep the client
reasonably informed about the status of the matter, such as significant
developments affecting the timing or the substance of the representation.
[4] A lawyer's regular communication with clients will minimize the
occasions on which a client will need to request information concerning the
representation. When a client makes a reasonable request for information,
however, paragraph (a)(4) requires prompt compliance with the request, or
if a prompt response is not feasible, that the lawyer, or a member of the
lawyer's staff, acknowledge receipt of the request and advise the client
when a response may be expected. Client telephone calls should be promptly
returned or acknowledged.
Explaining Matters
[5] The client should have sufficient information to participate
intelligently in decisions concerning the objectives of the representation
and the means by which they are to be pursued, to the extent the client is
willing and able to do so. Adequacy of communication depends in part on the
kind of advice or assistance that is involved. For example, when there is
time to explain a proposal made in a negotiation, the lawyer should review
all important provisions with the client before proceeding to an agreement.
In litigation a lawyer should explain the general strategy and prospects of
success and ordinarily should consult the client on tactics that are likely
to result in significant expense or to injure or coerce others. On the
other hand, a lawyer ordinarily will not be expected to describe trial or
negotiation strategy in detail. The guiding principle is that the lawyer
should fulfill reasonable client expectations for information consistent
with the duty to act in the client's best interests, and the client's
overall requirements as to the character of representation. In certain
circumstances, such as when a lawyer asks a client to consent to a
representation affected by a conflict of interest, the client must give
informed consent, as defined in Rule 1.0(e).
[6] Ordinarily, the information to be provided is that appropriate for a
client who is a comprehending and responsible adult. However, fully
informing the client according to this standard may be impracticable, for
example, where the client is a child or suffers from diminished capacity.
See Rule 1.14. When the client is an organization or group, it is often
impossible or inappropriate to inform every one of its members about its
legal affairs; ordinarily, the lawyer should address communications to the
appropriate officials of the organization. See Rule 1.13. Where many
routine matters are involved, a system of limited or occasional reporting
may be arranged with the client.
Withholding Information
[7] In some circumstances, a lawyer may be justified in delaying
transmission of information when the client would be likely to react
imprudently to an immediate communication. Thus, a lawyer might withhold a
psychiatric diagnosis of a client when the examining psychiatrist indicates
that disclosure would harm the client. A lawyer may not withhold
information to serve the lawyer's own interest or convenience or the
interests or convenience of another person. Rules or court orders governing
litigation may provide that information supplied to a lawyer may not be
disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.
[Amended effective September 1, 2006.]
RPC RULE 1.5
FEES
(a) A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors to be
considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services;
(8) whether the fee is fixed or contingent; and
(9) the terms of the fee agreement between the lawyer and the client,
including whether the fee agreement or confirming writing demonstrates that the
client had received a reasonable and fair disclosure of material elements of the
fee agreement and of the lawyer's billing practices.
(b) The scope of the representation and the basis or rate of the fee and
expenses for which the client will be responsible shall be communicated to the
client, preferably in writing, before or within a reasonable time after
commencing the representation except when the lawyer will charge a regularly
represented client on the same basis or rate. Any changes in the basis or rate
of the fee or expenses shall also be communicated to the client. Upon the
request of the client in any matter, the lawyer shall communicate to the client
in writing the basis or rate of the fee.
(c) A fee may be contingent on the outcome of the matter for which the service
is rendered, except in a matter in which a contingent fee is prohibited by
paragraph (d) or other law. If a fee is contingent on the outcome of a matter, a
lawyer shall comply with the following
(1) A contingent fee agreement shall be in a writing and signed by the client;
(2) A contingent fee agreement shall state the method by which the fee is
to be determined, including the percentage or percentages that shall accrue to
the lawyer in the event of settlement, trial or appeal; litigation and other
expenses to be deducted from the recovery; and whether such expenses are to be
deducted before or after the contingent fee is calculated. The agreement must
clearly notify the client of any expenses for which the client will be liable,
whether or not the client is the prevailing party;
(3) Upon conclusion of a contingent fee matter, the lawyer shall provide
the client with a written statement stating the outcome of the matter and, if
there is a recovery, showing the remittance to the client and the method of its
determination; and
(4) A contingent fee consisting of a percentage of the monetary amount
recovered for a claimant, in which all or part of the recovery is to be paid in
the future, shall be paid only
(i) by applying the percentage to the amounts recovered as they are
received by the client; or
(ii) by applying the percentage to the actual cost of the settlement or
award to the defendant.
(d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which
is contingent upon the securing of a dissolution or annulment of marriage or
upon the amount of maintenance or support, or property settlement in lieu
thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
(e) A division of a fee between lawyers who are not in the same firm may be
made only if:
(1) (i) the division is in proportion to the services provided by each
lawyer or each lawyer assumes joint responsibility for the representation;
(ii) the client agrees to the arrangement, including the share each
lawyer will receive, and the agreement is confirmed in writing; and
(iii) the total fee is reasonable; or
(2) the division is between the lawyer and a duly authorized lawyer
referral service of either the Washington State Bar Association or of one of the
county bar associations of this state.
(f) Fees and expenses paid in advance of performance of services shall
comply with Rule 1.15A, subject to the following exceptions:
(1) A lawyer may charge a retainer, which is a fee that a client pays
to a lawyer to be available to the client during a specified period or on a
specified matter, in addition to and apart from any compensation for legal
services performed. A retainer must be agreed to in a writing signed by the
client. Unless otherwise agreed, a retainer is the lawyer's property on
receipt and shall not be placed in the lawyer's trust account.
(2) A lawyer may charge a flat fee for specified legal services, which
constitutes complete payment for those services and is paid in whole or in
part in advance of the lawyer providing the services. If agreed to in
advance in a writing signed by the client, a flat fee is the lawyer's
property on receipt, in which case the fee shall not be deposited into a
trust account under Rule 1.15A. The written fee agreement shall, in a manner
that can easily be understood by the client, include the following: (i) the
scope of the services to be provided; (ii) the total amount of the fee and
the terms of payment; (iii) that the fee is the lawyer's property
immediately on receipt and will not be placed into a trust account; (iv)
that the fee agreement does not alter the client's right to terminate the
client-lawyer relationship; and (v) that the client may be entitled to a
refund of a portion of the fee if the agreed-upon legal services have not
been completed. A statement in substantially the following form satisfies
this requirement:
[Lawyer/law firm] agrees to provide, for a flat fee of
$__________, the following services:
_____________________________________. The flat fee shall be paid
as follows: _____________________________. Upon [lawyer's/law
firm's] receipt of all or any portion of the flat fee, the funds
are the property of [lawyer/law firm] and will not be placed in a
trust account. The fact that you have paid your fee in advance does
not affect your right to terminate the client-lawyer relationship.
In the event our relationship is terminated before the agreed-upon
legal services have been completed, you may or may not have a right
to a refund of a portion of the fee.
(3) In the event of a dispute relating to a fee under paragraph (f)(1)
or (f)(2) of this Rule, the lawyer shall take reasonable and prompt action
to resolve the dispute.
Comment
Reasonableness of Fee and Expenses
[1] Paragraph (a) requires that lawyers charge fees that are reasonable under
the circumstances. The factors specified in (1) through (9) are not exclusive.
Nor will each factor be relevant in each instance. Paragraph (a) also requires
that expenses for which the client will be charged must be reasonable. A lawyer
may seek reimbursement for the cost of services performed in-house, such as
copying, or for other expenses incurred in-house, such as telephone charges,
either by charging a reasonable amount to which the client has agreed in advance
or by charging an amount that reasonably reflects the cost incurred by the
lawyer.
See also Washington Comments [10] and [11].
Basis or Rate of Fee
[2] When the lawyer has regularly represented a client, they ordinarily will
have evolved an understanding concerning the basis or rate of the fee and the
expenses for which the client will be responsible. In a new client-lawyer
relationship, however, an understanding as to fees and expenses must be promptly
established. Generally, it is desirable to furnish the client with at least a
simple memorandum or copy of the lawyer's customary fee arrangements that states
the general nature of the legal services to be provided, the basis, rate or
total amount of the fee and whether and to what extent the client will be
responsible for any costs, expenses or disbursements in the course of the
representation. A written statement concerning the terms of the engagement
reduces the possibility of misunderstanding.
[3] [Reserved in part.] Contingent fees, like any other fees, are subject to
the reasonableness standard of paragraph (a) of this Rule. In determining
whether a particular contingent fee is reasonable, or whether it is reasonable
to charge any form of contingent fee, a lawyer must consider the factors that
are relevant under the circumstances.
Terms of Payment
[4] A lawyer may require advance payment of a fee, but is obliged to return
any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment
for services, such as an ownership interest in an enterprise, providing this
does not involve acquisition of a proprietary interest in the cause of action or
subject matter of the litigation contrary to Rule 1.8 (i). However, a fee paid
in property instead of money may be subject to the requirements of Rule 1.8(a)
because such fees often have the essential qualities of a business transaction
with the client.
[5] An agreement may not be made whose terms might induce the lawyer
improperly to curtail services for the client or perform them in a way contrary
to the client's interest. For example, a lawyer should not enter into an
agreement whereby services are to be provided only up to a stated amount when it
is foreseeable that more extensive services probably will be required, unless
the situation is adequately explained to the client. Otherwise, the client might
have to bargain for further assistance in the midst of a proceeding or
transaction. However, it is proper to define the extent of services in light of
the client's ability to pay. A lawyer should not exploit a fee arrangement based
primarily on hourly charges by using wasteful procedures.
Prohibited Contingent Fees
[6] [Washington revision] Paragraph (d) prohibits a lawyer from charging a
contingent fee in a domestic relations matter when payment is contingent upon
the securing of a dissolution or annulment of marriage or upon the amount of
maintenance or support or property settlement to be obtained. This provision
does not preclude a contract for a contingent fee for legal representation in
connection with the recovery of post-judgment balances due under support,
maintenance or other financial orders because such contracts do not implicate
the same policy concerns.
Division of Fee
[7] A division of fee is a single billing to a client covering the fee of two
or more lawyers who are not in the same firm. A division of fee facilitates
association of more than one lawyer in a matter in which neither alone could
serve the client as well, and most often is used when the fee is contingent and
the division is between a referring lawyer and a trial specialist. Paragraph (e)
permits the lawyers to divide a fee either on the basis of the proportion of
services they render or if each lawyer assumes responsibility for the
representation as a whole. In addition, the client must agree to the
arrangement, including the share that each lawyer is to receive, and the
agreement must be confirmed in writing. Contingent fee agreements must be in a
writing signed by the client and must otherwise comply with paragraph (c) of
this Rule. Joint responsibility for the representation entails financial and
ethical responsibility for the representation as if the lawyers were associated
in a partnership. A lawyer should only refer a matter to a lawyer whom the
referring lawyer reasonably believes is competent to handle the matter. See Rule
1.1.
[8] Paragraph (e) does not prohibit or regulate division of fees to be
received in the future for work done when lawyers were previously associated in
a law firm.
Disputes over Fees
[9] If a procedure has been established for resolution of fee disputes, such
as an arbitration or mediation procedure established by the bar, the lawyer must
comply with the procedure when it is mandatory, and, even when it is voluntary,
the lawyer should conscientiously consider submitting to it. Law may prescribe a
procedure for determining a lawyer's fee, for example, in representation of an
executor or administrator, a class or a person entitled to a reasonable fee as
part of the measure of damages. The lawyer entitled to such a fee and a lawyer
representing another party concerned with the fee should comply with the
prescribed procedure.
Additional Washington Comments (10 - 18)
Reasonableness of Fee and Expenses
[10] Every fee agreed to, charged, or collected, including a fee that is
a lawyer's property on receipt under paragraph (f)(1) or (f)(2), is subject
to Rule 1.5(a) and may not be unreasonable.
[11] Under paragraph (a)(9), one factor in determining whether a fee is
reasonable is whether the fee agreement or confirming writing demonstrates
that the client received a reasonable and fair disclosure of material
elements of the fee agreement. Lawyers are encouraged to use written fee
agreements that fully and fairly disclose all material terms in a manner
easily understood by the client.
Payment of Fees in Advance of Services
[12] In the absence of a written agreement between the lawyer and the
client to the contrary that complies with paragraph (f)(1) or (f)(2), all
advance payments are presumed to be deposits against future services or
costs and must, until the fee is earned or the cost incurred, be held in a
trust account pursuant to Rule 1.15A. See Rule 1.15A(c)(2). This fee
structure is known as an "advance fee deposit." Such a fee may only be
withdrawn when earned. See Rule 1.15A(h)(3). For example, when an advance
fee deposit is placed in trust, a lawyer may withdraw amounts based on the
actual hours worked. In the case of a flat fee that constitutes an advance
fee deposit because it does not meet the requirements of paragraph (f)(2),
the lawyer and client may mutually agree, preferably in writing, on a
reasonable basis for determining when portions of the fee have been earned,
such as specific "milestones" reached during the representation or specified
time intervals that reasonably reflect the actual performance of the legal services.
[13] Paragraphs (f)(1) and (f)(2) provide exceptions to the general rule
that fees received in advance must be placed in trust. Paragraph (f)(1)
describes a fee structure sometimes known as an "availability retainer,"
"engagement retainer," "true retainer," "general retainer," or "classic
retainer." Under these rules, this arrangement is called a "retainer." A
retainer secures availability alone, i.e., it presumes that the lawyer is to
be additionally compensated for any actual work performed. Therefore, a
payment purportedly made to secure a lawyer's availability, but that will be
applied to the client's account as the lawyer renders services, is not a
retainer under paragraph (f)(1). A written retainer agreement should clearly
specify the time period or purpose of the lawyer's availability, that the
client will be separately charged for any services provided, and that the
lawyer will treat the payment as the lawyer's property immediately on
receipt and will not deposit the fee into a trust account.
[14] Paragraph (f)(2) describes a "flat fee," sometimes also known as a
"fixed fee." A flat fee constitutes complete payment for specified legal
services, and does not vary with the amount of time or effort expended by
the lawyer to perform or complete the specified services. If the
requirements of paragraph (f)(2) are not met, a flat fee received in advance
must be deposited initially in the lawyer's trust account. See Washington Comment [12].
[15] If a lawyer and a client agree to a retainer under paragraph (f)(1)
or a flat fee under paragraph (f)(2) and the lawyer complies with the
applicable requirements, including obtaining agreement in a writing signed
by the client, the fee is considered the lawyer's property on receipt and
must not be deposited into a trust account containing client or third-party
funds. See Rule 1.15A(c) (lawyer must hold property of clients separate from
lawyer's own property). For definitions of the terms "writing" and "signed,"
see Rule 1.0(n).
[16] In fee arrangements involving more than one type of fee, the
requirements of paragraphs (f)(1) and (f)(2) apply only to the parts of the
arrangement that are retainers or flat fees. For example, a client might
agree to make an advance payment to a lawyer, a portion of which is a flat
fee for specified legal services with the remainder to be applied on an
hourly basis as services are rendered. The latter portion is an advance fee
deposit that must be placed in trust under Rule 1.15A(c)(2). If the
requirements of paragraph (f)(2) are met regarding the flat fee portion,
those funds are the lawyer's property on receipt and must not be kept in a
trust account. If the payment is in one check or negotiable instrument, it
must be deposited intact in the trust account, and the flat fee portion
belonging to the lawyer must be withdrawn at the earliest reasonable
time. See Rule 1.15A(h)(1)(ii) & (h)(4). See also Comment [10] to Rule 1.15A
(explaining prohibition on split deposits). Although a signed writing is
required under paragraphs (f)(1) and (f)(2) only for the retainer or flat
fee portion of the fee (and only if the lawyer and client agree that the fee
will be the lawyer's property on receipt), the lawyer should consider
putting the entire arrangement in writing to facilitate communication with
the client and prevent future misunderstanding. See Washington Comment [11].
[Amended effective September 1, 2006, November 18, 2008.]
RULE 1.6
CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a
client unless the client gives informed consent, the disclosure is impliedly
authorized in order to carry out the representation or the disclosure is
permitted by paragraph (b).
(b) A lawyer to the extent the lawyer reasonably believes necessary:
(1) shall reveal information relating to the representation of a client to
prevent reasonably certain death or substantial bodily harm;
(2) may reveal information relating to the representation of a client to
prevent the client from committing a crime;
(3) may reveal information relating to the representation of a client to
prevent, mitigate or rectify substantial injury to the financial interests or
property of another that is reasonably certain to result or has resulted from
the client's commission of a crime or fraud in furtherance of which the client
has used the lawyer's services;
(4) may reveal information relating to the representation of a client to
secure legal advice about the lawyer's compliance with these Rules;
(5) may reveal information relating to the representation of a client to
establish a claim or defense on behalf of the lawyer in a controversy between
the lawyer and the client, to establish a defense to a criminal charge or civil
claim against the lawyer based upon conduct in which the client was involved,
or to respond to allegations in any proceeding concerning the lawyer's
representation of the client;
(6) may reveal information relating to the representation of a client to
comply with a court order; or
(7) may reveal information relating to the representation of a client to
inform a tribunal about any breach of fiduciary responsibility when the client
is serving as a court appointed fiduciary such as a guardian, personal
representative, or receiver.
Comment
See also Washington Comment [19].
[1] [Washington revision] This Rule governs the disclosure by a lawyer of
information relating to the representation of a client. See Rule 1.18 for the
lawyer's duties with respect to information provided to the lawyer by a
prospective client, Rule 1.9(c)(2) for the lawyer's duty not to reveal
information relating to the lawyer's prior representation of a former client
and Rules 1.8(b) and 1.9(c)(1) for the lawyer's duties with respect to the use
of such information to the disadvantage of clients and former clients.
[2] A fundamental principle in the client-lawyer relationship is that, in
the absence of the client's informed consent, the lawyer must not reveal
information relating to the representation. See Rule 1.0(e) for the definition
of informed consent. This contributes to the trust that is the hallmark of the
client-lawyer relationship. The client is thereby encouraged to seek legal
assistance and to communicate fully and frankly with the lawyer even as to
embarrassing or legally damaging subject matter. The lawyer needs this
information to represent the client effectively and, if necessary, to advise
the client to refrain from wrongful conduct. Almost without exception, clients
come to lawyers in order to determine their rights and what is, in the complex
of laws and regulations, deemed to be legal and correct. Based upon experience,
lawyers know that almost all clients follow the advice given, and the law is upheld.
[3] The principle of client-lawyer confidentiality is given effect by
related bodies of law: the attorney-client privilege, the work product doctrine
and the rule of confidentiality established in professional ethics. The
attorney-client privilege and work-product doctrine apply in judicial and other
proceedings in which a lawyer may be called as a witness or otherwise required
to produce evidence concerning a client. The rule of client-lawyer
confidentiality applies in situations other than those where evidence is sought
from the lawyer through compulsion of law. The confidentiality rule, for
example, applies not only to matters communicated in confidence by the client
but also to all information relating to the representation, whatever its
source. A lawyer may not disclose such information except as authorized or
required by the Rules of Professional Conduct. See also Scope.
[4] Paragraph (a) prohibits a lawyer from revealing information relating to
the representation of a client. This prohibition also applies to disclosures by
a lawyer that do not in themselves reveal protected information but could
reasonably lead to the discovery of such information by a third person. A
lawyer's use of a hypothetical to discuss issues relating to the representation
is permissible so long as there is no reasonable likelihood that the listener
will be able to ascertain the identity of the client or the situation involved.
Authorized Disclosure
[5] Except to the extent that the client's instructions or special
circumstances limit that authority, a lawyer is impliedly authorized to make
disclosures about a client when appropriate in carrying out the representation.
In some situations, for example, a lawyer may be impliedly authorized to admit
a fact that cannot properly be disputed or to make a disclosure that
facilitates a satisfactory conclusion to a matter. Lawyers in a firm may, in
the course of the firm's practice, disclose to each other information relating
to a client of the firm, unless the client has instructed that particular
information be confined to specified lawyers.
Disclosure Adverse to Client
[6] [Washington revision] Although the public interest is usually best
served by a strict rule requiring lawyers to preserve the confidentiality of
information relating to the representation of their clients, the
confidentiality rule is subject to limited exceptions. Paragraph (b)(1)
recognizes the overriding value of life and physical integrity and requires
disclosure reasonably necessary to prevent reasonably certain death or
substantial bodily harm. Such harm is reasonably certain to occur if it will be
suffered imminently or if there is a present and substantial threat that a
person will suffer such harm at a later date if the lawyer fails to take action
necessary to eliminate the threat. Thus, a lawyer who knows that a client has
accidentally discharged toxic waste into a town's water supply must reveal this
information to the authorities if there is a present and substantial risk that
a person who drinks the water will contract a life-threatening or debilitating
disease and the lawyer's disclosure is necessary to eliminate the threat or
reduce the number of victims.
[7] [Reserved.]
[8] [Reserved.]
[9] A lawyer's confidentiality obligations do not preclude a lawyer from
securing confidential legal advice about the lawyer's personal responsibility
to comply with these Rules. In most situations, disclosing information to
secure such advice will be impliedly authorized for the lawyer to carry out the
representation. Even when the disclosure is not impliedly authorized, paragraph
(b)(4) permits such disclosure because of the importance of a lawyer's
compliance with the Rules of Professional Conduct.
[10] Where a legal claim or disciplinary charge alleges complicity of the
lawyer in a client's conduct or other misconduct of the lawyer involving
representation of the client, the lawyer may respond to the extent the lawyer
reasonably believes necessary to establish a defense. The same is true with
respect to a claim involving the conduct or representation of a former client.
Such a charge can arise in a civil, criminal, disciplinary or other proceeding
and can be based on a wrong allegedly committed by the lawyer against the
client or on a wrong alleged by a third person, for example, a person claiming
to have been defrauded by the lawyer and client acting together. The lawyer's
right to respond arises when an assertion of such complicity has been made.
Paragraph (b)(5) does not require the lawyer to await the commencement of an
action or proceeding that charges such complicity, so that the defense may be
established by responding directly to a third party who has made such an
assertion. The right to defend also applies, of course, where a proceeding has
been commenced.
[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove
the services rendered in an action to collect it. This aspect of the Rule
expresses the principle that the beneficiary of a fiduciary relationship may
not exploit it to the detriment of the fiduciary.
[12] [Reserved.]
[13] [Washington revision] A lawyer may be ordered to reveal information
relating to the representation of a client by a court. Absent informed consent
of the client to do otherwise, the lawyer should assert on behalf of the client
all nonfrivolous claims that the information sought is protected against
disclosure by the attorney-client privilege or other applicable law. In the
event of an adverse ruling, the lawyer must consult with the client about the
possibility of appeal to the extent required by Rule 1.4. Unless review is
sought, however, paragraph (b)(6) permits the lawyer to comply with the court's order.
See also Washington Comment [24].
[14] Paragraph (b) permits disclosure only to the extent the lawyer
reasonably believes the disclosure is necessary to accomplish one of the
purposes specified. Where practicable, the lawyer should first seek to persuade
the client to take suitable action to obviate the need for disclosure. In any
case, a disclosure adverse to the client's interest should be no greater than
the lawyer reasonably believes necessary to accomplish the purpose. If the
disclosure will be made in connection with a judicial proceeding, the
disclosure should be made in a manner that limits access to the information to
the tribunal or other persons having a need to know it and appropriate
protective orders or other arrangements should be sought by the lawyer to the
fullest extent practicable.
[15] [Washington revision] Paragraphs (b)(2) through (b)(7) permit but do
not require the disclosure of information relating to a client's representation
to accomplish the purposes specified in those paragraphs. In exercising the
discretion conferred by those paragraphs, the lawyer may consider such factors
as the nature of the lawyer's relationship with the client and with those who
might be injured by the client, the lawyer's own involvement in the transaction
and factors that may extenuate the conduct in question. A lawyer's decision not
to disclose as permitted by paragraph (b) does not violate this Rule.
Disclosure may be required, however, by other Rules. Some Rules require
disclosure only if such disclosure would be permitted by paragraph (b). See
Rules 1.2(d), 3.3, 4.1(b), and 8.1. See also Rule 1.13(c), which permits
disclosure in some circumstances whether or not Rule 1.6 permits the disclosure.
See also Washington Comment [23].
Acting Competently to Preserve Confidentiality
[16] A lawyer must act competently to safeguard information relating to the
representation of a client against inadvertent or unauthorized disclosure by
the lawyer or other persons who are participating in the representation of the
client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3.
[17] When transmitting a communication that includes information relating to
the representation of a client, the lawyer must take reasonable precautions to
prevent the information from coming into the hands of unintended recipients.
This duty, however, does not require that the lawyer use special security
measures if the method of communication affords a reasonable expectation of
privacy. Special circumstances, however, may warrant special precautions.
Factors to be considered in determining the reasonableness of the lawyer's
expectation of confidentiality include the sensitivity of the information and
the extent to which the privacy of the communication is protected by law or by
a confidentiality agreement. A client may require the lawyer to implement
special security measures not required by this Rule or may give informed
consent to the use of a means of communication that would otherwise be
prohibited by this Rule.
Former Client
[18] The duty of confidentiality continues after the client-lawyer
relationship has terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the
prohibition against using such information to the disadvantage of the former client.
Additional Washington Comments (19 - 26)
[19] The phrase "information relating to the representation" should be
interpreted broadly. The "information" protected by this Rule includes, but is
not necessarily limited to, confidences and secrets. "Confidence" refers to
information protected by the attorney client privilege under applicable law,
and "secret" refers to other information gained in the professional
relationship that the client has requested be held inviolate or the disclosure
of which would be embarrassing or would be likely to be detrimental to the client.
Disclosure Adverse to Client
[20] Washington's Rule 1.6(b)(2), which authorizes disclosure to prevent a
client from committing a crime, is significantly broader than the corresponding
exception in the Model Rule. While the Model Rule permits a lawyer to reveal
information relating to the representation to prevent the client from
"committing a crime . . . that is reasonably certain to result in substantial
injury to the financial interests or property of another and in furtherance of
which the client has used the lawyer's services," Washington's Rule permits the
lawyer to reveal such information to prevent the commission of any crime.
[21] [Reserved.]
[22] [Reserved.]
[23] The exceptions to the general rule prohibiting unauthorized disclosure
of information relating to the representation "should not be carelessly
invoked." In re Boelter, 139 Wn.2d 81, 91, 985 P.2d 328 (1999). A lawyer must
make every effort practicable to avoid unnecessary disclosure of information
relating to a representation, to limit disclosure to those having the need to
know it, and to obtain protective orders or make other arrangements minimizing
the risk of avoidable disclosure.
[24] Washington has not adopted that portion of Model Rule 1.6(b)(6)
permitting a lawyer to reveal information related to the representation to
comply with "other law." Washington's omission of this phrase arises from a
concern that it would authorize the lawyer to decide whether a disclosure is
required by "other law," even though the right to confidentiality and the right
to waive confidentiality belong to the client. The decision to waive
confidentiality should only be made by a fully informed client after
consultation with the client's lawyer or by a court of competent jurisdiction.
Limiting the exception to compliance with a court order protects the client's
interest in maintaining confidentiality while insuring that any determination
about the legal necessity of revealing confidential information will be made by
a court. It is the need for a judicial resolution of such issues that
necessitates the omission of "other law" from this Rule.
Withdrawal
[25] After withdrawal the lawyer is required to refrain from disclosing the
client's confidences, except as otherwise permitted by Rules 1.6 or 1.9. A
lawyer is not prohibited from giving notice of the fact of withdrawal by this
Rule, Rule 1.8(b), or Rule 1.9(c). If the lawyer's services will be used by the
client in furthering a course of criminal or fraudulent conduct, the lawyer
must withdraw. See Rule 1.16(a)(1). Upon withdrawal from the representation in
such circumstances, the lawyer may also disaffirm or withdraw any opinion,
document, affirmation, or the like. If the client is an organization, the
lawyer may be in doubt about whether contemplated conduct will actually be
carried out by the organization. When a lawyer requires guidance about
compliance with this Rule in connection with an organizational client, the
lawyer may proceed under the provisions of Rule 1.13(b).
Other
[26] This Rule does not relieve a lawyer of his or her obligations under
Rule 5.4(b) of the Rules for Enforcement of Lawyer Conduct.
[Amended effective September 1, 2006; September 1, 2011.]
RPC RULE 1.7
CONFLICT OF INTEREST; CURRENT CLIENTS
(a) Except as provided in paragraph (b), a lawyer shall not represent a
client if the representation involves a concurrent conflict of interest. A
concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or more
clients will be materially limited by the lawyer's responsibilities to
another client, a former client or a third person or by a personal interest
of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest
under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to
provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by
one client against another client represented by the lawyer in the same
litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing
(following authorization from the other client to make any required disclosures).
Comment
General Principles
[1] Loyalty and independent judgment are essential elements in the
lawyer's relationship to a client. Concurrent conflicts of interest can
arise from the lawyer's responsibilities to another client, a former client
or a third person or from the lawyer's own interests. For specific Rules
regarding certain concurrent conflicts of interest, see Rule 1.8. For
former client conflicts of interest, see Rule 1.9. For conflicts of
interest involving prospective clients, see Rule 1.18. For definitions of
"informed consent" and "confirmed in writing," see Rule 1.0(e) and (b).
[2] Resolution of a conflict of interest problem under this Rule requires
the lawyer to: 1) clearly identify the client or clients; 2) determine
whether a conflict of interest exists; 3) decide whether the representation
may be undertaken despite the existence of a conflict, i.e., whether the
conflict is consentable; and 4) if so, consult with the clients affected
under paragraph (a) and obtain their informed consent, confirmed in
writing. The clients affected under paragraph (a) include both of the
clients referred to in paragraph (a)(1) and the one or more clients whose
representation might be materially limited under paragraph (a)(2).
[3] A conflict of interest may exist before representation is undertaken,
in which event the representation must be declined, unless the lawyer
obtains the informed consent of each client under the conditions of
paragraph (b). To determine whether a conflict of interest exists, a lawyer
should adopt reasonable procedures, appropriate for the size and type of
firm and practice, to determine in both litigation and non-litigation
matters the persons and issues involved. See also Comment to Rule 5.1.
Ignorance caused by a failure to institute such procedures will not excuse
a lawyer's violation of this Rule. As to whether a client-lawyer
relationship exists or, having once been established, is continuing, see
Comment to Rule 1.3 and Scope.
[4] If a conflict arises after representation has been undertaken, the
lawyer ordinarily must withdraw from the representation, unless the lawyer
has obtained the informed consent of the client under the conditions of
paragraph (b). See Rule 1.16. Where more than one client is involved,
whether the lawyer may continue to represent any of the clients is
determined both by the lawyer's ability to comply with duties owed to the
former client and by the lawyer's ability to represent adequately the
remaining client or clients, given the lawyer's duties to the former
client. See Rule 1.9. See also Comments [5] and [29].
[5] Unforeseeable developments, such as changes in corporate and other
organizational affiliations or the addition or realignment of parties in
litigation, might create conflicts in the midst of a representation, as
when a company sued by the lawyer on behalf of one client is bought by
another client represented by the lawyer in an unrelated matter. Depending
on the circumstances, the lawyer may have the option to withdraw from one
of the representations in order to avoid the conflict. The lawyer must seek
court approval where necessary and take steps to minimize harm to the
clients. See Rule 1.16. The lawyer must continue to protect the confidences
of the client from whose representation the lawyer has withdrawn.
See Rule 1.9(c).
See also Washington Comment [36].
Identifying Conflicts of Interest: Directly Adverse
[6] Loyalty to a current client prohibits undertaking representation
directly adverse to that client without that client's informed consent.
Thus, absent consent, a lawyer may not act as an advocate in one matter
against a person the lawyer represents in some other matter, even when the
matters are wholly unrelated. The client as to whom the representation is
directly adverse is likely to feel betrayed, and the resulting damage to
the client-lawyer relationship is likely to impair the lawyer's ability to
represent the client effectively. In addition, the client on whose behalf
the adverse representation is undertaken reasonably may fear that the
lawyer will pursue that client's case less effectively out of deference to
the other client, i.e., that the representation may be materially limited
by the lawyer's interest in retaining the current client. Similarly, a
directly adverse conflict may arise when a lawyer is required to cross-
examine a client who appears as a witness in a lawsuit involving another
client, as when the testimony will be damaging to the client who is
represented in the lawsuit. On the other hand, simultaneous representation
in unrelated matters of clients whose interests are only economically
adverse, such as representation of competing economic enterprises in
unrelated litigation, does not ordinarily constitute a conflict of interest
and thus may not require consent of the respective clients.
[7] Directly adverse conflicts can also arise in transactional matters.
For example, if a lawyer is asked to represent the seller of a business in
negotiations with a buyer represented by the lawyer, not in the same
transaction but in another, unrelated matter, the lawyer could not
undertake the representation without the informed consent of each client.
Identifying Conflicts of Interest: Material Limitation
[8] Even where there is no direct adverseness, a conflict of interest
exists if there is a significant risk that a lawyer's ability to consider,
recommend or carry out an appropriate course of action for the client will
be materially limited as a result of the lawyer's other responsibilities or
interests. For example, a lawyer asked to represent several individuals
seeking to form a joint venture is likely to be materially limited in the
lawyer's ability to recommend or advocate all possible positions that each
might take because of the lawyer's duty of loyalty to the others. The
conflict in effect forecloses alternatives that would otherwise be
available to the client. The mere possibility of subsequent harm does not
itself require disclosure and consent. The critical questions are the
likelihood that a difference in interests will eventuate and, if it does,
whether it will materially interfere with the lawyer's independent
professional judgment in considering alternatives or foreclose courses of
action that reasonably should be pursued on behalf of the client.
See also Washington Comment [37].
Lawyer's Responsibilities to Former Clients and Other Third Persons
[9] In addition to conflicts with other current clients, a lawyer's
duties of loyalty and independence may be materially limited by
responsibilities to former clients under Rule 1.9 or by the lawyer's
responsibilities to other persons, such as fiduciary duties arising from a
lawyer's service as a trustee, executor or corporate director.
Personal Interest Conflicts
[10] The lawyer's own interests should not be permitted to have an
adverse effect on representation of a client. For example, if the probity
of a lawyer's own conduct in a transaction is in serious question, it may
be difficult or impossible for the lawyer to give a client detached advice.
Similarly, when a lawyer has discussions concerning possible employment
with an opponent of the lawyer's client, or with a law firm representing
the opponent, such discussions could materially limit the lawyer's
representation of the client. In addition, a lawyer may not allow related
business interests to affect representation, for example, by referring
clients to an enterprise in which the lawyer has an undisclosed financial
interest. See Rule 1.8 for specific Rules pertaining to a number of
personal interest conflicts, including business transactions with clients.
See also Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily
are not imputed to other lawyers in a law firm).
[11] [Washington revision] When lawyers representing different clients in
the same matter or in substantially related matters are related as parent,
child, sibling, or spouse, or if the lawyers have some other close familial
relationship or if the lawyers are in a personal intimate relationship with
one another, there may be a significant risk that client confidences will
be revealed and that the lawyer's family or other familial or intimate
relationship will interfere with both loyalty and independent professional
judgment. See Rule 1.8(l). As a result, each client is entitled to know of
the existence and implications of the relationship between the lawyers
before the lawyer agrees to undertake the representation. Thus, a lawyer so
related to another lawyer ordinarily may not represent a client in a matter
where that lawyer is representing another party, unless each client gives
informed consent. The disqualification arising from such relationships is
personal and ordinarily is not imputed to members of firms with whom the
lawyers are associated. See Rules 1.8(k) and 1.10.
[12] [Reserved.]
Interest of Person Paying for a Lawyer's Service
[13] A lawyer may be paid from a source other than the client, including
a co-client, if the client is informed of that fact and consents and the
arrangement does not compromise the lawyer's duty of loyalty or independent
judgment to the client. See Rule 1.8(f). If acceptance of the payment from
any other source presents a significant risk that the lawyer's
representation of the client will be materially limited by the lawyer's own
interest in accommodating the person paying the lawyer's fee or by the
lawyer's responsibilities to a payer who is also a co-client, then the
lawyer must comply with the requirements of paragraph (b) before accepting
the representation, including determining whether the conflict is
consentable and, if so, that the client has adequate information about the
material risks of the representation.
Prohibited Representations
[14] Ordinarily, clients may consent to representation notwithstanding a
conflict. However, as indicated in paragraph (b), some conflicts are
nonconsentable, meaning that the lawyer involved cannot properly ask for
such agreement or provide representation on the basis of the client's
consent. When the lawyer is representing more than one client, the question
of consentability must be resolved as to each client.
[15] Consentability is typically determined by considering whether the
interests of the clients will be adequately protected if the clients are
permitted to give their informed consent to representation burdened by a
conflict of interest. Thus, under paragraph (b)(1), representation is
prohibited if in the circumstances the lawyer cannot reasonably conclude
that the lawyer will be able to provide competent and diligent representation.
See Rule 1.1 (Competence) and Rule 1.3 (Diligence).
[16] [Washington revision] Paragraph (b)(2) describes conflicts that are
nonconsentable because the representation is prohibited by applicable law.
For example, in some states substantive law provides that the same lawyer
may not represent more than one defendant in a capital case, even with the
consent of the clients, and under federal criminal statutes certain
representations by a former government lawyer are prohibited, despite the
informed consent of the former client. In addition, decisional law in some
states other than Washington limits the ability of a governmental client,
such as a municipality, to consent to a conflict of interest.
See Washington Comment [38].
[17] Paragraph (b)(3) describes conflicts that are nonconsentable because
of the institutional interest in vigorous development of each client's
position when the clients are aligned directly against each other in the
same litigation or other proceeding before a tribunal. Whether clients are
aligned directly against each other within the meaning of this paragraph
requires examination of the context of the proceeding. Although this
paragraph does not preclude a lawyer's multiple representation of adverse
parties to a mediation (because mediation is not a proceeding before a
"tribunal" under Rule 1.0(m)), such representation may be precluded by
paragraph (b)(1).
See also Washington Comment [38].
Informed Consent
[18] Informed consent requires that each affected client be aware of the
relevant circumstances and of the material and reasonably foreseeable ways
that the conflict could have adverse effects on the interests of that
client. See Rule 1.0(e) (informed consent). The information required
depends on the nature of the conflict and the nature of the risks involved.
When representation of multiple clients in a single matter is undertaken,
the information must include the implications of the common representation,
including possible effects on loyalty, confidentiality and the attorney-
client privilege and the advantages and risks involved. See Comments [30]
and [31] (effect of common representation on confidentiality).
[19] Under some circumstances it may be impossible to make the disclosure
necessary to obtain consent. For example, when the lawyer represents
different clients in related matters and one of the clients refuses to
consent to the disclosure necessary to permit the other client to make an
informed decision, the lawyer cannot properly ask the latter to consent. In
some cases the alternative to common representation can be that each party
may have to obtain separate representation with the possibility of
incurring additional costs. These costs, along with the benefits of
securing separate representation, are factors that may be considered by the
affected client in determining whether common representation is in the
client's interests.
See also Washington Comment [39].
Consent Confirmed in Writing
[20] Paragraph (b) requires the lawyer to obtain the informed consent of
the client, confirmed in writing. Such a writing may consist of a document
executed by the client or one that the lawyer promptly records and
transmits to the client following an oral consent. See Rule 1.0(b). See
also Rule 1.0(n) (writing includes electronic transmission). If it is not
feasible to obtain or transmit the writing at the time the client gives
informed consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter. See Rule 1.0(b). The requirement of a writing
does not supplant the need in most cases for the lawyer to talk with the
client, to explain the risks and advantages, if any, of representation
burdened with a conflict of interest, as well as reasonably available
alternatives, and to afford the client a reasonable opportunity to consider
the risks and alternatives and to raise questions and concerns. Rather, the
writing is required in order to impress upon clients the seriousness of the
decision the client is being asked to make and to avoid disputes or
ambiguities that might later occur in the absence of a writing.
Revoking Consent
[21] A client who has given consent to a conflict may revoke the consent
and, like any other client, may terminate the lawyer's representation at
any time. Whether revoking consent to the client's own representation
precludes the lawyer from continuing to represent other clients depends on
the circumstances, including the nature of the conflict, whether the client
revoked consent because of a material change in circumstances, the
reasonable expectations of the other client and whether material detriment
to the other clients or the lawyer would result.
Consent to Future Conflict
[22] [Reserved.]
Conflicts in Litigation
[23] Paragraph (b)(3) prohibits representation of opposing parties in
the same litigation, regardless of the clients' consent. On the other hand,
simultaneous representation of parties whose interests in litigation may
conflict, such as coplaintiffs or codefendants, is governed by paragraph
(a)(2). A conflict may exist by reason of substantial discrepancy in the
parties' testimony, incompatibility in positions in relation to an opposing
party or the fact that there are substantially different possibilities of
settlement of the claims or liabilities in question. Such conflicts can
arise in criminal cases as well as civil. The potential for conflict of
interest in representing multiple defendants in a criminal case is so grave
that ordinarily a lawyer should decline to represent more than one
codefendant. On the other hand, common representation of persons having
similar interests in civil litigation is proper if the requirements of
paragraph (b) are met.
[24] Ordinarily a lawyer may take inconsistent legal positions in
different tribunals at different times on behalf of different clients. The
mere fact that advocating a legal position on behalf of one client might
create precedent adverse to the interests of a client represented by the
lawyer in an unrelated matter does not create a conflict of interest. A
conflict of interest exists, however, if there is a significant risk that a
lawyer's action on behalf of one client will materially limit the lawyer's
effectiveness in representing another client in a different case; for
example, when a decision favoring one client will create a precedent likely
to seriously weaken the position taken on behalf of the other client.
Factors relevant in determining whether the clients need to be advised of
the risk include: where the cases are pending, whether the issue is
substantive or procedural, the temporal relationship between the matters,
the significance of the issue to the immediate and long-term interests of
the clients involved and the clients' reasonable expectations in retaining
the lawyer. If there is significant risk of material limitation, then
absent informed consent of the affected clients, the lawyer must refuse one
of the representations or withdraw from one or both matters.
[25] When a lawyer represents or seeks to represent a class of
plaintiffs or defendants in a class-action lawsuit, unnamed members of the
class are ordinarily not considered to be clients of the lawyer for
purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does
not typically need to get the consent of such a person before representing
a client suing the person in an unrelated matter. Similarly, a lawyer
seeking to represent an opponent in a
class action does not typically need the consent of an unnamed member of
the class whom the lawyer represents in an unrelated matter.
Nonlitigation Conflicts
[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in
contexts other than litigation. For a discussion of directly adverse
conflicts in transactional matters, see Comment [7]. Relevant factors in
determining whether there is significant potential for material limitation
include the duration and intimacy of the lawyer's relationship with the
client or clients involved, the functions being performed by the lawyer,
the likelihood that disagreements will arise and the likely prejudice to
the client from the conflict. The question is often one of proximity and
degree. See Comment [8].
[27] For example, conflict questions may arise in estate planning and
estate administration. A lawyer may be called upon to prepare wills for
several family members, such as husband and wife, and, depending upon the
circumstances, a conflict of interest may be present. In estate
administration the identity of the client may be unclear under the law of a
particular jurisdiction. Under one view, the client is the fiduciary; under
another view the client is the estate or trust, including its
beneficiaries. In order to comply with conflict of interest rules, the
lawyer should make clear the lawyer's relationship to the parties involved.
[28] Whether a conflict is consentable depends on the circumstances. For
example, a lawyer may not represent multiple parties to a negotiation whose
interests are fundamentally antagonistic to each other, but common
representation is permissible where the clients are generally aligned in
interest even though there is some difference in interest among them. Thus,
a lawyer may seek to establish or adjust a relationship between clients on
an amicable and mutually advantageous basis; for example, in helping to
organize a business in which two or more clients are entrepreneurs, working
out the financial reorganization of an enterprise in which two or more
clients have an interest or arranging a property distribution in settlement
of an estate. The lawyer seeks to resolve potentially adverse interests by
developing the parties' mutual interests. Otherwise, each party might have
to obtain separate representation, with the possibility of incurring
additional cost, complication or even litigation. Given these and other
relevant factors, the clients may prefer that the lawyer act for all of them.
See also Washington Comment [40].
Special Considerations in Common Representation
[29] In considering whether to represent multiple clients in the same
matter, a lawyer should be mindful that if the common representation fails
because the potentially adverse interests cannot be reconciled, the result
can be additional cost, embarrassment and recrimination. Ordinarily, the
lawyer will be forced to withdraw from representing all of the clients if
the common representation fails. In some situations, the risk of failure is
so great that multiple representation is plainly impossible. For example, a
lawyer cannot undertake common representation of clients where contentious
litigation or negotiations between them are imminent or contemplated.
Moreover, because the lawyer is required to be impartial between commonly
represented clients, representation of multiple clients is improper when it
is unlikely that impartiality can be maintained. Generally, if the
relationship between the parties has already assumed antagonism, the
possibility that the clients' interests can be adequately served by common
representation is not very good. Other relevant factors are whether the
lawyer subsequently will represent both parties on a continuing basis and
whether the situation involves creating or terminating a relationship
between the parties.
[30] A particularly important factor in determining the appropriateness
of common representation is the effect on client-lawyer confidentiality and
the attorney-client privilege. With regard to the attorney-client
privilege, the prevailing rule is that, as between commonly represented
clients, the privilege does not attach. Hence, it must be assumed that if
litigation eventuates between the clients, the privilege will not protect
any such communications, and the clients should be so advised.
[31] As to the duty of confidentiality, continued common representation
will almost certainly be inadequate if one client asks the lawyer not to
disclose to the other client information relevant to the common
representation. This is so because the lawyer has an equal duty of loyalty
to each client, and each client has the right to be informed of anything
bearing on the representation that might affect that client's interests and
the right to expect that the lawyer will use that information to that
client's benefit. See Rule 1.4. The lawyer should, at the outset of the
common representation and as part of the process of obtaining each client's
informed consent, advise each client that information will be shared and
that the lawyer will have to withdraw if one client decides that some
matter material to the representation should be kept from the other. In
limited circumstances, it may be appropriate for the lawyer to proceed with
the representation when the clients have agreed, after being properly
informed, that the lawyer will keep certain information confidential. For
example, the lawyer may reasonably conclude that failure to disclose one
client's trade secrets to another client will not adversely affect
representation involving a joint venture between the clients and agree to
keep that information confidential with the informed consent of both
clients.
[32] When seeking to establish or adjust a relationship between clients,
the lawyer should make clear that the lawyer's role is not that of
partisanship normally expected in other circumstances and, thus, that the
clients may be required to assume greater responsibility for decisions than
when each client is separately represented. Any limitations on the scope of
the representation made necessary as a result of the common representation
should be fully explained to the clients at the outset of the
representation. See Rule 1.2(c).
[33] Subject to the above limitations, each client in the common
representation has the right to loyal and diligent representation and the
protection of Rule 1.9 concerning the obligations to a former client. The
client also has the right to discharge the lawyer as stated in Rule 1.16.
See also Washington Comment [41].
Organizational Clients
[34] A lawyer who represents a corporation or other organization does
not, by virtue of that representation, necessarily represent any
constituent or affiliated organization, such as a parent or subsidiary. See
Rule 1.13(a). Thus, the lawyer for an organization is not barred from
accepting representation adverse to an affiliate in an unrelated matter,
unless the circumstances are such that the affiliate should also be
considered a client of the lawyer, there is an understanding between the
lawyer and the organizational client that the lawyer will avoid
representation adverse to the client's affiliates, or the lawyer's
obligations to either the organizational client or the new client are
likely to limit materially the lawyer's representation of the other client.
[35] A lawyer for a corporation or other organization who is also a
member of its board of directors should determine whether the
responsibilities of the two roles may conflict. The lawyer may be called on
to advise the corporation in matters involving actions of the directors.
Consideration should be given to the frequency with which such situations
may arise, the potential intensity of the conflict, the effect of the
lawyer's resignation from the board and the possibility of the
corporation's obtaining legal advice from another lawyer in such
situations. If there is material risk that the dual role will compromise
the lawyer's independence of professional judgment, the lawyer should not
serve as a director or should cease to act as the corporation's lawyer when
conflicts of interest arise. The lawyer should advise the other members of
the board that in some circumstances matters discussed at board meetings
while the lawyer is present in the capacity of director might not be
protected by the attorney-client privilege and that conflict of interest
considerations might require the lawyer's recusal as a director or might
require the lawyer and the lawyer's firm to decline representation of the
corporation in a matter.
Additional Washington Comments (36 - 41)
General Principles
[36] Notwithstanding Comment [3], lawyers providing short-term limited
legal services to a client under the auspices of a program sponsored by a
nonprofit organization or court are not normally required to systematically
screen for conflicts of interest before undertaking a representation. See
Comment [1] to Rule 6.5. See Rule 1.2(c) for requirements applicable to the
provision of limited legal services.
Identifying Conflicts of Interest: Material Limitation
[37] Use of the term "significant risk" in paragraph (a)(2) is not
intended to be a substantive change or diminishment in the standard
required under former Washington RPC 1.7(b), i.e., that "the representation
of the client may be materially limited by the lawyer's responsibilities
to another client or to a third person, or by the lawyer's own interests."
Prohibited Representations
[38] In Washington, a governmental client is not prohibited from
properly consenting to a representational conflict of interest.
Informed Consent
[39] Paragraph (b)(4) of the Rule differs slightly from the Model Rule
in that it expressly requires authorization from the other client before
any required disclosure of information relating to that client can be made.
Authorization to make a disclosure of information relating to the
representation requires the client's informed consent. See Rule 1.6(a).
Nonlitigation Conflicts
[40] Under Washington case law, in estate administration matters the
client is the personal representative of the estate.
Special Considerations in Common Representation
[41] Various legal provisions, including constitutional, statutory and
common law, may define the duties of government lawyers in representing
public officers, employees, and agencies and should be considered in
evaluating the nature and propriety of common representation.
[Amended effective September 1, 2006.]
RULE 1.8
CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
(a) A lawyer shall not enter into a business transaction with a client or
knowingly acquire an ownership, possessory, security or other pecuniary
interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are
fair and reasonable to the client and are fully disclosed and transmitted in
writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is
given a reasonable opportunity to seek the advice of independent legal counsel
on the transaction; and
(3) the client gives informed consent, in a writing signed by the client,
to the essential terms of the transaction and the lawyer's role in the
transaction, including whether the lawyer is representing the client in the transaction.
(b) A lawyer shall not use information relating to representation of a client
to the disadvantage of the client unless the client gives informed consent,
expect as permitted or required by these Rules.
(c) A lawyer shall not solicit any substantial gift from a client, including
a testamentary gift, or prepare on behalf of the client an instrument giving
the lawyer or a person related to the lawyer any substantial gift unless the
lawyer or other recipient of the gift is related to the client. For purposes of
this paragraph, related persons include spouse, child, grandchild, parent,
grandparent or other relative or individual with who the lawyer or the client
maintains a close, familial relationship.
(d) Prior to the conclusion of representation of a client, a lawyer shall not
make or negotiate an agreement giving the lawyer literary or media rights to a
portrayal or account based in substantial part on information relating to the
representation.
(e) A lawyer shall not, while representing a client in connection with
contemplated or pending litigation, advance or guarantee financial assistance
to a client, except that:
(1) a lawyer may advance or guarantee the expenses of litigation, including court
costs, expenses of investigation, expenses of medical examination, and costs of
obtaining and presenting evidence, provided the client remains ultimately liable
for such expenses; and
(2) in matters maintained as class actions only, repayment of expenses of
litigation may be contingent on the outcome of the matter.
(f) A lawyer shall not accept compensation for representing a client from one
other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional
judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as
required by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in
making an aggregate settlement of the claims of or against the clients, or in a
criminal case an aggregated agreement as to guilty or nolo contendere pleas,
unless each client gives informed consent, confirmed in writing. The lawyer's
disclosure shall include the existence and nature of all the claims or pleas
involved and the participation of each person in the settlement.
(h) A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a
client for malpractice unless permitted by law and the client is independently
represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an
unrepresented client or former client unless that person is advised in writing
of the desirability of seeking and is given a reasonable opportunity to seek
the advice of independent legal counsel in connection therewith.
(i) A lawyer shall not acquire a proprietary interest in the cause of action
or subject matter of litigation the lawyer is conducting for a client, except
that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
(j) A lawyer shall not:
(1) have sexual relations with a current client of the lawyer unless a
consensual sexual relationship existed between them at the time the client-
lawyer relationship commenced; or
(2) have sexual relations with a representative of a current client if the
sexual relations would, or would likely, damage or prejudice the client in the representation.
(3) For purposes of Rule 1.8(j), "lawyer" means any lawyer who assists in
the representation of the client, but does not include other firm members who
provide no such assistance.
(k) While lawyers are associated in a firm, a prohibition in the foregoing
paragraphs (a) through (i) that applies to anyone of them shall apply to all of them.
(l) A lawyer who is related to another lawyer as parent, child, sibling, or
spouse, or who has any other close familial or intimate relationship with
another lawyer, shall not represent a client in a matter directly adverse to a
person who the lawyer knows is represented by the related lawyer unless:
(1) the client gives informed consent to the representation; and
(2) the representation is not otherwise prohibited by Rule 1.7
(m) A lawyer shall not:
(1) make or participate in making an agreement with a governmental entity for the
delivery of indigent defense services if the terms of the agreement obligate the
contracting lawyer or law firm:
(i) to bear the cost of providing conflict counsel; or
(ii) to bear the cost of providing investigation or expert services,
unless a fair and reasonable amount for such costs is specifically designated
in the agreement in a manner that does not adversely affect the income
or compensation allocated to the lawyer, law firm, or law firm personnel; or
(2) knowingly accept compensation for the delivery of indigent defense services
from a lawyer who has entered into a current agreement in violation of paragraph (m)(1).
Comment
Business Transactions Between Client and Lawyer
[1] A lawyer's legal skill and training, together with the relationship of
trust and confidence between lawyer and client, create the possibility of
overreaching when the lawyer participates in a business, property or financial
transaction with a client, for example, a loan or sales transaction or a lawyer
investment on behalf of a client. The requirements of paragraph (a) must be met
even when the transaction is not closely related to the subject matter of the
representation, as when a lawyer drafting a will for a client learns that the
client needs money for unrelated expenses and offers to make a loan to the
client. The Rule applies to lawyers engaged in the sale of goods or services
related to the practice of law, for example, the sale of title insurance or
investment services to existing clients of the lawyer's legal practice. See
Rule 5.7. It also applies to lawyers purchasing property from estates they
represent. It does not apply to ordinary fee arrangements between client and
lawyer, which are governed by Rule 1.5, although its requirements must be met
when the lawyer accepts an interest in the client's business or other
nonmonetary property as payment of all or part of a fee. In addition, the Rule
does not apply to standard commercial transactions between the lawyer and the
client for products or services that the client generally markets to others,
for example, banking or brokerage services, medical services, products
manufactured or distributed by the client, and utilities' services. In such
transactions, the lawyer has no advantage in dealing with the client, and the
restrictions in paragraph (a) are unnecessary and impracticable.
[2] Paragraph (a)(1) requires that the transaction itself be fair to the
client and that its essential terms be communicated to the client, in writing,
in a manner that can be reasonably understood. Paragraph (a)(2) requires that
the client also be advised, in writing, of the desirability of seeking the
advice of independent legal counsel. It also requires that the client be given
a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that
the lawyer obtain the client's informed consent, in a writing signed by the
client, both to the essential terms of the transaction and to the lawyer's
role. When necessary, the lawyer should discuss both the material risks of the
proposed transaction, including any risk presented by the lawyer's involvement,
and the existence of reasonably available alternatives and should explain why
the advice of independent legal counsel is desirable. See Rule 1.0(e)
(definition of informed consent).
[3] The risk to a client is greatest when the client expects the lawyer to
represent the client in the transaction itself or when the lawyer's financial
interest otherwise poses a significant risk that the lawyer's representation of
the client will be materially limited by the lawyer's financial interest in the
transaction. Here the lawyer's role requires that the lawyer must comply, not
only with the requirements of paragraph (a), but also with the requirements of
Rule 1.7. Under that Rule, the lawyer must disclose the risks associated with
the lawyer's dual role as both legal adviser and participant in the
transaction, such as the risk that the lawyer will structure the transaction or
give legal advice in a way that favors the lawyer's interests at the expense of
the client. Moreover, the lawyer must obtain the client's informed consent. In
some cases, the lawyer's interest may be such that Rule 1.7 will preclude the
lawyer from seeking the client's consent to the transaction.
[4] If the client is independently represented in the transaction, paragraph
(a)(2) of this Rule is inapplicable, and the paragraph (a)(1) requirement for
full disclosure is satisfied either by a written disclosure by the lawyer
involved in the transaction or by the client's independent counsel. The fact
that the client was independently represented in the transaction is relevant in
determining whether the agreement was fair and reasonable to the client as
paragraph (a)(1) further requires.
Use of Information Related to Representation
[5] [Washington revision] Use of information relating to the representation
to the disadvantage of the client violates the lawyer's duty of loyalty.
Paragraph (b) applies when the information is used to benefit either the lawyer
or a third person, such as another client or business associate of the lawyer.
For example, if a lawyer learns that a client intends to purchase and develop
several parcels of land, the lawyer may not use that information to purchase
one of the parcels in competition with the client or to recommend that another
client make such a purchase. The Rule does not prohibit uses that do not
disadvantage the client. For example, a lawyer who learns a government agency's
interpretation of trade legislation during the representation of one client may
properly use that information to benefit other clients. Paragraph (b) prohibits
disadvantageous use of client information unless the client gives informed
consent, except as permitted or required by these Rules. See Rules 1.2(d), 1.6,
1.9(c), 3.3, 4.1(b), and 8.1.
Gifts to Lawyers
[6] A lawyer may accept a gift from a client, if the transaction meets
general standards of fairness. For example, a simple gift such as a present
given at a holiday or as a token of appreciation is permitted. If a client
offers the lawyer a more substantial gift, paragraph (c) does not prohibit the
lawyer from accepting it, although such a gift may be voidable by the client
under the doctrine of undue influence, which treats client gifts as
presumptively fraudulent. In any event, due to concerns about overreaching and
imposition on clients, a lawyer may not suggest that a substantial gift be made
to the lawyer or for the lawyer's benefit, except where the lawyer is related
to the client as set forth in paragraph (c).
[7] If effectuation of a substantial gift requires preparing a legal
instrument such as a will or conveyance the client should have the detached
advice that another lawyer can provide. The sole exception to this Rule is
where the client is a relative of the donee.
[8] This Rule does not prohibit a lawyer from seeking to have the lawyer or
a partner or associate of the lawyer named as executor of the client's estate
or to another potentially lucrative fiduciary position. Nevertheless, such
appointments will be subject to the general conflict of interest provision in
Rule 1.7 when there is a significant risk that the lawyer's interest in
obtaining the appointment will materially limit the lawyer's independent
professional judgment in advising the client concerning the choice of an
executor or other fiduciary. In obtaining the client's informed consent to the
conflict, the lawyer should advise the client concerning the nature and extent
of the lawyer's financial interest in the appointment, as well as the
availability of alternative candidates for the position.
Literary Rights
[9] An agreement by which a lawyer acquires literary or media rights
concerning the conduct of the representation creates a conflict between the
interests of the client and the personal interests of the lawyer. Measures
suitable in the representation of the client may detract from the publication
value of an account of the representation. Paragraph (d) does not prohibit a
lawyer representing a client in a transaction concerning literary property from
agreeing that the lawyer's fee shall consist of a share in ownership in the
property, if the arrangement conforms to Rule 1.5 and paragraphs (a) and (i).
Financial Assistance
[10] [Washington Revision] Lawyers may not subsidize lawsuits or
administrative proceedings brought on behalf of their clients, including making
or guaranteeing loans to their clients for living expenses, because to do so
would encourage clients to pursue lawsuits that might not otherwise be brought
and because such assistance gives lawyers too great a financial stake in the
litigation. See Washington Comment [21].
Person Paying for a Lawyer's Services
[11] Lawyers are frequently asked to represent a client under circumstances
in which a third person will compensate the lawyer, in whole or in part. The
third person might be a relative or friend, an indemnitor (such as a liability
insurance company) or a co-client (such as a corporation sued along with one or
more of its employees). Because third-party payers frequently have interests
that differ from those of the client, including interests in minimizing the
amount spent on the representation and in learning how the representation is
progressing, lawyers are prohibited from accepting or continuing such
representations unless the lawyer determines that there will be no interference
with the lawyer's independent professional judgment and there is informed
consent from the client. See also Rule 5.4(c) (prohibiting interference with a
lawyer's professional judgment by one who recommends, employs or pays the
lawyer to render legal services for another).
[12] Sometimes, it will be sufficient for the lawyer to obtain the client's
informed consent regarding the fact of the payment and the identity of the
third-party payer. If, however, the fee arrangement creates a conflict of
interest for the lawyer, then the lawyer must comply with Rule. 1.7. The lawyer
must also conform to the requirements of Rule 1.6 concerning confidentiality.
Under Rule 1.7(a), a conflict of interest exists if there is significant risk
that the lawyer's representation of the client will be materially limited by
the lawyer's own interest in the fee arrangement or by the lawyer's
responsibilities to the third-party payer (for example, when the third-party
payer is a co-client). Under Rule 1.7(b), the lawyer may accept or continue the
representation with the informed consent of each affected client, unless the
conflict is nonconsentable under that paragraph. Under Rule 1.7(b), the
informed consent must be confirmed in writing.
Aggregate Settlements
[13] Differences in willingness to make or accept an offer of settlement are
among the risks of common representation of multiple clients by a single
lawyer. Under Rule 1.7, this is one of the risks that should be discussed
before undertaking the representation, as part of the process of obtaining the
clients' informed consent. In addition, Rule 1.2(a) protects each client's
right to have the final say in deciding whether to accept or reject an offer of
settlement and in deciding whether to enter a guilty or nolo contendere plea in
a criminal case. The rule stated in this paragraph is a corollary of both these
Rules and provides that, before any settlement offer or plea bargain is made or
accepted on behalf of multiple clients, the lawyer must inform each of them
about all the material terms of the settlement, including what the other
clients will receive or pay if the settlement or plea offer is accepted. See
also Rule 1.0(e) (definition of informed consent). Lawyers representing a class
of plaintiffs or defendants, or those proceeding derivatively, may not have a
full client-lawyer relationship with each member of the class; nevertheless,
such lawyers must comply with applicable rules regulating notification of class
members and other procedural requirements designed to ensure adequate
protection of the entire class.
Limiting Liability and Settling Malpractice Claims
[14] [Washington revision] Agreements prospectively limiting a lawyer's
liability for malpractice are prohibited unless permitted by law and the client
is independently represented in making the agreement because they are likely to
undermine competent and diligent representation. Also, many clients are unable
to evaluate the desirability of making such an agreement before a dispute has
arisen, particularly if they are then represented by the lawyer seeking the
agreement. This paragraph does not, however, prohibit a lawyer from entering
into an agreement with the client to arbitrate legal malpractice claims,
provided such agreements are enforceable and the client is fully informed of
the scope and effect of the agreement. Nor does this paragraph limit the
ability of lawyers to practice in the form of a limited-liability entity, where
permitted by law, provided that each lawyer remains personally liable to the
client for his or her own conduct and the firm complies with any conditions
required by law, such as provisions requiring client notification or
maintenance of adequate liability insurance. Nor does it prohibit an agreement
in accordance with Rule 1.2 that defines the scope of the representation,
although a definition of scope that makes the obligations of representation
illusory will amount to an attempt to limit liability.
[15] Agreements settling a claim or a potential claim for malpractice are
not prohibited by this Rule. Nevertheless, in view of the danger that a lawyer
will take unfair advantage of an unrepresented client or former client, the
lawyer must first advise such a person in writing of the appropriateness of
independent representation in connection with such a settlement. In addition,
the lawyer must give the client or former client a reasonable opportunity to
find and consult independent counsel.
Acquiring Proprietary Interest in Litigation
[16] Paragraph (i) states the traditional general rule that lawyers are
prohibited from acquiring a proprietary interest in litigation. Like paragraph
(e), the general rule has its basis in common law champerty and maintenance and
is designed to avoid giving the lawyer too great an interest in the
representation. In addition, when the lawyer acquires an ownership interest in
the subject of the representation, it will be more difficult for a client to
discharge the lawyer if the client so desires. The Rule is subject to specific
exceptions developed in decisional law and continued in these Rules. The
exception for certain advances of the costs of litigation is set forth in
paragraph (e). In addition, paragraph (i) sets forth exceptions for liens
authorized by law to secure the lawyer's fees or expenses and contracts for
reasonable contingent fees. The law of each jurisdiction determines which liens
are authorized by law. These may include liens granted by statute, liens
originating in common law and liens acquired by contract with the client. When
a lawyer acquires by contract a security interest in property other than that
recovered through the lawyer's efforts in the litigation, such an acquisition
is a business or financial transaction with a client and is governed by the
requirements of paragraph (a). Contracts for contingent fees in civil cases are
governed by Rule 1.5.
Client-Lawyer Sexual Relationships
[17] The relationship between lawyer and client is a fiduciary one in which
the lawyer occupies the highest position of trust and confidence. The
relationship is almost always unequal; thus, a sexual relationship between
lawyer and client can involve unfair exploitation of the lawyer's fiduciary
role, in violation of the lawyer's basic ethical obligation not to use the
trust of the client to the client's disadvantage. In addition, such a
relationship presents a significant danger that, because of the lawyer's
emotional involvement, the lawyer will be unable to represent the client
without impairment of the exercise of independent professional judgment.
Moreover, a blurred line between the professional and personal relationships
may make it difficult to predict to what extent client confidences will be
protected by the attorney-client evidentiary privilege, since client
confidences are protected by privilege only when they are imparted in the
context of the client-lawyer relationship. Because of the significant danger of
harm to client interests and because the client's own emotional involvement
renders it unlikely that the client could give adequate informed consent, this
Rule prohibits the lawyer from having sexual relations with a client regardless
of whether the relationship is consensual and regardless of the absence of
prejudice to the client.
[18] Sexual relationships that predate the client-lawyer relationship are
not prohibited. Issues relating to the exploitation of the fiduciary
relationship and client dependency are diminished when the sexual relationship
existed prior to the commencement of the client-lawyer relationship. However,
before proceeding with the representation in these circumstances, the lawyer
should consider whether the lawyer's ability to represent the client will be
materially limited by the relationship. See Rule 1.7(a)(2).
[19] [Washington revision] When the client is an organization, paragraph (j)
of this Rule applies to a lawyer for the organization (whether inside or
outside counsel). For purposes of this Rule, "representative of a current
client" will generally be a constituent of the organization who supervises,
directs or regularly consults with that lawyer on the organization's legal
matters. See Comment [1] to Rule 1.13 (identifying the constituents of an
organizational client).
See also Washington Comments [22] and [23].
Imputation of Prohibitions
[20] Under paragraph (k), a prohibition on conduct by an individual lawyer
in paragraphs (a) through (i) also applies to all lawyers associated in a firm
with the personally prohibited lawyer. For example, one lawyer in a firm may
not enter into a business transaction with a client of another member of the
firm without complying with paragraph (a), even if the first lawyer is not
personally involved in the representation of the client. The prohibition set
forth in paragraph (j) is personal and is not applied to associated lawyers.
Additional Washington Comments (21-29)
Financial Assistance
[21] Paragraph (e) of Washington's Rule differs form the Model Rule.
Paragraph (e) is based on former Washington RPC 1.8(e). The minor structural
modifications to the general prohibition on providing financial assistance to a
client do not represent a change in Washington law, and paragraph (e) is
intended to preserve prior interpretations of the Rule and prior Washington practice.
Client-Lawyer Sexual Relationships
[22] Paragraph (j)(2) of Washington's Rule, which prohibits sexual
relationships with a representative of an organizational client, differs from
the Model Rule. Comment [19] to Model Rule 1.8 was revised to be consistent
with the Washington Rule.
[23] Paragraph (j)(3) of the Rule specifies that the prohibition applies
with equal force to any lawyer who assists in the representation of the client,
but the prohibition expressly does not apply to other members of a firm who
have not assisted in the representation.
Personal Relationships
[24] Model Rule 1.8 does not contain a provision equivalent to paragraph (l)
of Washington's Rule. Paragraph (l) prohibits representations based on a
lawyer's personal conflict arising from his or her relationship with another
lawyer. Paragraph (l) is a revised version of former Washington RPC 1.8(i). See
also Comment [11] to Rule 1.7.
Indigent Defense Contracts
[25] Model Rule 1.8 does not contain a provision equivalent to paragraph (m)
of Washington's Rule. Paragraph (m) specifies that it is a conflict of interest
for a lawyer to enter into or accept compensation under an indigent defense
contract that does not provide for the payment of funds, outside of the
contract, to compensate conflict counsel for fees and expenses.
[26] Where there is a right to a lawyer in court proceedings, the right
extends to those who are financially unable to obtain one. This right is
affected in some Washington counties and municipalities through indigent
defense contracts, i.e., contracts entered into between lawyers or law firms
willing to provide defense services to those financially unable to obtain them
and the governmental entities obliged to pay for those services. When a lawyer
or law firm providing indigent defense services determines that a disqualifying
conflict of interest precludes representation of a particular client, the
lawyer or law firm must withdraw and substitute counsel must be obtained for
the client. See Rule 1.16. In these circumstances, substitute counsel is
typically known as "conflict counsel."
[27] An indigent defense contract by which the contracting lawyer or law
firm assumes the obligation to pay conflict counsel from the proceeds of the
contract, without further payment from the governmental entity, creates an
acute financial disincentive for the lawyer either to investigate or declare
the existence of actual or potential conflicts of interest requiring the
employment of conflict counsel. For this reason, such contracts involve an
inherent conflict between the interests of the client and the personal
interests of the lawyer. These dangers warrant a prohibition on making such an
agreement or accepting compensation for the delivery of indigent defense
services from a lawyer that has done so. See ABA Standards for Criminal
Justice, Std. 5-3.3(b)(vii) (3d ed. 1992) (elements of a contract for defense
services should include "a policy for conflict of interest cases and the
provision of funds outside of the contract to compensate conflict counsel for
fees and expenses"); People v. Barboza, 29 Cal.3d 375, 173 Cal. Rptr. 458, 627
P.2d 188 (Cal. 1981) (structuring public defense contract so that more money is
available for operation of office if fewer outside attorneys are engaged
creates "inherent and irreconcilable conflicts of interest").
[28] Similar conflict-of-interest considerations apply when indigent defense
contracts require the contracting lawyer or law firm to pay for the costs and
expenses of investigation and expert services from the general proceeds of the
contract. Paragraph (m)(1)(ii) prohibits agreements that do not provide that
such services are to be funded separately from the amounts designated as
compensation to the contracting lawyer or law firm.
[29] Because indigent defense contracts involve accepting compensation for
legal services from a third-party payer, the lawyer must also conform to the
requirements of paragraph (f). See also Comments [11][12].
[Amended effective September 1, 2006; April 24, 2007; September 1, 2008; September 1, 2011.]
RULE 1.9
DUTIES TO FORMER CLIENTS
(a) A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially related
matter in which that person's interests are materially adverse to the
interests of the former client unless the former client gives informed
consent, confirmed in writing.
(b) A lawyer shall not knowingly represent a person in the same or a
substantially related matter in which a firm with which the lawyer
formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom that lawyer had acquired information protected by
Rules 1.6 and 1.9(c) that is material to the matter; unless the former
client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in a matter
shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these Rules would permit or
require with respect to a client, or when the information has become
generally known; or
(2) reveal information relating to the representation except as these
Rules would permit or require with respect to a client.
Comment
[1] After termination of a client-lawyer relationship, a lawyer has
certain continuing duties with respect to confidentiality and conflicts of
interest and thus may not represent another client except in conformity
with this Rule. Under this Rule, for example, a lawyer could not properly
seek to rescind on behalf of a new client a contract drafted on behalf of
the former client. So also a lawyer who has prosecuted an accused person
could not properly represent the accused in a subsequent civil action
against the government concerning the same transaction. Nor could a lawyer
who has represented multiple clients in a matter represent one of the
clients against the others in the same or a substantially related matter
after a dispute arose among the clients in that matter, unless all
affected clients give informed consent. See Comment [9]. Current and
former government lawyers must comply with this Rule to the extent
required by Rule 1.11.
[2] The scope of a "matter" for purposes of this Rule depends on the
facts of a particular situation or transaction. The lawyer's involvement
in a matter can also be a question of degree. When a lawyer has been
directly involved in a specific transaction, subsequent representation of
other clients with materially adverse interests in that transaction
clearly is prohibited. On the other hand, a lawyer who recurrently handled
a type of problem for a former client is not precluded from later
representing another client in a factually distinct problem of that type
even though the subsequent representation involves a position adverse to
the prior client. Similar considerations can apply to the reassignment of
military lawyers between defense and prosecution functions within the same
military jurisdictions. The underlying question is whether the lawyer was
so involved in the matter that the subsequent representation can be justly
regarded as a changing of sides in the matter in question.
[3] Matters are "substantially related" for purposes of this Rule if
they involve the same transaction or legal dispute or if there otherwise
is a substantial risk that confidential factual information as would
normally have been obtained in the prior representation would materially
advance the client's position in the subsequent matter. For example, a
lawyer who has represented a businessperson and learned extensive private
financial information about that person may not then represent that
person's spouse in seeking a divorce. Similarly, a lawyer who has
previously represented a client in securing environmental permits to build
a shopping center would be precluded from representing neighbors seeking
to oppose rezoning of the property on the basis of environmental
considerations; however, the lawyer would not be precluded, on the grounds
of substantial relationship, from defending a tenant of the completed
shopping center in resisting eviction for nonpayment of rent. Information
that has been disclosed to the public or to other parties adverse to the
former client ordinarily will not be disqualifying. Information acquired
in a prior representation may have been rendered obsolete by the passage
of time, a circumstance that may be relevant in determining whether two
representations are substantially related. In the case of an
organizational client, general knowledge of the client's policies and
practices ordinarily will not preclude a subsequent representation; on the
other hand, knowledge of specific facts gained in a prior representation
that are relevant to the matter in question ordinarily will preclude such
a representation. A former client is not required to reveal the
confidential information learned by the lawyer in order to establish a
substantial risk that the lawyer has confidential information to use in
the subsequent matter. A conclusion about the possession of such
information may be based on the nature of the services the lawyer provided
the former client and information that would in ordinary practice be
learned by a lawyer providing such services.
Lawyers Moving Between Firms
[4] When lawyers have been associated within a firm but then end their
association, the question of whether a lawyer should undertake
representation is more complicated. There are several competing
considerations. First, the client previously represented by the former
firm must be reasonably assured that the principle of loyalty to the
client is not compromised. Second, the rule should not be so broadly cast
as to preclude other persons from having reasonable choice of legal
counsel. Third, the rule should not unreasonably hamper lawyers from
forming new associations and taking on new clients after having left a
previous association. In this connection, it should be recognized that
today many lawyers practice in firms, that many lawyers to some degree
limit their practice to one field or another, and that many move from one
association to another several times in their careers. If the concept of
imputation were applied with unqualified rigor, the result would be
radical curtailment of the opportunity of lawyers to move from one
practice setting to another and of the opportunity of clients to change counsel.
[5] [Washington revision] Paragraph (b) operates to disqualify the
lawyer only when the lawyer involved has actual knowledge of information
protected by Rules 1.6 and 1.9(c). Thus, if a lawyer while with one firm
acquired no knowledge or information relating to a particular client of
the firm, and that lawyer later joined another firm, neither the lawyer
individually nor the second firm is disqualified from representing another
client in the same or a related matter even though the interests of the
two clients conflict. See Rule 1.10(e) and (b) for the restrictions on a
firm when a lawyer initiates an association with the firm or has
terminated an association with the firm.
[6] Application of paragraph (b) depends on a situation's particular
facts, aided by inferences, deductions or working presumptions that
reasonably may be made about the way in which lawyers work together. A
lawyer may have general access to files of all clients of a law firm and
may regularly participate in discussions of their affairs; it should be
inferred that such a lawyer in fact is privy to all information about all
the firm's clients. In contrast, another lawyer may have access to the
files of only a limited number of clients and participate in discussions
of the affairs of no other clients; in the absence of information to the
contrary, it should be inferred that such a lawyer in fact is privy to
information about the clients actually served but not those of other
clients. In such an inquiry, the burden of proof should rest upon the firm
whose disqualification is sought.
[7] Independent of the question of disqualification of a firm, a lawyer
changing professional association has a continuing duty to preserve
confidentiality of information about a client formerly represented.
See Rules 1.6 and 1.9(c).
[8] Paragraph (c) provides that information acquired by the lawyer in
the course of representing a client may not subsequently be used or
revealed by the lawyer to the disadvantage of the client. However, the
fact that a lawyer has once served a client does not preclude the lawyer
from using generally known information about that client when later
representing another client.
[9] [Washington revision] The provisions of this Rule are for the
protection of former clients and can be waived if the client gives
informed consent, which consent must be confirmed in writing under
paragraphs (a) and (b). See Rule 1.0(e). With regard to disqualification
of a firm with which a lawyer is or was formerly associated, see Rule 1.10.
[Amended effective September 1, 2006.]
RULE 1.10
IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE
(a) Except as provided in paragraph (e), while lawyers are associated in a
firm, none of them shall knowingly represent a client when any one of them
practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless
the prohibition is based on a personal interest of the disqualified lawyer and
does not present a significant risk of materially limiting the representation
of the client by the remaining lawyers in the firm.
(b) When a lawyer has terminated an association with a firm, the firm is not
prohibited from thereafter representing a person with interests materially
adverse to those of a client represented by the formerly associated lawyer and
not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the
formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by Rules
1.6 and 1.9(c) that is material to the matter.
(c) A disqualification prescribed by this rule may be waived by the affected
client under the conditions stated in Rule 1.7.
(d) The disqualification of lawyers associated in a firm with former or
current government lawyers is governed by Rule 1.11.
(e) When the prohibition on representation under paragraph (a) is based on
Rule 1.9(a) or (b), and arises out of the disqualified lawyer's association
with a prior firm, no other lawyer in the firm shall knowingly represent a
person in a matter in which that lawyer is disqualified unless:
(1) the personally disqualified lawyer is screened by effective means from
participation in the matter and is apportioned no part of the fee therefrom;
(2) the former client of the personally disqualified lawyer receives
notice of the conflict and the screening mechanism used to prohibit
dissemination of information relating to the former representation;
(3) the firm is able to demonstrate by convincing evidence that no
material information relating to the former representation was transmitted by
the personally disqualified lawyer before implementation of the screening
mechanism and notice to the former client.
Any presumption that information protected by Rules 1.6 and 1.9(c) has been
or will be transmitted may be rebutted if the personally disqualified lawyer
serves on his or her former law firm and former client an affidavit attesting
that the personally disqualified lawyer will not participate in the matter and
will not discuss the matter or the representation with any other lawyer or
employee of his or her current law firm, and attesting that during the period
of the lawyer's personal disqualification those lawyers or employees who do
participate in the matter will be apprised that the personally disqualified
lawyer is screened from participating in or discussing the matter. Such
affidavit shall describe the procedures being used effectively to screen the
personally disqualified lawyer. Upon request of the former client, such
affidavit shall be updated periodically to show actual compliance with the
screening procedures. The law firm, the personally disqualified lawyer, or the
former client may seek judicial review in a court of general jurisdiction of
the screening mechanism used, or may seek court supervision to ensure that
implementation of the screening procedures has occurred and that effective
actual compliance has been achieved.
Comment
Definition of "Firm"
[1] For purposes of the Rules of Professional Conduct, the term "firm"
denotes lawyers in a law partnership, professional corporation, sole
proprietorship or other association authorized to practice law; or lawyers
employed in a legal services organization or the legal department of a
corporation or other organization. See Rule 1.0(c). Whether two or more lawyers
constitute a firm within this definition can depend on the specific facts. See
Rule 1.0, Comments [2] - [4].
Principles of Imputed Disqualification
[2] [Washington revision] The rule of imputed disqualification stated in
paragraph (a) gives effect to the principle of loyalty to the client as it
applies to lawyers who practice in a law firm. Such situations can be
considered from the premise that a firm of lawyers is essentially one lawyer
for purposes of the rules governing loyalty to the client, or from the premise
that each lawyer is vicariously bound by the obligation of loyalty owed by each
lawyer with whom the lawyer is associated. Paragraph (a) operates only among
the lawyers currently associated in a firm. When a lawyer moves from one firm
to another, the situation is governed by Rules 1.9(b) and 1.10(b) and (e).
[3] The rule in paragraph (a) does not prohibit representation where neither
questions of client loyalty nor protection of confidential information are
presented. Where one lawyer in a firm could not effectively represent a given
client because of strong political beliefs, for example, but that lawyer will
do no work on the case and the personal beliefs of the lawyer will not
materially limit the representation by others in the firm, the firm should not
be disqualified. On the other hand, if an opposing party in a case were owned
by a lawyer in the law firm, and others in the firm would be materially limited
in pursuing the matter because of loyalty to that lawyer, the personal
disqualification of the lawyer would be imputed to all others in the firm.
[4] [Reserved. See Washington Comment [11].]
[5] Rule 1.10(b) operates to permit a law firm, under certain circumstances,
to represent a person with interests directly adverse to those of a client
represented by a lawyer who formerly was associated with the firm. The Rule
applies regardless of when the formerly associated lawyer represented the
client. However, the law firm may not represent a person with interests adverse
to those of a present client of the firm, which would violate Rule 1.7.
Moreover, the firm may not represent the person where the matter is the same or
substantially related to that in which the formerly associated lawyer
represented the client and any other lawyer currently in the firm has material
information protected by Rules 1.6 and 1.9(c).
[6] [Washington revision] Rule 1.10(c) removes imputation with the informed
consent of the affected client or former client under the conditions stated in
Rule 1.7. The conditions stated in Rule 1.7 require the lawyer to determine
that the representation is not prohibited by Rule 1.7(b) and that each affected
client or former client has given informed consent to the representation,
confirmed in writing. In some cases, the risk may be so severe that the
conflict may not be cured by client consent. For a definition of informed
consent, see Rule 1.0(e).
[7] Where a lawyer has joined a private firm after having represented the
government, imputation is governed by Rule 1.11(b) and (c), not this Rule.
Under Rule 1.11(d), where a lawyer represents the government after having
served clients in private practice, nongovernmental employment or in another
government agency, former-client conflicts are not imputed to government
lawyers associated with the individually disqualified lawyer.
[8] Where a lawyer is prohibited from engaging in certain transactions under
Rule 1.8, paragraph (k) of that Rule, and not this Rule, determines whether
that prohibition also applies to other lawyers associated in a firm with the
personally prohibited lawyer.
Additional Washington Comments (9 - 13)
Principles of Imputed Disqualification
[9] The screening provisions in Washington RPC 1.10 differ from those in
the Model Rule. Washington's adoption of a nonconsensual screening provision
in 1993 preceded the ABA's 2009 adoption of a similar approach in the Model
Rules. Washington's rule was amended and the screening provision recodified
as paragraph (e) in 2006, and paragraphs (a) and (e) were further amended in
2011 to conform more closely to the Model Rules version. None of the
amendments to this Rule, however, represents a change in Washington law. The
Rule preserves Washington practice established in 1993 with respect to
screening by allowing a lawyer personally disqualified from representing a
client based on the lawyer's prior association with a firm to be screened
from a representation to be undertaken by other members of the lawyer's new
firm under the circumstances set forth in paragraph (e). See Washington Comment [10].
[10] Washington's RPC 1.10 was amended in 1993 to permit representation with
screening under certain circumstances. Rule 1.10(e) retains the screening
mechanism adopted as Washington RPC 1.10(b) in 1993, thus allowing a firm to
represent a client with whom a lawyer in the firm has a conflict based on his
or her association with a prior firm if the lawyer is effectively screened from
participation in the representation, is apportioned no part of the fee earned
from the representation and the client of the former firm receives notice of
the conflict and the screening mechanism. However, prior to undertaking the
representation, non-disqualified firm members must evaluate the firm's ability
to provide competent representation even if the disqualified member can be
screened in accordance with this Rule. While Rule 1.10 does not specify the
screening mechanism to be used, the law firm must be able to demonstrate that
it is adequate to prevent the personally disqualified lawyer from receiving or
transmitting any confidential information or from participating in the
representation in any way. The screening mechanism must be in place over the
life of the representation at issue and is subject to judicial review at the
request of any of the affected clients, law firms, or lawyers. However, a
lawyer or law firm may rebut the presumption that information relating to the
representation has been transmitted by serving an affidavit describing the
screening mechanism and affirming that the requirements of the Rule have been met.
[11] Under Rule 5.3, this Rule also applies to nonlawyer assistants and
lawyers who previously worked as nonlawyers at a law firm. See Daines v.
Alcatel, 194 F.R.D. 678 (E.D. Wash. 2000); Richard v. Jain, 168 F. Supp. 2d
1195 (W.D. Wash. 2001).
[12] In serving an affidavit permitted by paragraph (e), a lawyer may serve
the affidavit on the former law firm alone (without simultaneously serving the
former client directly) if the former law firm continues to represent the
former client and the lawyer contemporaneously requests in writing that the
former law firm provide a copy of the affidavit to the former client. If the
former client is no longer represented by the former law firm or if the lawyer
has reason to believe the former law firm will not promptly provide the former
client with a copy of the affidavit, then the affidavit must be served directly
on the former client also. Serving the affidavit on a represented former client
does not violate Rule 4.2 because the communication with the former client is
not about the "subject of the representation" and the notice is "authorized . . .
by law," i.e., the Rules of Professional Conduct.
[13] Rule 1.8(l) conflicts are not imputed to other members of a firm under
paragraph (a) of this Rule unless the relationship creates a conflict of
interest for the individual lawyer under Rule 1.7 and also presents a
significant risk of materially limiting the representation of the client by the
remaining lawyers in the firm.
[Amended effective September 1, 2006; September 1, 2011.]
RULE 1.11
SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS
AND EMPLOYEES
(a) Except as law may otherwise expressly permit, a lawyer who has
formerly served as a public officer or employees of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter
in which the lawyer participated personally and substantially as a public
officer or employee, unless the appropriate government agency gives its
informed consent, confirmed in writing, to the representation.
(b) When a lawyer is disqualified from representation under paragraph
(a), no lawyer in a firm with which that lawyer is associated may knowingly
undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is timely screened from any participation
in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government
agency to enable it to ascertain compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly permit, a lawyer having
information that the lawyer knows is confidential government information
about a person acquired when the lawyer was a public officer or employee,
may not represent a private client whose interests are adverse to that
person in a matter in which the information could be used to the material
disadvantage of that person. As used in this Rule the term "confidential
government information" means information that has been obtained under
governmental authority and which, at the time this Rule is applied, the
government is prohibited by law from disclosing to the public or has a
legal privilege not to disclose and which is not otherwise available to the
public. A firm with which that lawyer is associated may undertake or
continue representation in the matter only if the disqualified lawyer is
timely screened from any participation in the matter and is apportioned no
part of the fee therefrom.
(d) Except as law may otherwise expressly permit, a lawyer currently
serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the lawyer participated
personally and substantially while in private practice or nongovernmental
employment, unless the appropriate government agency gives its informed
consent, confirmed writing; or
(ii) negotiate for private employment with any person who is
involved as a party or as lawyer for a party in a matter in which the
lawyer is participating personally and substantially, except that a lawyer
serving as a law clerk to a judge, other adjudicative officer or arbitrator
may negotiate for private employment as permitted by Rule 1.12(b) and
subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy, investigation,
charge, accusation, arrest or other particular matter involving a specific
party or parties; and
(2) any other matter covered by the conflict of interest rules of the
appropriate government agency.
Comment
[1] A lawyer who has served or is currently serving as a public officer
or employee is personally subject to the Rules of Professional Conduct,
including the prohibition against concurrent conflicts of interest stated
in Rule 1.7. In addition, such a lawyer may be subject to statutes and
government regulations regarding conflict of interest. Such statutes and
regulations may circumscribe the extent to which the government agency may
give consent under this Rule. See Rule 1.0(e) for the definition of informed consent.
[2] Paragraphs (a)(1), (a)(2) and (d)(1) restate the obligations of an
individual lawyer who has served or is currently serving as an officer or
employee of the government toward a former government or private client.
Rule 1.10 is not applicable to the conflicts of interest addressed by this
Rule. Rather, paragraph (b) sets forth a special imputation rule for former
government lawyers that provides for screening and notice. Because of the
special problems raised by imputation within a government agency, paragraph
(d) does not impute the conflicts of a lawyer currently serving as an
officer or employee of the government to other associated government
officers or employees, although ordinarily it will be prudent to screen such lawyers.
[3] Paragraphs (a)(2) and (d)(2) apply regardless of whether a lawyer is
adverse to a former client and are thus designed not only to protect the
former client, but also to prevent a lawyer from exploiting public office
for the advantage of another client. For example, a lawyer who has pursued
a claim on behalf of the government may not pursue the same claim on behalf
of a later private client after the lawyer has left government service,
except when authorized to do so by the government agency under paragraph
(a). Similarly, a lawyer who has pursued a claim on behalf of a private
client may not pursue the claim on behalf of the government, except when
authorized to do so by paragraph (d). As with paragraphs (a)(1) and (d)(1),
Rule 1.10 is not applicable to the conflicts of interest addressed by these paragraphs.
[4] This Rule represents a balancing of interests. On the one hand,
where the successive clients are a government agency and another client,
public or private, the risk exists that power or discretion vested in that
agency might be used for the special benefit of the other client. A lawyer
should not be in a position where benefit to the other client might affect
performance of the lawyer's professional functions on behalf of the
government. Also, unfair advantage could accrue to the other client by
reason of access to confidential government information about the client's
adversary obtainable only through the lawyer's government service. On the
other hand, the rules governing lawyers presently or formerly employed by a
government agency should not be so restrictive as to inhibit transfer of
employment to and from the government. The government has a legitimate need
to attract qualified lawyers as well as to maintain high ethical standards.
Thus a former government lawyer is disqualified only from particular
matters in which the lawyer participated personally and substantially. The
provisions for screening and waiver in paragraph (b) are necessary to
prevent the disqualification rule from imposing too severe a deterrent
against entering public service. The limitation of disqualification in
paragraphs (a)(2) and (d)(2) to matters involving a specific party or
parties, rather than extending disqualification to all substantive issues
on which the lawyer worked, serves a similar function.
[5] When a lawyer has been employed by one government agency and then
moves to a second government agency, it may be appropriate to treat that
second agency as another client for purposes of this Rule, as when a lawyer
is employed by a city and subsequently is employed by a federal agency.
However, because the conflict of interest is governed by paragraph (d), the
latter agency is not required to screen the lawyer as paragraph (b)
requires a law firm to do. The question of whether two government agencies
should be regarded as the same or different clients for conflict of
interest purposes is beyond the scope of these Rules. See Rule 1.13, Comment [9].
[6] Paragraphs (b) and (c) contemplate a screening arrangement. See Rule
1.0(k) (requirements for screening procedures). These paragraphs do not
prohibit a lawyer from receiving a salary or partnership share established
by prior independent agreement, but that lawyer may not receive
compensation directly relating the lawyer's compensation to the fee in the
matter in which the lawyer is disqualified.
[7] Notice, including a description of the screened lawyer's prior
representation and of the screening procedures employed, generally should
be given as soon as practicable after the need for screening becomes apparent.
[8] Paragraph (c) operates only when the lawyer in question has
knowledge of the information, which means actual knowledge; it does not
operate with respect to information that merely could be imputed to the lawyer.
[9] Paragraphs (a) and (d) do not prohibit a lawyer from jointly
representing a private party and a government agency when doing so is
permitted by Rule 1.7 and is not otherwise prohibited by law.
[10] For purposes of paragraph (e) of this Rule, a "matter" may continue
in another form. In determining whether two particular matters are the
same, the lawyer should consider the extent to which the matters involve
the same basic facts, the same or related parties, and the time elapsed.
[Amended effective September 1, 2006.]
RPC RULE 1.12
FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER THIRD-PARTY NEUTRAL
(a) Except as stated in paragraph (d), a lawyer shall not represent
anyone in connection with a matter in which the lawyer participated
personally and substantially as a judge or other adjudicative officer or
law clerk to such a person or as an arbitrator, mediator or other third-
party neutral, unless all parties to the proceeding give informed consent
confirmed in writing.
(b) A lawyer shall not negotiate for employment with any person who is
involved as a party or as lawyer for a party in a matter in which the
lawyer is participating personally and substantially as a judge or other
adjudicative officer or as an arbitrator, mediator or other third-party
neutral. A lawyer serving as a law clerk to a judge, other adjudicative
officer may negotiate for employment with a party or lawyer involved in a
matter in which the clerk is participating personally and substantially,
but only after the lawyer has notified the judge or other adjudicative officer.
(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm
with which that lawyer is associated may knowingly undertake or continue
representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation
in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any
appropriate tribunal to enable them to ascertain compliance with the
provisions of this Rule.
(d) An arbitrator selected as a partisan of a party in a multimember
arbitration panel is not prohibited from subsequently representing that party.
Comment
[1] [Washington revision] This Rule generally parallels Rule 1.11. The
term "personally and substantially" signifies that a judge who was a member
of a multimember court, and thereafter left judicial officer to practice
law, is not prohibited from representing a client in a matter pending in
the court, but in which the former judge did not participate. So also the
fact that a former judge exercised administrative responsibility in a court
does not prevent the former judge from acting as a lawyer in a matter where
the judge had previously exercised remote or incidental administrative
responsibility that did not affect the merits. Compare the Comment to Rule
1.11. The term "adjudicative officer" includes such officials as judges pro
tempore, referees, special masters, hearing officers and other parajudicial
officers, and also lawyers who serve as part-time judges. There are
corresponding provisions in the Code of Judicial Conduct. See CJC
paragraphs (A)(1)(b) and (2)(b) (application of the Code of Judicial
Conduct to part-time and pro tempore judges).
[2] Like former judges, lawyers who have served as arbitrators, mediators
or other third-party neutrals may be asked to represent a client in a
matter in which the lawyer participated personally and substantially. This
Rule forbids such representation unless all of the parties to the
proceedings give their informed consent, confirmed in writing. See Rule
1.0(e) and (b). Other law or codes of ethics governing third-party neutrals
may impose more stringent standards of personal or imputed
disqualification. See Rule 2.4.
[3] Although lawyers who serve as third-party neutrals do not have
information concerning the parties that is protected under Rule 1.6, they
typically owe the parties an obligation of confidentiality under law or
codes of ethics governing third-party neutrals. Thus, paragraph (c)
provides that conflicts of the personally disqualified lawyer will be
imputed to other lawyers in a law firm unless the conditions of this
paragraph are met.
[4] Requirements for screening procedures are state in Rule 1.0(k).
Paragraph (c)(1) does not prohibit the screened lawyer from receiving a
salary or partnership share established by prior independent agreement, but
that lawyer may not receive compensation directly related to the matter in
which the lawyer is disqualified.
[5] Notice, including a description of the screened lawyer's prior
representation and of the screening procedures employed, generally should
be given as soon as practicable after that need for screening becomes apparent.
[Amended effective September 1, 2006.]
RPC RULE 1.13
ORGANIZATION AS CLIENT
(a) A lawyer employed or retained by an organization represents the
organization acting through its duly authorized constituents.
(b) If a lawyer for an organization knows that an officer, employee or
other person associated with the organization is engaged in action, intends
to act or refuses to act in a matter related to the representation that is
a violation of a legal obligation to the organization, or a violation of
law that reasonably might be imputed to the organization, and that is
likely to result in substantial injury to the organization, then the lawyer
shall proceed as is reasonably necessary in the best interest of the
organization. Unless the lawyer reasonably believes that it is not
necessary in the best interest of the organization to do so, the lawyer
shall refer the matter to higher authority in the organization, including,
if warranted by the circumstances, to the highest authority that can act on
behalf of the organization as determined by applicable law.
(c) Except as provided in paragraph (d), if
(1) despite the lawyer's efforts in accordance with paragraph (b) the
highest authority that can act on behalf of the organization insists
upon or fails to address in a timely and appropriate manner an action,
or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably
certain to result in substantial injury to the organization, then the
lawyer may reveal information relating to the representation whether or
not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer
reasonably believes necessary to prevent substantial injury to the organization.
(d) Paragraph (c) shall not apply with respect to information relating
to a lawyer's representation of an organization to investigate an alleged
violation of law, or to defend the organization or an officer, employee or
other constituent associated with the organization against a claim arising
out of an alleged violation of law.
(e) A lawyer who reasonably believes that he or she has been discharged
because of the lawyer's actions taken pursuant to paragraphs (b) and (c),
or who withdraws under circumstances that require or permit the lawyer to
take action under either of those paragraphs, shall proceed as the lawyer
reasonably believes necessary to assure that the organization's highest
authority is informed of the lawyer's discharge or withdrawal.
(f) In dealing with an organization's directors, officers, employees,
members, shareholders or other constituents, a lawyer shall explain the
identity of the client when the lawyer knows or reasonably should know that
the organization's interests are adverse to those of the constituents with
whom the lawyer is dealing.
(g) A lawyer representing an organization may also represent any of its
directors, officers, employees, members, shareholders or other
constituents, subject to the provisions of Rule 1.7. If the organization's
consent to the dual representation is required by Rule 1.7, the consent
shall be given by an appropriate official of the organization other than
the individual who is to be represented, or by the shareholders.
(h) For purposes of this Rule, when a lawyer who is not a public officer
or employee represents a discrete governmental agency or unit that is part
of a broader governmental entity, the lawyer's client is the particular
governmental agency or unit represented, and not the broader governmental
entity of which the agency or unit is a part, unless:
(1) otherwise provided in a written agreement between the lawyer and
the governmental agency or unit; or
(2) the broader governmental entity gives the lawyer timely written
notice to the contrary, in which case the client shall be designated by
such entity. Notice under this subsection shall be given by the person
designated by law as the chief legal officer of the broader governmental
entity, or in the absence of such designation, by the chief executive
officer of the entity.
Comment
The Entity as the Client
[1] An organizational client is a legal entity, but it cannot act except
through its officers, directors, employees, shareholders and other
constituents. Officers, directors, employees and shareholders are the
constituents of the corporate organizational client. The duties defined in
this Comment apply equally to unincorporated associations. "Other
constituents" as used in this Comment means the positions equivalent to
officers, directors, employees and shareholders held by persons acting for
organizational clients that are not corporations.
[2] When one of the constituents of an organizational client
communicates with the organization's lawyer in that person's organizational
capacity, the communication is protected by Rule 1.6. Thus, by way of
example, if an organizational client requests its lawyer to investigate
allegations of wrongdoing, interviews made in the course of that
investigation between the lawyer and the client's employees or other
constituents are covered by Rule 1.6. This does not mean, however, that
constituents of an organizational client are the clients of the lawyer. The
lawyer may not disclose to such constituents information relating to the
representation except for disclosures explicitly or impliedly authorized by
the organizational client in order to carry out the representation or as
otherwise permitted by Rule 1.6.
[3] When constituents of the organization make decisions for it, the
decisions ordinarily must be accepted by the lawyer even if their utility
or prudence is doubtful. Decisions concerning policy and operations,
including ones entailing serious risk, are not as such in the lawyer's
province. Paragraph (b) makes clear, however, that when the lawyer knows
that the organization is likely to be substantially injured by action of an
officer or other constituent that violates a legal obligation to the
organization or is in violation of law that might be imputed to the
organization, the lawyer must proceed as is reasonably necessary in the
best interest of the organization. As defined in Rule 1.0(f), knowledge can
be inferred from circumstances, and a lawyer cannot ignore the obvious.
[4] In determining how to proceed under paragraph (b), the lawyer should
give due consideration to the seriousness of the violation and its
consequences, the responsibility in the organization and the apparent
motivation of the person involved, the policies of the organization
concerning such matters, and any other relevant considerations. Ordinarily,
referral to a higher authority would be necessary. In some circumstances,
however, it may be appropriate for the lawyer to ask the constituent to
reconsider the matter; for example, if the circumstances involve a
constituent's innocent misunderstanding of law and subsequent acceptance of
the lawyer's advice, the lawyer may reasonably conclude that the best
interest of the organization does not require that the matter be referred
to a higher authority. If a constituent persists in conduct contrary to the
lawyer's advice, it will be necessary for the lawyer to take steps to have
the matter reviewed by a higher authority in the organization. If the
matter is of sufficient seriousness and importance or urgency to the
organization, referral to higher authority in the organization may be
necessary even if the lawyer has not communicated with the constituent. Any
measures taken should, to the extent practicable, minimize the risk of
revealing information relating to the representation to persons outside the
organization. Even in circumstances where a lawyer is not obligated by Rule
1.13 to proceed, a lawyer may bring to the attention of an organizational
client, including its highest authority, matters that the lawyer reasonably
believes to be of sufficient importance to warrant doing so in the best
interest of the organization.
[5] Paragraph (b) also makes clear that when it is reasonably necessary
to enable the organization to address the matter in a timely and
appropriate manner, the lawyer must refer the matter to higher authority,
including, if warranted by the circumstances, the highest authority that
can act on behalf of the organization under applicable law. The
organization's highest authority to whom a matter may be referred
ordinarily will be the board of directors or similar governing body.
However, applicable law may prescribe that under certain conditions the
highest authority reposes elsewhere, for example, in the independent
directors of a corporation.
Relation to Other Rules
[6] The authority and responsibility provided in this Rule are
concurrent with the authority and responsibility provided in other Rules.
In particular, this Rule does not limit or expand the lawyer's
responsibility under Rules 1.8, 1.16, 3.3 or 4.1. Paragraph (c) of this
Rule supplements Rule 1.6(b) by providing an additional basis upon which
the lawyer may reveal information relating to the representation, but does
not modify, restrict, or limit the provisions of Rule 1.6(b)(1)-(7). Under
paragraph (c) the lawyer may reveal such information only when the
organization's highest authority insists upon or fails to address
threatened or ongoing action that is clearly a violation of law, and then
only to the extent the lawyer reasonably believes necessary to prevent
reasonably certain substantial injury to the organization. It is not
necessary that the lawyer's services be used in furtherance of the
violation, but it is required that the matter be related to the lawyer's
representation of the organization. If the lawyer's services are being used
by an organization to further a crime or fraud by the organization, Rules
1.6(b)(2) and 1.6(b)(3) may permit the lawyer to disclose confidential
information. In such circumstances Rule 1.2(d) may also be applicable, in
which event, withdrawal from the representation under Rule 1.16(a)(1) may
be required.
[7] Paragraph (d) makes clear that the authority of a lawyer to disclose
information relating to a representation in circumstances described in
paragraph (c) does not apply with respect to information relating to a
lawyer's engagement by an organization to investigate an alleged violation
of law or to defend the organization or an officer, employee or other
person associated with the organization against a claim arising out of an
alleged violation of law. This is necessary in order to enable
organizational clients to enjoy the full benefits of legal counsel in
conducting an investigation or defending against a claim.
[8] A lawyer who reasonably believes that he or she has been discharged
because of the lawyer's actions taken pursuant to paragraph (b) or (c), or
who withdraws in circumstances that require or permit the lawyer to take
action under either of these paragraphs, must proceed as the lawyer
reasonably believes necessary to assure that the organization's highest
authority is informed of the lawyer's discharge or withdrawal.
Government Agency
[9] The duty defined in this Rule applies to governmental organizations.
Defining precisely the identity of the client and prescribing the resulting
obligations of such lawyers may be more difficult in the government context
and is a matter beyond the scope of these Rules. See Scope [18]. Although
in some circumstances the client may be a specific agency, it may also be a
branch of government, such as the executive branch, or the government as a
whole. For example, if the action or failure to act involves the head of a
bureau, either the department of which the bureau is a part or the relevant
branch of government may be the client for purposes of this Rule. Moreover,
in a matter involving the conduct of government officials, a government
lawyer may have authority under applicable law to question such conduct
more extensively than that of a lawyer for a private organization in
similar circumstances. Thus, when the client is a governmental
organization, a different balance may be appropriate between maintaining
confidentiality and assuring that the wrongful act is prevented or
rectified, for public business is involved. In addition, duties of lawyers
employed by the government or lawyers in military service may be defined by
statutes and regulation. This Rule does not limit that authority. See Scope.
Clarifying the Lawyer's Role
[10] There are times when the organization's interest may be or become
adverse to those of one or more of its constituents. In such circumstances
the lawyer should advise any constituent, whose interest the lawyer finds
adverse to that of the organization of the conflict or potential conflict
of interest, that the lawyer cannot represent such constituent, and that
such person may wish to obtain independent representation. Care must be
taken to assure that the individual understands that, when there is such
adversity of interest, the lawyer for the organization cannot provide legal
representation for that constituent individual, and that discussions
between the lawyer for the organization and the individual may not be privileged.
[11] Whether such a warning should be given by the lawyer for the
organization to any constituent individual may turn on the facts of each case.
Dual Representation
[12] Paragraph (g) recognizes that a lawyer for an organization may also
represent a principal officer or major shareholder.
Derivative Actions
[13] Under generally prevailing law, the shareholders or members of a
corporation may bring suit to compel the directors to perform their legal
obligations in the supervision of the organization. Members of
unincorporated associations have essentially the same right. Such an action
may be brought nominally by the organization, but usually is, in fact, a
legal controversy over management of the organization.
[14] The question can arise whether counsel for the organization may
defend such an action. The proposition that the organization is the
lawyer's client does not alone resolve the issue. Most derivative actions
are a normal incident of an organization's affairs, to be defended by the
organization's lawyer like any other suit. However, if the claim involves
serious charges of wrongdoing by those in control of the organization, a
conflict may arise between the lawyer's duty to the organization and the
lawyer's relationship with the board. In those circumstances, Rule 1.7
governs who should represent the directors and the organization.
Additional Washington Comment (15)
[15] Paragraph (h) was taken from former Washington RPC 1.7(c); it
addresses the obligations of a lawyer who is not a public officer or
employee but is representing a discrete governmental agency or unit.
[Amended effective September 1, 2006.]
RPC RULE 1.14
CLIENT WITH DIMINISHED CAPACITY
(a) When a client's capacity to make adequately considered decisions in
connection with a representation is diminished, whether because of
minority, mental impairment or for some other reason, the lawyer shall, as
far as reasonably possible, maintain a normal client-lawyer relationship
with the client.
(b) When the lawyer reasonably believes that the client has diminished
capacity, is at risk of substantial physical, financial or other harm
unless action is taken and cannot adequately act in the client's own
interest, the lawyer may take reasonably necessary protective action,
including consulting with individuals or entities that have the ability to
take action to protect the client and, in appropriate cases, seeking the
appointment of a guardian ad litem, conservator or guardian.
(c) Information relating to the representation of a client with
diminished capacity is protected by Rule 1.6. When taking protective
action pursuant to paragraph (b), the lawyer is impliedly authorized under
Rule 1.6(a) to reveal information about the client, but only to the extent
reasonably necessary to protect the client's interests.
Comment
[1] The normal client-lawyer relationship is based on the assumption
that the client, when properly advised and assisted, is capable of making
decisions about important matters. When the client is a minor or suffers
from a diminished mental capacity, however, maintaining the ordinary
client-lawyer relationship may not be possible in all respects. In
particular, a severely incapacitated person may have no power to make
legally binding decisions. Nevertheless, a client with diminished capacity
often has the ability to understand, deliberate upon, and reach
conclusions about matters affecting the client's own well-being. For
example, children as young as five or six years of age, and certainly
those of ten or twelve, are regarded as having opinions that are entitled
to weight in legal proceedings concerning their custody. So also, it is
recognized that some persons of advanced age can be quite capable of
handling routine financial matters while needing special legal protection
concerning major transactions.
[2] The fact that a client suffers a disability does not diminish the
lawyer's obligation to treat the client with attention and respect. Even
if the person has a legal representative, the lawyer should as far as
possible accord the represented person the status of client, particularly
in maintaining communication.
[3] The client may wish to have family members or other persons
participate in discussions with the lawyer. When necessary to assist in
the representation, the presence of such persons generally does not affect
the applicability of the attorney-client evidentiary privilege.
Nevertheless, the lawyer must keep the client's interests foremost and,
except for protective action authorized under paragraph (b), must to look
to the client, and not family members, to make decisions on the client's behalf.
[4] [Washington revision] If a legal representative has already been
appointed for the client, the lawyer should ordinarily look to the
representative for decisions on behalf of the client. In matters involving
a minor, whether the lawyer should look to the parents as natural
guardians may depend on the type of proceeding or matter in which the
lawyer is representing the minor. If the lawyer represents the guardian as
distinct from the ward, and is aware that the guardian is acting adversely
to the ward's interest, the lawyer may have an obligation to prevent or
rectify the guardian's misconduct. See Rules 1.2(d) and 1.6(b)(7).
Taking Protective Action
[5] If a lawyer reasonably believes that a client is at risk of
substantial physical, financial or other harm unless action is taken, and
that a normal client-lawyer relationship cannot be maintained as provided
in paragraph (a) because the client lacks sufficient capacity to
communicate or to make adequately considered decisions in connection with
the representation, then paragraph (b) permits the lawyer to take
protective measures deemed necessary. Such measures could include:
consulting with family members, using a reconsideration period to permit
clarification or improvement of circumstances, using voluntary surrogate
decisionmaking tools such as durable powers of attorney or consulting with
support groups, professional services, adult-protective agencies or other
individuals or entities that have the ability to protect the client. In
taking any protective action, the lawyer should be guided by such factors
as the wishes and values of the client to the extent known, the client's
best interests and the goals of intruding into the client's decisionmaking
autonomy to the least extent feasible, maximizing client capacities and
respecting the client's family and social connections.
[6] In determining the extent of the client's diminished capacity, the
lawyer should consider and balance such factors as: the client's ability
to articulate reasoning leading to a decision, variability of state of
mind and ability to appreciate consequences of a decision; the substantive
fairness of a decision; and the consistency of a decision with the known
long-term commitments and values of the client. In appropriate
circumstances, the lawyer may seek guidance from an appropriate diagnostician.
[7] If a legal representative has not been appointed, the lawyer should
consider whether appointment of a guardian ad litem, conservator or
guardian is necessary to protect the client's interests. Thus, if a client
with diminished capacity has substantial property that should be sold for
the client's benefit, effective completion of the transaction may require
appointment of a legal representative. In addition, rules of procedure in
litigation sometimes provide that minors or persons with diminished
capacity must be represented by a guardian or next friend if they do not
have a general guardian. In many circumstances, however, appointment of a
legal representative may be more expensive or traumatic for the client
than circumstances in fact require. Evaluation of such circumstances is a
matter entrusted to the professional judgment of the lawyer. In
considering alternatives, however, the lawyer should be aware of any law
that requires the lawyer to advocate the least restrictive action on
behalf of the client.
Disclosure of the Client's Condition
[8] Disclosure of the client's diminished capacity could adversely
affect the client's interests. For example, raising the question of
diminished capacity could, in some circumstances, lead to proceedings for
involuntary commitment. Information relating to the representation is
protected by Rule 1.6. Therefore, unless authorized to do so, the lawyer
may not disclose such information. When taking protective action pursuant
to paragraph (b), the lawyer is impliedly authorized to make the necessary
disclosures, even when the client directs the lawyer to the contrary.
Nevertheless, given the risks of disclosure, paragraph (c) limits what the
lawyer may disclose in consulting with other individuals or entities or
seeking the appointment of a legal representative. At the very least, the
lawyer should determine whether it is likely that the person or entity
consulted with will act adversely to the client's interests before
discussing matters related to the client. The lawyer's position in such
cases is an unavoidably difficult one.
Emergency Legal Assistance
[9] In an emergency where the health, safety or a financial interest of
a person with seriously diminished capacity is threatened with imminent
and irreparable harm, a lawyer may take legal action on behalf of such a
person even though the person is unable to establish a client-lawyer
relationship or to make or express considered judgments about the matter,
when the person or another acting in good faith on that person's behalf
has consulted with the lawyer. Even in such an emergency, however, the
lawyer should not act unless the lawyer reasonably believes that the
person has no other lawyer, agent or other representative available. The
lawyer should take legal action on behalf of the person only to the extent
reasonably necessary to maintain the status quo or otherwise avoid
imminent and irreparable harm. A lawyer who undertakes to represent a
person in such an exigent situation has the same duties under these Rules
as the lawyer would with respect to a client.
[10] A lawyer who acts on behalf of a person with seriously diminished
capacity in an emergency should keep the confidences of the person as if
dealing with a client, disclosing them only to the extent necessary to
accomplish the intended protective action. The lawyer should disclose to
any tribunal involved and to any other counsel involved the nature of his
or her relationship with the person. The lawyer should take steps to
regularize the relationship or implement other protective solutions as
soon as possible. Normally, a lawyer would not seek compensation for such
emergency actions taken.
[Amended effective October 1, 2002; September 1, 2006.]
RULE 1.15A
SAFEGUARDING PROPERTY
(a) This Rule applies to (1) property of clients or third persons in a
lawyer's possession in connection with a representation and (2) escrow and
other funds held by a lawyer incident to the closing of any real estate or
personal property transaction. Additionally, for all transactions in which a
lawyer has selected, prepared, or completed legal documents for use in the
closing of any real estate or personal property transaction, the lawyer must
ensure that all funds received or held by the Closing Firm incidental to the
closing of the transaction, including advances for costs and expenses, are held
and maintained as set forth in this rule or LPORPC 1.12A. The lawyer's duty to
ensure that all funds received or held by the Closing Firm incidental to the
closing of the transaction are held and maintained as set forth in this rule or
LPORPC 1.12A shall not apply to a lawyer when that lawyer's participation in
the matter is incidental to the closing and (i) the lawyer or lawyer's law firm
has a preexisting client-lawyer relationship with a buyer or seller in the
transaction, and (ii) neither the lawyer nor the lawyer's law firm has an
existing client-lawyer relationship with the Closing Firm or an LPO
participating in the closing.
(b) A lawyer must not use, convert, borrow or pledge client or third person
property for the lawyer's own use.
(c) A lawyer must hold property of clients and third persons separate from
the lawyer's own property.
(1) A lawyer must deposit and hold in a trust account funds subject to this
Rule pursuant to paragraph (h) of this Rule.
(2) Except as provided in Rule 1.5(f), and subject to the requirements of
paragraph (h) of this Rule, a lawyer shall deposit into a trust account legal
fees and expenses that have been paid in advance, to be withdrawn by the lawyer
only as fees are earned or expenses incurred.
(3) A lawyer must identify, label and appropriately safeguard any property of
clients or third persons other than funds. The lawyer must keep records of such
property that identify the property, the client or third person, the date of
receipt and the location of safekeeping. The lawyer must preserve the records
for seven years after return of the property.
(d) A lawyer must promptly notify a client or third person of receipt of
the client or third person's property.
(e) A lawyer must promptly provide a written accounting to a client or third
person after distribution of property or upon request. A lawyer must provide at
least annually a written accounting to a client or third person for whom the
lawyer is holding funds.
(f) Except as stated in this Rule, a lawyer must promptly pay or deliver to the
client or third person the property which the client or third person is entitled to receive.
(g) If a lawyer possesses property in which two or more persons (one of
which may be the lawyer) claim interests, the lawyer must maintain the property
in trust until the dispute is resolved. The lawyer must promptly distribute all
undisputed portions of the property. The lawyer must take reasonable action to
resolve the dispute, including, when appropriate, interpleading the disputed funds.
(h) A lawyer must comply with the following for all trust accounts:
(1) No funds belonging to the lawyer may be deposited or retained in a
trust account except as follows:
(i) funds to pay bank charges, but only in an amount reasonably sufficient for that purpose;
(ii) funds belonging in part to a client or third person and in part presently
or potentially to the lawyer must be deposited and retained in a trust account, but any
portion belonging to the lawyer must be withdrawn at the earliest reasonable time; or
(iii) funds necessary to restore appropriate balances.
(2) A lawyer must keep complete records as required by Rule 1.15B.
(3) A lawyer may withdraw funds when necessary to pay client costs. The
lawyer may withdraw earned fees only after giving reasonable notice to the
client of the intent to do so, through a billing statement or other document.
(4) Receipts must be deposited intact.
(5) All withdrawals must be made only to a named payee and not to cash.
Withdrawals must be made by check or by bank transfer.
(6) Trust account records must be reconciled as often as bank statements
are generated or at least quarterly. The lawyer must reconcile the check
register balance to the bank statement balance and reconcile the check register
balance to the combined total of all client ledger records required by Rule 1.15B(a)(2).
(7) A lawyer must not disburse funds from a trust account until deposits
have cleared the banking process and been collected, unless the lawyer and
the bank have a written agreement by which the lawyer personally guarantees
all deposits to the account without recourse to the trust account.
(8) Disbursements on behalf of a client or third person may not exceed the
funds of that person on deposit. The funds of a client or third person must
not be used on behalf of anyone else.
(9) Only a lawyer admitted to practice law may be an authorized signatory
on the account.
(i) Trust accounts must be interest-bearing and allow withdrawals or transfers
without any delay other than notice periods that are required by law or
regulation and meet the requirements of ELC 15.7(d) and ELC 15.7(e). In the
exercise of ordinary prudence, a lawyer may select any financial institution
authorized by the Legal Foundation of Washington (Legal Foundation) under ELC
15.7(c). In selecting the type of trust account for the purpose of depositing
and holding funds subject to this Rule, a lawyer shall apply the following criteria:
(1) When client or third-person funds will not produce a positive net
return to the client or third person because the funds are nominal in amount
or expected to be held for a short period of time the funds must be placed
in a pooled interest-bearing trust account known as an Interest on Lawyer's
Trust Account or IOLTA. The interest earned on IOLTA accounts shall be paid
to, and the IOLTA program shall be administered by, the Legal Foundation of
Washington in accordance with ELC 15.4 and ELC 15.7(e).
(2) Client or third-person funds that will produce a positive net return
to the client or third person must be placed in one of the following two
types of non-IOLTA trust accounts unless the client or third person requests
that the funds be deposited in an IOLTA account:
(i) a separate interest-bearing trust account for the particular client
or third person with earned interest paid to the client or third person; or
(ii) a pooled interest-bearing trust account with sub-accounting that
allows for computation of interest earned by each client or third person's
funds with the interest paid to the appropriate client or third person.
(3) In determining whether to use the account specified in paragraph
(i)(1) or an account specified in paragraph (i)(2), a lawyer must consider
only whether the funds will produce a positive net return to the client or
third person, as determined by the following factors:
(i) the amount of interest the funds would earn based on the current
rate of interest and the expected period of deposit;
(ii) the cost of establishing and administering the account, including
the cost of the lawyer's services and the cost of preparing any tax
reports required for interest accruing to a client or third person's benefit; and
(iii) the capability of financial institutions to calculate and pay interest
to individual clients or third persons if the account in paragraph (i)(2)(ii) is used.
The provisions of paragraph (i) do not relieve a lawyer or law firm from
any obligation imposed by these Rules.
Washington Comments
[1] A lawyer must also comply with the recordkeeping rule for trust
accounts, Rule 1.15B.
[2] Client funds include, but are not limited to, the following: legal fees
and costs that have been paid in advance other than retainers and flat fees
complying with the requirements of Rule 1.5(f), funds received on behalf of a
client, funds to be paid by a client to a third party through the lawyer, other
funds subject to attorney and other liens, and payments received in excess of
amounts billed for fees.
[3] This Rule applies to property held in any fiduciary capacity in
connection with a representation, whether as trustee, agent, escrow agent,
guardian, personal representative, executor, or otherwise.
[4] The inclusion of ethical obligations to third persons in the handling of
trust funds and property is not intended to expand or otherwise affect existing
law regarding a Washington lawyer's liability to third parties other than
clients. See, e.g., Trask v. Butler, 123 Wn.2d 835, 872 P.2d 1080 (1994);
Hetzel v. Parks, 93 Wn. App. 929, 971 P.2d 115 (1999).
[5] Property covered by this Rule includes original documents affecting
legal rights such as wills or deeds.
[6] A lawyer has a duty to take reasonable steps to locate a client or third
person for whom the lawyer is holding funds or property. If after taking
reasonable steps, the lawyer is still unable to locate the client or third
person, the lawyer should treat the funds as unclaimed property under the
Uniform Unclaimed Property Act, RCW 63.29.
[7] A lawyer may not use as a trust account an account in which funds are
periodically transferred by the financial institution between a trust account
and an uninsured account or other account that would not qualify as a trust
account under this Rule or ELC 15.7.
[8] If a lawyer accepts payment of an advanced fee deposit by credit card,
the payment must be deposited directly into the trust account. It cannot be
deposited into a general account and then transferred to the trust
account. Similarly, credit card payments of earned fees, of retainers meeting
the requirements of Rule 1.5(f)(1), and of flat fees meeting the requirements
of Rule 1.5(f)(2) cannot be deposited into the trust account and then
transferred to another account.
[9] Under paragraph (g), the extent of the efforts that a lawyer is
obligated to take to resolve a dispute depend on the amount in dispute, the
availability of methods for alternative dispute resolution, and the likelihood
of informal resolution.
[10] The requirement in paragraph (h)(4) that receipts must be deposited
intact means that a lawyer cannot deposit one check or negotiable instrument
into two or more accounts at the same time, commonly known as a split deposit.
[11] Paragraph (h)(7) permits Washington lawyers to enter into written
agreements with the trust account financial institution to provide for
disbursement of trust deposits prior to formal notice of dishonor or
collection. In essence the trust account bank is agreeing to or has guaranteed
a loan to the lawyer and the client for the amount of the trust deposit pending
collection of that deposit from the institution upon which the instrument was
written. A Washington lawyer may only enter into such an arrangement if 1)
there is a formal written agreement between the attorney and the trust account
institution, and 2) the trust account financial institution provides the lawyer
with written assurance that in the event of dishonor of the deposited
instrument or other difficulty in collecting the deposited funds, the financial
institution will not have recourse to the trust account to obtain the funds to
reimburse the financial institution. A lawyer must never use one client's money
to pay for withdrawals from the trust account on behalf of another client who
is paid subject to the lawyer's guarantee. The trust account financial
institution must agree that the institution will not seek to fund the
guaranteed withdrawal from the trust account, but will instead look to the
lawyer for payment of uncollectible funds. Any such agreement must ensure that
the trust account funds or deposits of any other client's or third person's
money into the trust account would not be affected by the guarantee.
[12] The Legal Foundation of Washington was established by Order of the
Supreme Court of Washington.
[13] A lawyer may, but is not required to, notify the client of the intended
use of funds paid to the Foundation.
[14] If the client or third person requests that funds that would be
deposited in a non-IOLTA trust account under paragraph (i)(2) instead be held
in the IOLTA account, the lawyer should document this request in the lawyer's
trust account records and preferably should confirm the request in writing to
the client or third person.
[15] A lawyer may not receive from financial institutions earnings credits
or any other benefit from the financial institution based on the balance
maintained in a trust account.
[16] The term "Closing Firm" as used in this rule has the same definition as
in ELPOC 1.3(g).
[17] The lawyer may satisfy the requirement of paragraph (a), that the
lawyer must ensure that all funds received or held by the Closing Firm
incidental to the closing of the transaction including advances for costs and
expenses, are held and maintained as set forth in this rule or LPORPC 1.12A, by
obtaining a certification or other reasonable assurance from the Closing Firm
that the funds are being held in accordance with RPC 1.15A and/or LPORPC 1.12A.
The lawyer is not required to personally inspect the books and records of the
Closing Firm.
The last sentence of Paragraph (a) is intended to relieve a lawyer from
the duties of paragraph (a) only if the lawyer or the lawyer's law firm has a
previous client-lawyer relationship with one of the parties to the transaction
and that party is a buyer or seller. Lawyers may be called on by clients to
review deeds prepared during the escrow process, or may be asked to prepare
special deeds such as personal representative's deeds for use in the closing.
A lawyer may also be asked by a client to review documents such as settlement
statements or tax affidavits that have been prepared for the closing. Such
activities are limited in scope and are only incidental to the closing. The
exception stated in the last sentence of paragraph (a) does not apply if the
lawyer or the lawyer's law firm has an existing client-lawyer relationship with
the Closing Firm or with a limited practice officer who is participating in the closing.
[18] When selecting a financial institution for purposes of depositing and
holding funds in a trust account, a lawyer is obligated to exercise ordinary
prudence under paragraph (i). All trust accounts must be insured by the Federal
Deposit Insurance Corporation or the National Credit Union Administration up to
the limit established by law for those types of accounts or be backed by United
States Government Securities. Trust account funds must not be placed in
stocks, bonds, mutual funds that invest in stock or bonds, or similar uninsured
investments. See ELC 15.7(d).
[19] Only those financial institutions authorized by the Legal Foundation
of Washington (Legal Foundation) are eligible to offer trust accounts to
Washington lawyers. To become authorized, the financial institution must
satisfy the Legal Foundation that it qualifies as an authorized financial
institution under ELC 15.7(c) and must have on file with the Legal Foundation a
current Overdraft Notification Agreement under ELC 15.4. A list of all
authorized financial institutions is maintained and published by the Legal
Foundation and is available to any person on request.
[20] Upon receipt of a notification of a trust account overdraft, a
lawyer must comply with the duties set forth in ELC 15.4(d) (lawyer must
promptly notify the Office of Disciplinary Counsel of the Washington State Bar
Association and include a full explanation of the cause of the overdraft).
[21] A unilateral deposit of funds belonging in part to a client or third
party into a lawyer's non-trust account does not constitute a violation of
paragraph (c) of this Rule if the lawyer promptly identifies the portion of the
funds belonging to the client or third party, deposits those funds into a trust
account, and notifies the client or third party of the deposit. A unilateral
deposit of funds belonging in part to a lawyer into a trust account does not
constitute a violation of paragraph (h) of this Rule if the lawyer promptly
identifies the lawyer-owned funds and withdraws them from the trust account.
For purposes of this provision, a unilateral deposit refers to funds deposited
directly by a client or third party by means of electronic funds transfer where
the lawyer has not directed, invited, or encouraged a deposit that would
constitute a violation of this Rule and has taken reasonable precautions to
prevent such a deposit.
[Amended effective September 1, 2006. amended effective November 18, 2008;
January 1, 2009; December 1, 2009; September 1, 2011; September 1, 2012]
RPC RULE 1.15B
REQUIRED TRUST ACCOUNT RECORDS
(a) A lawyer must maintain current trust account records. They may be in
electronic or manual form and must be retained for at least seven years
after the events they record. At minimum, the records must include the following:
(1) Checkbook register or equivalent for each trust account, including
entries for all receipts, disbursements, and transfers, and containing at least:
(i) identification of the client matter for which trust funds were
received, disbursed, or transferred;
(ii) the date on which trust funds were received, disbursed, or transferred;
(iii) the check number for each disbursement;
(iv) the payor or payee for or from which trust funds were received,
disbursed, or transferred; and
(v) the new trust account balance after each receipt, disbursement, or transfer;
(2) Individual client ledger records containing either a separate page
for each client or an equivalent electronic record showing all individual
receipts, disbursements, or transfers, and also containing:
(i) identification of the purpose for which trust funds were
received, disbursed, or transferred;
(ii) the date on which trust funds were received, disbursed or transferred;
(iii) the check number for each disbursement;
(iv) the payor or payee for or from which trust funds were received,
disbursed, or transferred; and
(v) the new client fund balance after each receipt, disbursement, or transfer;
(3) Copies of any agreements pertaining to fees and costs;
(4) Copies of any statements or accountings to clients or third
parties showing the disbursement of funds to them or on their behalf;
(5) Copies of bills for legal fees and expenses rendered to clients;
(6) Copies of invoices, bills or other documents supporting all
disbursements or transfers from the trust account;
(7) Bank statements, copies of deposit slips, and cancelled checks or
their equivalent;
(8) Copies of all trust account client ledger reconciliations; and
(9) Copies of those portions of clients' files that are reasonably
necessary for a complete understanding of the financial transactions
pertaining to them.
(b) Upon any change in the lawyer's practice affecting the trust account,
including dissolution or sale of a law firm or suspension or other change
in membership status, the lawyer must make appropriate arrangements for the
maintenance of the records specified in this Rule.
Washington Comments
[1] Paragraph (a)(3) is not intended to require that fee agreements be in
writing. That issue is governed by Rule 1.5.
[2] If trust records are computerized, a system of regular and frequent
(preferably daily) back-up procedures is essential.
[3] Paragraph (a)(9) does not require a lawyer to retain the entire
client file for a period of seven years, although many lawyers will choose
to do so for other reasons. Rather, under this paragraph, the lawyer must
retain only those portions of the file necessary for a complete
understanding of the financial transactions. For example, if a lawyer
received proceeds of a settlement on a client's behalf, the lawyer would
need to retain a copy of the settlement agreement. In many cases, there
will be nothing in the client file that needs to be retained other than the
specific documents listed in paragraphs (a)(2)-(8).
[Amended effective September 1, 2006.]
RULE 1.16
DECLINING OR TERMINATING REPRESENTATION
(a) Except as stated in paragraph (c), a lawyer shall not represent a
client or, where representation has commenced, shall, notwithstanding RCW
2.44.040, withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of
Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the
lawyer's ability to represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from
representing a client if:
(1) withdrawal can be accomplished without material adverse effect on
the interests of the client;
(2) the client persists in a course of action involving the lawyer's
services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the
lawyer regarding the lawyer's services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial
burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) A lawyer must comply with applicable law requiring notice to or
permission of a tribunal when terminating a representation. When ordered
to do so by a tribunal, a lawyer shall continue representation
notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to
the extent reasonably practicable to protect a client's interests, such
as giving reasonable notice to the client, allowing time for employment
of other counsel, surrendering papers and property to which the client is
entitled and refunding any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers relating to the
client to the extent permitted by other law.
Comment
[1] A lawyer should not accept representation in a matter unless it can
be performed competently, promptly, without improper conflict of interest
and to completion. Ordinarily, a representation in a matter is completed
when the agreed-upon assistance has been concluded. See Rules 1.2(c) and
6.5. See also Rule 1.3, Comment [4].
Mandatory Withdrawal
[2] A lawyer ordinarily must decline or withdraw from representation if
the client demands that the lawyer engage in conduct that is illegal or
violates the Rules of Professional Conduct or other law. The lawyer is
not obliged to decline or withdraw simply because the client suggests
such a course of conduct; a client may make such a suggestion in the hope
that a lawyer will not be constrained by a professional obligation.
[3] When a lawyer has been appointed to represent a client, withdrawal
ordinarily requires approval of the appointing authority. See also Rule
6.2. Similarly, court approval or notice to the court is often required
by applicable law before a lawyer withdraws from pending litigation.
Difficulty may be encountered if withdrawal is based on the client's
demand that the lawyer engage in unprofessional conduct. The court may
request an explanation for the withdrawal, while the lawyer may be bound
to keep confidential the facts that would constitute such an explanation.
The lawyer's statement that professional considerations require
termination of the representation ordinarily should be accepted as
sufficient. Lawyers should be mindful of their obligations to both
clients and the court under Rules 1.6 and 3.3.
Discharge
[4] A client has a right to discharge a lawyer at any time, with or
without cause, subject to liability for payment for the lawyer's
services. Where future dispute about the withdrawal may be anticipated,
it may be advisable to prepare a written statement reciting the
circumstances.
[5] Whether a client can discharge appointed counsel may depend on
applicable law. A client seeking to do so should be given a full
explanation of the consequences. These consequences may include a
decision by the appointing authority that appointment of successor
counsel is unjustified, thus requiring self-representation by the client.
[6] If the client has severely diminished capacity, the client may lack
the legal capacity to discharge the lawyer, and in any event the
discharge may be seriously adverse to the client's interests. The lawyer
should make special effort to help the client consider the consequences
and may take reasonably necessary protective action as provided in Rule 1.14.
Optional Withdrawal
[7] A lawyer may withdraw from representation in some circumstances.
The lawyer has the option to withdraw if it can be accomplished without
material adverse effect on the client's interests. Withdrawal is also
justified if the client persists in a course of action that the lawyer
reasonably believes is criminal or fraudulent, for a lawyer is not
required to be associated with such conduct even if the lawyer does not
further it. Withdrawal is also permitted if the lawyer's services were
misused in the past even if that would materially prejudice the client.
The lawyer may also withdraw where the client insists on taking action
that the lawyer considers repugnant or with which the lawyer has a
fundamental disagreement.
[8] A lawyer may withdraw if the client refuses to abide by the terms
of an agreement relating to the representation, such as an agreement
concerning fees or court costs or an agreement limiting the objectives of
the representation.
Assisting the Client upon Withdrawal
[9] Even if the lawyer has been unfairly discharged by the client, a
lawyer must take all reasonable steps to mitigate the consequences to the
client. The lawyer may retain papers as security for a fee only to the
extent permitted by law. See Rule 1.15A.
[Amended effective September 1, 2006.]
RPC RULE 1.17
SALE OF LAW PRACTICE
A lawyer or a law firm may sell or purchase a law practice, or an area of
law practice, including good will, if the following conditions are satisfied:
(a) [Reserved.]
(b) The entire practice, or the entire area of practice, is sold to one
or more lawyers or law firms;
(c) The seller gives written notice to each of the seller's clients
regarding:
(1) the proposed sale;
(2) the client's right to retain other counsel or to take possession
of the file; and
(3) the fact that the client's consent to the transfer of the client's
files will be presumed if the client does not take any action or does not
otherwise object within ninety (90) days of receipt of the notice.
If a client cannot be given notice, the representation of that client may
be transferred to the purchaser only upon entry of an order so authorizing
by a court having jurisdiction. The seller may disclose to the court in
camera information relating to the representation only to the extent
necessary to obtain an order authorizing the transfer of a file.
(d) The fees charged clients shall not be increased by reason of the sale.
Comment
[1] The practice of law is a profession, not merely a business. Clients
are not commodities that can be purchased and sold at will. Pursuant to
this Rule, when a lawyer or an entire firm ceases to practice, or ceases to
practice in an area of law, and other lawyers or firms take over the
representation, the selling lawyer or firm may obtain compensation for the
reasonable value of the practice as may withdrawing partners of law firms.
See Rules 5.4 and 5.6.
Termination of Practice by the Seller
[2] [Reserved.]
[3] [Reserved.]
[4] [Reserved.]
[5] [Reserved.]
Sale of Entire Practice or Entire Area of Practice
[6] The Rule requires that the seller's entire practice, or an entire
area of practice, be sold. The prohibition against sale of less than an
entire practice area protects those clients whose matters are less
lucrative and who might find it difficult to secure other counsel if a sale
could be limited to substantial fee-generating matters. The purchasers are
required to undertake all client matters in the practice or practice area,
subject to client consent. This requirement is satisfied, however, even if
a purchaser is unable to undertake a particular client matter because of a
conflict of interest.
Client Confidences, Consent and Notice
[7] Negotiations between seller and prospective purchaser prior to
disclosure of information relating to a specific representation of an
identifiable client no more violate the confidentiality provisions of Rule
1.6 than do preliminary discussions concerning the possible association of
another lawyer or mergers between firms, with respect to which client
consent is not required. Providing the purchaser access to client-specific
information relating to the representation and to the file, however,
requires client consent. The Rule provides that before such information can
be disclosed by the seller to the purchaser the client must be given actual
written notice of the contemplated sale, including the identity of the
purchaser, and must be told that the decision to consent or make other
arrangements must be made within 90 days. If nothing is heard from the
client within that time, consent to the sale is presumed.
[8] [Washington revision] A lawyer or law firm ceasing to practice cannot
be required to remain in practice because some clients cannot be given
actual notice of the proposed purchase. Since these clients cannot
themselves consent to the purchase or direct any other disposition of their
files, the Rule requires an order from a court having jurisdiction
authorizing their transfer or other disposition. The Court can be expected
to determine whether reasonable efforts to locate the client have been
exhausted, and whether the absent client's legitimate interests will be
served by authorizing the transfer of the file so that the purchaser may
continue the representation. Preservation of client confidences requires
that the petition for a court order be considered in camera.
[9] All elements of client autonomy, including the client's absolute
right to discharge a lawyer and transfer the representation to another,
survive the sale of the practice or area of practice.
Fee Arrangements Between Client and Purchaser
[10] The sale may not be financed by increases in fees charged the
clients of the practice. Existing arrangements between the seller and the
client as to fees and the scope of the work must be honored by the
purchaser.
Other Applicable Ethical Standards
[11] Lawyers participating in the sale of a law practice or a practice
area are subject to the ethical standards applicable to involving another
lawyer in the representation of a client. These include, for example, the
seller's obligation to exercise competence in identifying a purchaser
qualified to assume the practice and the purchaser's obligation to
undertake the representation competently (see Rule 1.1); the obligation to
avoid disqualifying conflicts, and to secure the client's informed consent
for those conflicts that can be agreed to (see Rule 1.7 regarding conflicts
and Rule 1.0(e) for the definition of informed consent); and the obligation
to protect information relating to the representation (see Rules 1.6 and 1.9).
[12] If approval of the substitution of the purchasing lawyer for the
selling lawyer is required by the rules of any tribunal in which a matter
is pending, such approval must be obtained before the matter can be
included in the sale (see Rule 1.16).
Applicability of the Rule
[13] This Rule applies to the sale of a law practice of a deceased,
disabled or disappeared lawyer. Thus, the seller may be represented by a
non-lawyer representative not subject to these Rules. Since, however, no
lawyer may participate in a sale of a law practice which does not conform
to the requirements of this Rule, the representatives of the seller as well
as the purchasing lawyer can be expected to see to it that they are met.
[14] Admission to or retirement from a law partnership or professional
association, retirement plans and similar arrangements, and a sale of
tangible assets of a law practice, do not constitute a sale or purchase
governed by this Rule.
[15] This Rule does not apply to the transfers of legal representation
between lawyers when such transfers are unrelated to the sale of a practice
or an area of practice.
Additional Washington Comment (16)
[16] If, at the time the notice under paragraph (c) is given, the buyer
or seller knows of a conflict that would preclude the buyer from
representing a client of the seller, the notice to that client should
inform the client of the conflict and the need for the client to obtain
substitute counsel or retrieve the file. When such a conflict exists, the
notice described in paragraph (c)(3) cannot be given because there can be
no presumption that the client's file will be transferred to the buyer.
[Adopted effective September 1, 2006.]
RPC RULE 1.18
DUTIES TO PROSPECTIVE CLIENT
(a) A person who discusses with a lawyer the possibility of forming a
client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had
discussions with a prospective client shall not use or reveal information
learned in the consultation, except as Rule 1.9 would permit with respect
to information of a former client or except as provided in paragraph (e).
(c) A lawyer subject to paragraph (b) shall not represent a client with
interests materially adverse to those of a prospective client in the same
or a substantially related matter if the lawyer received information from
the prospective client that could be significantly harmful to that person
in the matter, except as provided in paragraphs (d) or (e). If a lawyer is
disqualified from representation under this paragraph, no lawyer in a firm
with which that lawyer is associated may knowingly undertake or continue
representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in
paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given
informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures
to avoid exposure to more disqualifying information than was reasonably
necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee
therefrom; and
(ii) written notice is promptly given to the prospective client.
(e) A lawyer may condition conversations with a prospective client on the
person's informed consent that no information disclosed during the
consultation will prohibit the lawyer from representing a different client
in the matter. The prospective client may also expressly consent to the
lawyer's subsequent use of information received from the prospective client.
Comment
[1] Prospective clients, like clients, may disclose information to a
lawyer, place documents or other property in the lawyer's custody, or rely
on the lawyer's advice. A lawyer's discussions with a prospective client
usually are limited in time and depth and leave both the prospective client
and the lawyer free (and sometimes required) to proceed no further. Hence,
prospective clients should receive some but not all of the protection
afforded clients.
[2] [Washington revision] Not all persons who communicate information to
a lawyer are entitled to protection under this Rule. A person who
communicates information unilaterally to a lawyer, without any reasonable
expectation that the lawyer is willing to discuss the possibility of
forming a client-lawyer relationship, is not a "prospective client" within
the meaning of paragraph (a). See also Washington Comment [10].
[3] It is often necessary for a prospective client to reveal information
to the lawyer during an initial consultation prior to the decision about
formation of a client-lawyer relationship. The lawyer often must learn such
information to determine whether there is a conflict of interest with an
existing client and whether the matter is one that the lawyer is willing to
undertake. Paragraph (b) prohibits the lawyer from using or revealing that
information, except as permitted by Rule 1.9, even if the client or lawyer
decides not to proceed with the representation. The duty exists regardless
of how brief the initial conference may be.
[4] In order to avoid acquiring disqualifying information from a
prospective client, a lawyer considering whether or not to undertake a new
matter should limit the initial interview to only such information as
reasonably appears necessary for that purpose. Where the information
indicates that a conflict of interest or other reason for non-
representation exists, the lawyer should so inform the prospective client
or decline the representation. If the prospective client wishes to retain
the lawyer, and if consent is possible under Rule 1.7, then consent from
all affected present or former clients must be obtained before accepting
the representation.
[5] [Reserved. Comment [5] to Model Rule 1.18 is codified, with minor
modifications, as paragraph (e). See Rule 1.0(e) for the definition of
informed consent.]
[6] Even in the absence of an agreement, under paragraph (c), the lawyer
is not prohibited from representing a client with interests adverse to
those of the prospective client in the same or a substantially related
matter unless the lawyer has received from the prospective client
information that could be significantly harmful if used in the matter.
[7] Under paragraph (c), the prohibition in this Rule is imputed to other
lawyers as provided in Rule 1.10, but, under paragraph (d)(1), imputation
may be avoided if the lawyer obtains the informed consent, confirmed in
writing, of both the prospective and affected clients. In the alternative,
imputation may be avoided if the conditions of paragraph (d)(2) are met and
all disqualified lawyers are timely screened and written notice is promptly
given to the prospective client. See Rule 1.0(k) (requirements for
screening procedures). Paragraph (d)(2)(i) does not prohibit the screened
lawyer from receiving a salary or partnership share established by prior
independent agreement, but that lawyer may not receive compensation
directly related to the matter in which the lawyer is disqualified.
[8] Notice, including a general description of the subject matter about
which the lawyer was consulted, and of the screening procedures employed,
generally should be given as soon as practicable after the need for
screening becomes apparent.
[9] For the duty of competence of a lawyer who gives assistance on the
merits of a matter to a prospective client, see Rule 1.1. For a lawyer's
duties when a prospective client entrusts valuables or papers to the
lawyer's care, see Rule 1.15A.
Additional Washington Comments (10 - 13)
[10] Unilateral communications from individuals seeking legal services do
not generally create a relationship covered by this Rule, unless the lawyer
invites unilateral confidential communications. The public dissemination of
general information concerning a lawyer's name or firm name, practice area
and types of clients served, and contact information, is not in itself, an
invitation to convey unilateral confidential communications nor does it
create a reasonable expectation that the lawyer is willing to discuss the
possibility of forming a client-lawyer relationship.
[11] This Rule is not intended to modify existing case law defining when
a client-lawyer relationship is formed. See Bohn v. Cody, 119 Wn.2d 357,
363, 832 P.2d 71 (1992); In re McGlothen, 99 Wn.2d 515, 522, 663 P.2d 1330
(1983). See also Scope [17].
[12] For purposes of this Rule, "significantly harmful" means more than
de minimis harm.
[13] Pursuant to statute or other law, government officers and employees
may be entitled to defense and indemnification by the government. In these
circumstances, a government lawyer may find it necessary to obtain
information from a government officer or employee to determine if he or she
meets the criteria for representation and indemnification. In this
situation, the government lawyer is acting on behalf of the government
entity as the client, and this Rule would not apply. The government lawyer
shall comply with Rule 4.3 in obtaining such information.
[Adopted effective September 1, 2006.]
RPC RULE 2.1
ADVISOR
In representing a client, a lawyer shall exercise independent
professional judgment and render candid advice. In rendering advice, a
lawyer may refer not only to law but to other considerations such as moral,
economic, social and political factors, that may be relevant to the
client's situation.
Comment
Scope of Advice
[1] A client is entitled to straightforward advice expressing the
lawyer's honest assessment. Legal advice often involves unpleasant facts
and alternatives that a client may be disinclined to confront. In
presenting advice, a lawyer endeavors to sustain the client's morale and
may put advice in as acceptable a form as honesty permits. However, a
lawyer should not be deterred from giving candid advice by the prospect
that the advice will be unpalatable to the client.
[2] Advice couched in narrow legal terms may be of little value to a
client, especially where practical considerations, such as cost or effects
on other people, are predominant. Purely technical legal advice, therefore,
can sometimes be inadequate. It is proper for a lawyer to refer to relevant
moral and ethical considerations in giving advice. Although a lawyer is not
a moral advisor as such, moral and ethical considerations impinge upon most
legal questions and may decisively influence how the law will be applied.
[3] A client may expressly or impliedly ask the lawyer for purely
technical advice. When such a request is made by a client experienced in
legal matters, the lawyer may accept it at face value. When such a request
is made by a client inexperienced in legal matters, however, the lawyer's
responsibility as advisor may include indicating that more may be involved
than strictly legal considerations.
[4] Matters that go beyond strictly legal questions may also be in the
domain of another profession. Family matters can involve problems within
the professional competence of psychiatry, clinical psychology or social
work; business matters can involve problems within the competence of the
accounting profession or of financial specialists. Where consultation with
a professional in another field is itself something a competent lawyer
would recommend, the lawyer should make such a recommendation. At the same
time, a lawyer's advice at its best often consists of recommending a course
of action in the face of conflicting recommendations of experts.
Offering Advice
[5] In general, a lawyer is not expected to give advice until asked by
the client. However, when a lawyer knows that a client proposes a course of
action that is likely to result in substantial adverse legal consequences
to the client, the lawyer's duty to the client under Rule 1.4 may require
that the lawyer offer advice if the client's course of action is related to
the representation. Similarly, when a matter is likely to involve
litigation, it may be necessary under Rule 1.4 to inform the client of
forms of dispute resolution that might constitute reasonable alternatives
to litigation. A lawyer ordinarily has no duty to initiate investigation of
a client's affairs or to give advice that the client has indicated is
unwanted, but a lawyer may initiate advice to a client when doing so
appears to be in the client's interest.
[Amended effective September 1, 2006.]
RPC RULE 2.2
(Deleted)
Washington Comment
[1] Former Washington RPC 2.2 governed lawyers acting as intermediaries
between clients. When representing multiple clients in the same matter, a
lawyer must comply with Rule 1.7. A number of special considerations apply
when a lawyer acts as an intermediary and represents multiple clients in
the same matter. See Comments [29] - [33] to Rule 1.7.
[Amended effective September 1, 2006.]
RPC RULE 2.3
EVALUATION FOR USE BY THIRD PERSONS
(a) A lawyer may provide an evaluation of a matter affecting a client
for the use of someone other than the client if the lawyer reasonably
believes that making the evaluation is compatible with other aspects of
the lawyer's relationship with the client.
(b) When the lawyer knows or reasonable should know that the evaluation
is likely to affect the client's interests materially and adversely, the
lawyer shall not provide the evaluation unless the client gives in formed
consent.
(c) Except as disclosure is authorized in connection with a report of an
evaluation, information relating to the evaluation is otherwise protected
by Rule 1.6.
Comment
Definition
[1] An evaluation may be performed at the client's direction or when
impliedly authorized in order to carry out the representation. See Rule
1.2. Such an evaluation may be for the primary purpose of establishing
information for the benefit of third parties; for example, an opinion
concerning the title of property rendered at the behest of a vendor for
the information of a prospective purchaser, or at the behest of a borrower
for the information of a prospective lender. In some situations, the
evaluation may be required by a government agency; for example, an opinion
concerning the legality of the securities registered for sale under the
securities laws. In other instances, the evaluation may be required by a
third person, such as a purchaser of a business.
[2] A legal evaluation should be distinguished from an investigation of
a person with whom the lawyer does not have a client-lawyer relationship.
For example, a lawyer retained by a purchaser to analyze a vendor's title
to property does not have a client-lawyer relationship with the vendor. So
also, an investigation into a person's affairs by a government lawyer, or
by special counsel by a government lawyer, or by special counsel employed
by the government, is not an evaluation as that term is used in this Rule.
The question is whether the lawyer is retained by the person whose affairs
are being examined. When the lawyer is retained by that person, the
general rules concerning loyalty to client and preservation of confidences
apply, which is not the case if the lawyer is retained by someone else.
For this reason, it is essential to identify the person by whom the lawyer
is retained. This should be made clear not only to the person under
examination, but also to others to whom the results are to be made available.
Duties Owed to Third Person and Client
[3] When the evaluation is intended for the information or use of a
third person, a legal duty to that person may or may not arise. That legal
question is beyond the scope of this Rule. However, since such an
evaluation involves a departure from the normal client-lawyer
relationship, careful analysis of the situation is required. The lawyer
must be satisfied as a matter of professional judgment that making the
evaluation is compatible with other functions undertaken in behalf of the
client. For example, if the lawyer is acting as advocate in defending the
client against charges of fraud, it would normally be incompatible with
that responsibility for the lawyer to perform an evaluation for others
concerning the same or a related transaction. Assuming no such impediment
is apparent, however, the lawyer should advise the client of the
implications of the evaluation, particularly the lawyer's responsibilities
to third persons and the duty to disseminate the findings.
Access to and Disclosure of Information
[4] The quality of an evaluation depends on the freedom and extent of
the investigation upon which it is based. Ordinarily a lawyer should have
whatever latitude of investigation seems necessary as a matter of
professional judgment. Under some circumstances, however, the terms of the
evaluation may be limited. For example, certain issues or sources may be
categorically excluded, or the scope of search may be limited by time
constraints or the noncooperation of persons having relevant information.
Any such limitations that are material to the evaluation should be
described in the report. If after a lawyer has commenced an evaluation,
the client refuses to comply with the terms upon which it was understood
the evaluation was to have been made, the lawyer's obligations are
determined by law, having reference to the terms of the client's agreement
and the surrounding circumstances. In no circumstances is the lawyer
permitted to knowingly make a false statement of material fact or law in
providing an evaluation under this Rule. See Rule 4.1.
Obtaining Client's Informed Consent
[5] Information relating to an evaluation is protected by Rule 1.6. In
many situations, providing an evaluation to a third party poses no
significant risk to the client; thus, the lawyer may be impliedly
authorized to disclose information to carry out the representation. See
Rule 1.6(a). Where, however, it is reasonably likely that providing the
evaluation will affect the client's interests materially and adversely,
the lawyer must first obtain the client's consent after the client has
been adequately informed concerning the important possible effects on the
client's interests. See Rules 1.6(a) and 1.0(e).
Financial Auditors' Requests for Information
[6] When a question concerning the legal situation of a client arises at
the instance of the client's financial auditor and the question is
referred to the lawyer, the lawyer's response may be made in accordance
with procedures recognized in the legal profession. Such a procedure is
set forth in the American Bar Association Statement of Policy Regarding
Lawyers' Responses to Auditors' Requests for Information, adopted in 1975.
[Amended effective September 1, 2006.]
RPC RULE 2.4
LAWYER SERVING AS THIRD-PARTY NEUTRAL
(a) A lawyer serves as a third-party neutral when the lawyer assists two
or more persons who are not clients of the lawyer to reach a resolution of
a dispute or other matter that has arisen between them. Service as a third-
party neutral may include service as an arbitrator, a mediator or in such
other capacity as will enable the lawyer to assist the parties to resolve
the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented
parties that the lawyer is not representing them. When the lawyer knows or
reasonably should know that a party does not understand the lawyer's role
in the matter, the lawyer shall explain the difference between the lawyer's
role as a third-party neutral and a lawyer's role as one who represents a
client.
Comment
[1] Alternative dispute resolution has become a substantial part of the
civil justice system. Aside from representing clients in dispute-resolution
processes, lawyers often serve as third-party neutrals. A third-party
neutral is a person, such as a mediator, arbitrator, conciliator or
evaluator, who assists the parties, represented or unrepresented, in the
resolution of a dispute or in the arrangement of a transaction. Whether a
third-party neutral serves primarily as a facilitator, evaluator or
decisionmaker depends on the particular process that is either selected by
the parties or mandated by a court.
[2] The role of a third-party neutral is not unique to lawyers, although,
in some court-connected contexts, only lawyers are allowed to serve in this
role or to handle certain types of cases. In performing this role, the
lawyer may be subject to court rules or other law that apply either to
third-party neutrals generally or to lawyers serving as third-party
neutrals. Lawyer-neutrals may also be subject to various codes of ethics,
such as the Code of Ethics for Arbitration in Commercial Disputes prepared
by a joint committee of the American Bar Association and the American
Arbitration Association or the Model Standards of Conduct for Mediators
jointly prepared by the American Bar Association, the American Arbitration
Association and the Society of Professionals in Dispute Resolution.
[3] Unlike nonlawyers who serve as third-party neutrals, lawyers serving
in this role may experience unique problems as a result of differences
between the role of a third-party neutral and a lawyer's service as a
client representative. The potential for confusion is significant when the
parties are unrepresented in the process. Thus, paragraph (b) requires a
lawyer-neutral to inform unrepresented parties that the lawyer is not
representing them. For some parties, particularly parties who frequently
use dispute-resolution processes, this information will be sufficient. For
others, particularly those who are using the process for the first time,
more information will be required. Where appropriate, the lawyer should
inform unrepresented parties of the important differences between the
lawyer's role as third-party neutral and a lawyer's role as a client
representative, including the inapplicability of the attorney-client
evidentiary privilege. The extent of disclosure required under this
paragraph will depend on the particular parties involved and the subject
matter of the proceeding, as well as the particular features of the dispute-
resolution process selected.
[4] A lawyer who serves as a third-party neutral subsequently may be
asked to serve as a lawyer representing a client in the same matter. The
conflicts of interest that arise for both the individual lawyer and the
lawyer's law firm are addressed in Rule 1.12.
[5] Lawyers who represent clients in alternative dispute-resolution
processes are governed by the Rules of Professional Conduct. When the
dispute-resolution process takes place before a tribunal, as in binding
arbitration (see Rule 1.0(m)), the lawyer's duty of candor is governed by
Rule 3.3. Otherwise, the lawyer's duty of candor toward both the third-
party neutral and other parties is governed by Rule 4.1.
[Amended effective September 1, 2006.]
RPC RULE 3.1
MERITORIOUS CLAIMS AND CONTENTIONS
A lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so that
is not frivolous, which includes a good faith argument for an extension,
modification or reversal of existing law. A lawyer for the defendant in a
criminal proceeding, or the respondent in a proceeding that could result in
incarceration, may nevertheless so defend the proceeding as to require that
every element of the case be established.
Comment
[1] The advocate has a duty to use legal procedure for the fullest
benefit of the client's cause, but also a duty not to abuse legal
procedure. The law, both procedural and substantive, establishes the limits
within which an advocate may proceed. However, the law is not always clear
and never is static. Accordingly, in determining the proper scope of
advocacy, account must be taken of the law's ambiguities and potential for change.
[2] The filing of an action or defense or similar action taken for a
client is not frivolous merely because the facts have not first been fully
substantiated or because the lawyer expects to develop vital evidence only
by discovery. What is required of lawyers, however, is that they inform
themselves about the facts of their clients' cases and the applicable law
and determine that they can make good faith arguments in support of their
clients' positions. Such action is not frivolous even though the lawyer
believes that the client's position ultimately will not prevail. The action
is frivolous, however, if the lawyer is unable either to make a good faith
argument on the merits of the action taken or to support the action taken
by a good faith argument for an extension, modification or reversal of
existing law.
[3] The lawyer's obligations under this Rule are subordinate to federal
or state constitutional law that entitles a defendant in a criminal matter
to the assistance of counsel in presenting a claim or contention that
otherwise would be prohibited by this Rule.
[Amended effective September 1, 2006.]
RPC RULE 3.2
EXPEDITING LITIGATION
A lawyer shall make reasonable efforts to expedite litigation consistent
with the interests of the client.
Comment
[1] Dilatory practices bring the administration of justice into
disrepute. Although there will be occasions when a lawyer may properly seek
a postponement for personal reasons, it is not proper for a lawyer to
routinely fail to expedite litigation solely for the convenience of the
advocates. Nor will a failure to expedite be reasonable if done for the
purpose of frustrating an opposing party's attempt to obtain rightful
redress or repose. It is not a justification that similar conduct is often
tolerated by the bench and bar. The question is whether a competent lawyer
acting in good faith would regard the course of action as having some
substantial purpose other than delay. Realizing financial or other benefit
from otherwise improper delay in litigation is not legitimate interest of
the client.
[Amended effective September 1, 2006.]
RULE 3.3
CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to the
tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is
necessary to avoid assisting a criminal or fraudulent act by the client
unless such disclosure is prohibited by Rule 1.6;
(3) fail to disclose to the tribunal legal authority in the
controlling jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding.
(c) If the lawyer has offered material evidence and comes to know of its
falsity, the lawyer shall promptly disclose this fact to the tribunal
unless such disclosure is prohibited by Rule 1.6.
(d) If the lawyer has offered material evidence and comes to know of its
falsity, and disclosure of this fact is prohibited by Rule 1.6, the lawyer
shall promptly make reasonable efforts to convince the client to consent
to disclosure. If the client refuses to consent to disclosure, the lawyer
may seek to withdraw from the representation in accordance with Rule 1.16.
(e) A lawyer may refuse to offer evidence that the lawyer reasonably
believes is false.
(f) In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to make
an informed decision, whether or not the facts are adverse.
Comment
[1] [Washington revision] This Rule governs the conduct of a lawyer who
is representing a client in the proceedings of a tribunal. See Rule 1.0(m)
for the definition of "tribunal." It also applies when the lawyer is
representing a client in an ancillary proceeding conducted pursuant to
the tribunal's adjudicative authority, such as a deposition.
[2] This Rule sets forth the special duties of lawyers as officers of
the court to avoid conduct that undermines the integrity of the
adjudicative process. A lawyer acting as an advocate in an adjudicative
proceeding has an obligation to present the client's case with persuasive
force. Performance of that duty while maintaining confidences of the
client, however, is qualified by the advocate's duty of candor to the
tribunal. Consequently, although a lawyer in an adversary proceeding is
not required to present an impartial exposition of the law or to vouch for
the evidence submitted in a cause, the lawyer must not allow the tribunal
to be misled by false statements of law or fact or evidence that the
lawyer knows to be false.
Representations by a Lawyer
[3] [Washington revision] An advocate is responsible for pleadings and
other documents prepared for litigation, but is usually not required to
have personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by someone on
the client's behalf, and not assertions by the lawyer. Compare Rule 3.1.
However, an assertion purporting to be on the lawyer's own knowledge, as
in an affidavit by the lawyer or in a statement in open court, may
properly be made only when the lawyer knows the assertion is true or
believes it to be true on the basis of a reasonably diligent inquiry.
There are circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation. The obligation prescribed
in Rule 1.2(d) not to counsel a client to commit or assist the client in
committing a fraud applies in litigation. Regarding compliance with Rule
1.2(d), see the Comment to that Rule. See also Comment [4] to Rule 8.4.
Legal Argument
[4] Legal argument based on a knowingly false representation of law
constitutes dishonesty toward the tribunal. A lawyer is not required to
make a disinterested exposition of the law, but must recognize the
existence of pertinent legal authorities. Furthermore, as stated in
paragraph (a)(3), an advocate has a duty to disclose directly adverse
authority in the controlling jurisdiction that has not been disclosed by
the opposing party. The underlying concept is that legal argument is a
discussion seeking to determine the legal premises properly applicable to the case.
Offering Evidence
[5] [Reserved.]
[6] If a lawyer knows that the client intends to testify falsely or
wants the lawyer to introduce false evidence, the lawyer should seek to
persuade the client that the evidence should not be offered. If the
persuasion is ineffective and the lawyer continues to represent the
client, the lawyer must refuse to offer the false evidence. If only a
portion of a witness's testimony will be false, the lawyer may call the
witness to testify but may not elicit or otherwise permit the witness to
present the testimony that the lawyer knows is false.
[7] [Washington revision] The duties stated in paragraphs (a) apply to
all lawyers, including defense counsel in criminal cases. In some
jurisdictions other than Washington, however, courts have required counsel
to present the accused as a witness or to give a narrative statement if
the accused so desires, even if counsel knows that the testimony or
statement will be false. The obligation of the advocate under the Rules of
Professional Conduct is subordinate to such requirements. See State v.
Berrysmith, 87 Wn. App. 268, 944 P.2d 397 (1997), review denied, 134 Wn.2d
1008, 954 P.2d 277 (1998).
[8] The prohibition against offering false evidence only applies if the
lawyer knows that the evidence is false. A lawyer's reasonable belief that
evidence is false does not preclude its presentation to the trier of fact.
A lawyer's knowledge that evidence is false, however, can be inferred from
the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve
doubts about the veracity of testimony or other evidence in favor of the
client, the lawyer cannot ignore an obvious falsehood.
[9] [Reserved.]
Remedial Measures
[10] [Reserved.]
[11] The disclosure of a client's false testimony can result in grave
consequences to the client, including not only a sense of betrayal but
also loss of the case and perhaps a prosecution for perjury. But the
alternative is that the lawyer cooperate in deceiving the court, thereby
subverting the truth-finding process which the adversary system is
designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly
understood that the lawyer will act upon the duty to disclose the
existence of false evidence, the client can simply reject the lawyer's
advice to reveal the false evidence and insist that the lawyer keep
silent. Thus the client could in effect coerce the lawyer into being a
party to fraud on the court.
Preserving Integrity of Adjudicative Process
[12] [Washington revision] Lawyers have a special obligation to protect
a tribunal against criminal or fraudulent conduct that undermines the
integrity of the adjudicative process, such as bribing, intimidating or
otherwise unlawfully communicating with a witness, juror, court official
or other participant in the proceeding, unlawfully destroying or
concealing documents or other evidence or failing to disclose information
to the tribunal when required by law to do so.
Duration of Obligation
[13] A practical time limit on the obligation to rectify false evidence
or false statements of law and fact has to be established. The conclusion
of the proceeding is a reasonably definite point for the termination of
the obligation. A proceeding has concluded within the meaning of this Rule
when a final judgment in the proceeding has been affirmed on appeal or the
time for review has passed.
Ex Parte Proceedings
[14] Ordinarily, an advocate has the limited responsibility of
presenting one side of the matters that a tribunal should consider in
reaching a decision; the conflicting position is expected to be presented
by the opposing party. However, in any ex parte proceeding, such as an
application for a temporary restraining order, there is no balance of
presentation by opposing advocates. The object of an ex parte proceeding
is nevertheless to yield a substantially just result. The judge has an
affirmative responsibility to accord the absent party just consideration.
The lawyer for the represented party has the correlative duty to make
disclosures of material facts known to the lawyer and that the lawyer
reasonably believes are necessary to an informed decision.
Withdrawal
[15] [Washington revision] Normally, a lawyer's compliance with the duty
of candor imposed by this Rule does not require that the lawyer withdraw
from the representation of a client whose interests will be or have been
adversely affected by the lawyer's disclosure. The lawyer may, however, be
required by Rule 1.16(a) to seek permission of the tribunal to withdraw if
the lawyer's compliance with this Rule's duty of candor results in such an
extreme deterioration of the client-lawyer relationship that the lawyer
can no longer competently represent the client. See also Rule 1.16(b) for
the circumstances in which a lawyer will be permitted to seek a tribunal's
permission to withdraw. In connection with a request for permission to
withdraw that is premised on a client's misconduct, a lawyer may reveal
information relating to the representation as permitted by Rule 1.6.
[Amended effective September 1, 2006.]
RULE 3.4:
FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully
alter, destroy or conceal a document or other material having potential
evidentiary value. A lawyer shall not counsel or assist another person to do
any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or
offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for
an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make
reasonably diligent effort to comply with a legally proper discovery request by
an opposing party; or
(e) in trial, allude to any matter that the lawyer does not reasonably
believe is relevant or that will not be supported by admissible evidence,
assert personal knowledge of facts in issue except when testifying as a
witness, or state personal opinion as to the justness of a cause, the
credibility of a witness, the culpability of a civil litigant or the guilt or
innocence of an accused.
(f) [Reserved.]
Comment
[1] The procedure of the adversary system contemplates that the evidence in
a case is to be marshaled competitively by the contending parties. Fair
competition in the adversary system is secured by prohibitions against
destruction or concealment of evidence, improperly influencing witnesses,
obstructive tactics in discovery procedure, and the like.
[2] Documents and other items of evidence are often essential to establish a
claim or defense. Subject to evidentiary privileges, the right of an opposing
party, including the government, to obtain evidence through discovery or
subpoena is an important procedural right. The exercise of that right can be
frustrated if relevant material is altered, concealed or destroyed. Applicable
law in many jurisdictions makes it an offense to destroy material for purpose
of impairing its availability in a pending proceeding or one whose commencement
can be foreseen. Falsifying evidence is also generally a criminal offense.
Paragraph (a) applies to evidentiary material generally, including computerized
information. Applicable law may permit a lawyer to take temporary possession of
physical evidence of client crimes for the purpose of conducting a limited
examination that will not alter or destroy material characteristics of the
evidence. In such a case, applicable law may require the lawyer to turn the
evidence over to the police or other prosecuting authority, depending on the circumstances.
[3] With regard to paragraph (b), it is not improper to pay a witness's
expenses or to compensate an expert witness on terms permitted by law. The
common law rule in most jurisdictions is that it is improper to pay an
occurrence witness any fee for testifying and that it is improper to pay an
expert witness a contingent fee.
[4] [Reserved.]
Additional Washington Comment (5)
[5] Washington did not adopt Model Rule 3.4(f), which delineates
circumstances in which a lawyer may request that a person other than a client
refrain from voluntarily giving information to another party, because the Model
Rule is inconsistent with Washington law. See Wright v. Group Health Hospital,
103 Wn.2d 192, 691 P.2d 564 (1984). Advising or requesting that a person other
than a client refrain from voluntarily giving information to another party may
violate other Rules. See, e.g., Rule 8.4(d).
[Amended effective September 1, 2006; September 1, 2011.]
RPC RULE 3.5
IMPARTIALITY AND DECORUM OF THE TRIBUNAL
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official
by means prohibited by law;
(b) communicate ex parte with such a person during the proceeding unless
authorized to do so by law or court order;
(c) communicate with a juror or prospective juror after discharge of the
jury if:
(1) the communication is prohibited by law or court order;
(2) the juror has made known to the lawyer a desire not to
communicate; or
(3) the communication involves misrepresentation, coercion, duress or
harassment; or
(d) engage in conduct intended to disrupt a tribunal.
Comment
[1] [Washington revision] Many forms of improper influence upon a
tribunal are proscribed by criminal law. Others are specified in the
Washington Code of Judicial Conduct, with which an advocate should be
familiar. A lawyer is required to avoid contributing to a violation of such
provisions.
[2] During a proceeding a lawyer may not communicate ex parte with
persons serving in an official capacity in the proceeding, such as judges,
masters or jurors, unless authorized to do so by law or court order.
[3] A lawyer may on occasion want to communicate with a juror or
prospective juror after the jury has been discharged. The lawyer may do so
unless the communication is prohibited by law or a court order but must
respect the desire of the juror not to talk with the lawyer. The lawyer may
not engage in improper conduct during the communication.
[4] The advocate's function is to present evidence and argument so that
the cause may be decided according to law. Refraining from abusive or
obstreperous conduct is a corollary of the advocate's right to speak on
behalf of litigants. A lawyer may stand firm against abuse by a judge but
should avoid reciprocation; the judge's default is no justification for
similar dereliction by an advocate. An advocate can present the cause,
protect the record for subsequent review and preserve professional
integrity by patient firmness no less effectively than by belligerence or
theatrics.
[5] The duty to refrain from disruptive conduct applies to any proceeding
of a tribunal, including a deposition. See Rule 1.0(m).
[Amended effective September 1, 2006.]
RPC RULE 3.6
TRIAL PUBLICITY
(a) A lawyer who is participating or has participated in the
investigation or litigation of a matter shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be
disseminated by means of public communication and will have a substantial
likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when
prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information
necessary thereto;
(6) a warning of danger concerning the behavior of a person
involved, when there is reason to believe that there exists the
likelihood of substantial harm to an individual or to the public
interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information
necessary to aid in apprehension of the person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or
agencies and the length of the investigation.
(c) Notwithstanding paragraph (a), a lawyer may make a statement that a
reasonable lawyer would believe is required to protect a client from the
substantial undue prejudicial effect of recent publicity not initiated by
the lawyer or the lawyer's client. A statement made pursuant to this
paragraph shall be limited to such information as is necessary to
mitigate the recent adverse publicity.
(d) No lawyer associated in a firm or government agency with a lawyer
subject to paragraph (a) shall make a statement prohibited by paragraph (a).
Comment
[1] It is difficult to strike a balance between protecting the right to
a fair trial and safeguarding the right of free expression. Preserving
the right to a fair trial necessarily entails some curtailment of the
information that may be disseminated about a party prior to trial,
particularly where trial by jury is involved. If there were no such
limits, the result would be the practical nullification of the protective
effect of the rules of forensic decorum and the exclusionary rules of
evidence. On the other hand, there are vital social interests served by
the free dissemination of information about events having legal
consequences and about legal proceedings themselves. The public has a
right to know about threats to its safety and measures aimed at assuring
its security. It also has a legitimate interest in the conduct of
judicial proceedings, particularly in matters of general public concern.
Furthermore, the subject matter of legal proceedings is often of direct
significance in debate and deliberation over questions of public policy.
[2] Special rules of confidentiality may validly govern proceedings in
juvenile, domestic relations and mental disability proceedings, and
perhaps other types of litigation. Rule 3.4(c) requires compliance with
such rules.
[3] The Rule sets forth a basic general prohibition against a lawyer's
making statements that the lawyer knows or should know will have a
substantial likelihood of materially prejudicing an adjudicative
proceeding. Recognizing that the public value of informed commentary is
great and the likelihood of prejudice to a proceeding by the commentary
of a lawyer who is not involved in the proceeding is small, the Rule
applies only to lawyers who are, or who have been involved in the
investigation or litigation of a case, and their associates.
[4] Paragraph (b) identifies specific matters about which a lawyer's
statements would not ordinarily be considered to present a substantial
likelihood of material prejudice, and should not in any event be
considered prohibited by the general prohibition of paragraph (a).
Paragraph (b) is not intended to be an exhaustive listing of the subjects
upon which a lawyer may make a statement, but statements on other matters
may be subject to paragraph (a).
[5] There are, on the other hand, certain subjects that are more likely
than not to have a material prejudicial effect on a proceeding,
particularly when they refer to a civil matter triable to a jury, a
criminal matter, or any other proceeding that could result in
incarceration. These subjects relate to:
(1) the character, credibility, reputation or criminal record of a
party, suspect in a criminal investigation or witness, or the identity of
a witness, or the expected testimony of a party or witness;
(2) in a criminal case or proceeding that could result in
incarceration, the possibility of a plea of guilty to the offense or the
existence or contents of any confession, admission, or statement given by
a defendant or suspect or that person's refusal or failure to make a
statement;
(3) the performance or results of any examination or test or the
refusal or failure of a person to submit to an examination or test, or
the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or
suspect in a criminal case or proceeding that could result in
incarceration;
(5) information that the lawyer knows or reasonably should know is
likely to be inadmissible as evidence in a trial and that would, if
disclosed, create a substantial risk of prejudicing an impartial trial;
or
(6) the fact that a defendant has been charged with a crime, unless
there is included therein a statement explaining that the charge is
merely an accusation and that the defendant is presumed innocent until
and unless proven guilty.
[6] Another relevant factor in determining prejudice is the nature of
the proceeding involved. Criminal jury trials will be most sensitive to
extrajudicial speech. Civil trials may be less sensitive. Non-jury
hearings and arbitration proceedings may be even less affected. The Rule
will still place limitations on prejudicial comments in these cases, but
the likelihood of prejudice may be different depending on the type of proceeding.
[7] Finally, extrajudicial statements that might otherwise raise a
question under this Rule may be permissible when they are made in
response to statements made publicly by another party, another party's
lawyer, or third persons, where a reasonable lawyer would believe a
public response is required in order to avoid prejudice to the lawyer's
client. When prejudicial statements have been publicly made by others,
responsive statements may have the salutary effect of lessening any
resulting adverse impact on the adjudicative proceeding. Such responsive
statements should be limited to contain only such information as is
necessary to mitigate undue prejudice created by the statements made by others.
[8] See Rule 3.8(f) for additional duties of prosecutors in connection
with extrajudicial statements about criminal proceedings.
Additional Washington Comment (9)
[9] For additional guidance in applying this Rule, see the Guidelines
for Applying Rule 3.6, reproduced in the Appendix to the Rules of
Professional Conduct.
[Amended effective September 1, 2006.]
RPC RULE 3.7
LAWYER AS WITNESS
(a) A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case;
(3) disqualification of the lawyer would work substantial hardship on
the client; or
(4) the lawyer has been called by the opposing party and the court
rules that the lawyer may continue to act as an advocate; or
(b) A lawyer may act as advocate in a trial in which another lawyer in
the lawyer's firm is likely to be called as a witness unless precluded
from doing so by Rule 1.7 or Rule 1.9.
Comment
[1] Combining the roles of advocate and witness can prejudice the
tribunal and the opposing party and can also involve a conflict of
interest between the lawyer and client.
Advocate-Witness Rule
[2] The tribunal has proper objection when the trier of fact may be
confused or misled by a lawyer serving as both advocate and witness. The
opposing party has proper objection where the combination of roles may
prejudice that party's rights in the litigation. A witness is required to
testify on the basis of personal knowledge, while an advocate is expected
to explain and comment on evidence given by others. It may not be clear
whether a statement by an advocate-witness should be taken as proof or as
an analysis of the proof.
[3] [Washington revision] To protect the tribunal, paragraph (a)
prohibits a lawyer from simultaneously serving as advocate and necessary
witness except in those circumstances specified in paragraphs (a)(1)
through (a)(4). Paragraph (a)(1) recognizes that if the testimony will be
uncontested, the ambiguities in the dual role are purely theoretical.
Paragraph (a)(2) recognizes that where the testimony concerns the extent
and value of legal services rendered in the action in which the testimony
is offered, permitting the lawyers to testify avoids the need for a second
trial with new counsel to resolve that issue. Moreover, in such a
situation the judge has firsthand knowledge of the matter in issue; hence,
there is less dependence on the adversary process to test the credibility
of the testimony.
[4] Apart from these two exceptions, paragraph (a)(3) recognizes that a
balancing is required between the interests of the client and those of the
tribunal and the opposing party. Whether the tribunal is likely to be
misled or the opposing party is likely to suffer prejudice depends on the
nature of the case, the importance and probable tenor of the lawyer's
testimony, and the probability that the lawyer's testimony will conflict
with that of other witnesses. Even if there is risk of such prejudice, in
determining whether the lawyer should be disqualified, due regard must be
given to the effect of disqualification on the lawyer's client. It is
relevant that one or both parties could reasonably foresee that the lawyer
would probably be a witness. The conflict of interest principles stated in
Rules 1.7, 1.9 and 1.10 have no application to this aspect of the problem.
[5] Because the tribunal is not likely to be misled when a lawyer acts
as advocate in a trial in which another lawyer in the lawyer's firm will
testify as a necessary witness, paragraph (b) permits the lawyer to do so
except in situations involving a conflict of interest.
Conflict of Interest
[6] [Washington revision] In determining if it is permissible to act as
advocate in a trial in which the lawyer will be a necessary witness, the
lawyer must also consider that the dual role may give rise to a conflict
of interest that will require compliance with Rules 1.7 or 1.9. For
example, if there is likely to be substantial conflict between the
testimony of the client and that of the lawyer, the representation
involves a conflict of interest that requires compliance with Rule 1.7.
This would be true even though the lawyer might not be prohibited by
paragraph (a) from simultaneously serving as advocate and witness because
the lawyer's disqualification would work a substantial hardship on the
client. Similarly, a lawyer who might be permitted to simultaneously serve
as an advocate and a witness by paragraph (a)(3) or (a)(4) might be
precluded from doing so by Rule 1.9. The problem can arise whether the
lawyer is called as a witness on behalf of the client or is called by the
opposing party. Determining whether or not such a conflict exists is
primarily the responsibility of the lawyer involved. If there is a
conflict of interest, the lawyer must secure the client's informed
consent, confirmed in writing. In some cases, the lawyer will be precluded
from seeking the client's consent. See Rule 1.7. See Rule 1.0(b) for the
definition of "confirmed in writing" and Rule 1.0(e) for the definition of
"informed consent."
[7] Paragraph (b) provides that a lawyer is not disqualified from
serving as an advocate because a lawyer with whom the lawyer is associated
in a firm is precluded from doing so by paragraph (a). If, however, the
testifying lawyer would also be disqualified by Rule 1.7 or Rule 1.9 from
representing the client in the matter, other lawyers in the firm will be
precluded from representing the client by Rule 1.10 unless the client
gives informed consent under the conditions stated in Rule 1.7.
Additional Washington Comment (8)
[8] When a lawyer is called to testify as a witness by the adverse
party, there is a risk that Rule 3.7 is being inappropriately used as a
tactic to obtain disqualification of the lawyer. Paragraph (a)(4) is
intended to confer discretion on the tribunal in determining whether
disqualification is truly warranted in such circumstances. The provisions
of paragraph (a)(4) were taken from former Washington RPC 3.7(c).
[Amended effective September 1, 2006.]
RULE 3.8
SPECIAL RESPONSIBILITIES OF A PROSECUTOR
The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not
supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of
the right to, and the procedure for obtaining, counsel and has been given
reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important
pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information
known to the prosecutor that tends to negate the guilt of the accused or
mitigates the offense and, in connection with sentencing, disclose to the
defense and to the tribunal all mitigating information known to the prosecutor,
except when the prosecutor is relieved of this responsibility by a protective
order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to
present evidence about a past or present client unless the prosecutor believes:
(1) the information sought is not protected from disclosure by an applicable privilege;
(2) the evidence sought is essential to the successful completion of an
ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the
nature and extent of the prosecutor?s action and that serve a legitimate law
enforcement purpose, refrain from making extrajudicial comments that have a
substantial likelihood of heightening public condemnation of the accused and
exercise reasonable care to prevent investigators, law enforcement personnel,
employees or other persons assisting or associated with the prosecutor in a
criminal case from making an extrajudicial statement that the prosecutor would
be prohibited from making under Rule 3.6 or this Rule.
(g) When a prosecutor knows of new, credible and material evidence creating a
reasonable likelihood that a convicted defendant is innocent of the offense of
which the defendant was convicted the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor?s jurisdiction,
(A) promptly disclose that evidence to the defendant unless a court
authorizes delay, and
(B) make reasonable efforts to inquire into the matter, or make
reasonable efforts to cause the appropriate law enforcement agency to
undertake an investigation into the matter.
(h)[Reserved.]
(i) A prosecutor?s independent judgment, made in good faith, that the
evidence is not of such nature as to trigger the obligations of paragraph (g)
of this Rule, though subsequently determined to have been erroneous, does not
constitute a violation of this Rule.
Comment
[1] [Washington Revision.] A prosecutor has the responsibility of a minister
of justice and not simply that of an advocate. This responsibility carries with
it specific obligations to see that the defendant is accorded procedural
justice and that guilt is decided upon the basis of sufficient evidence. The
extent of mandated remedial action is a matter of debate and varies in
different jurisdictions. Many jurisdictions have adopted the ABA Standards of
Criminal Justice Relating to the Prosecution Function, which in turn are the
product of prolonged and careful deliberation by lawyers experienced in both
criminal prosecution and defense. Competent representation of the government
may require a prosecutor to undertake some procedural and remedial measures as
a matter of obligation. Applicable law may require other measures by the
prosecutor and knowing disregard of those obligations or a systematic abuse of
prosecutorial discretion could constitute a violation of Rule 8.4.
[2] In some jurisdictions, a defendant may waive a preliminary hearing and
thereby lose a valuable opportunity to challenge probable cause. Accordingly,
prosecutors should not seek to obtain waivers of preliminary hearings or other
important pretrial rights from unrepresented accused persons. Paragraph (c)
does not apply, however, to an accused appearing pro se with the approval of
the tribunal. Nor does it forbid the lawful questioning of an uncharged suspect
who has knowingly waived the rights to counsel and silence.
[3] The exception in paragraph (d) recognizes that a prosecutor may seek an
appropriate protective order from the tribunal if disclosure of information to
the defense could result in substantial harm to an individual or to the public interest.
[4] Paragraph (e) is intended to limit the issuance of lawyer subpoenas in
grand jury and other criminal proceedings to those situations in which there is
a genuine need to intrude into the client-lawyer relationship.
[5] Paragraph (f) supplements Rule 3.6, which prohibits extrajudicial
statements that have a substantial likelihood of prejudicing an adjudicatory
proceeding. In the context of a criminal prosecution, a prosecutor?s
extrajudicial statement can create the additional problem of increasing public
condemnation of the accused. Although the announcement of an indictment, for
example, will necessarily have severe consequences for the accused, a
prosecutor can, and should, avoid comments which have no legitimate law
enforcement purpose and have a substantial likelihood of increasing public
opprobrium of the accused. Nothing in this Comment is intended to restrict the
statements which a prosecutor may make which comply with Rule 3.6(b) or 3.6(c).
[6] Like other lawyers, prosecutors are subject to Rules 5.1 and 5.3, which
relate to responsibilities regarding lawyers and nonlawyers who work for or are
associated with the lawyer?s office. Paragraph (f) reminds the prosecutor of
the importance of these obligations in connection with the unique dangers of
improper extrajudicial statements in a criminal case. In addition, paragraph
(f) requires a prosecutor to exercise reasonable care to prevent persons
assisting or associated with the prosecutor from making improper extrajudicial
statements, even when such persons are not under the direct supervision of the
prosecutor. Ordinarily, the reasonable care standard will be satisfied if the
prosecutor issues the appropriate cautions to law-enforcement personnel and
other relevant individuals.
[7] [Washington revision.] When a prosecutor knows of new, credible and
material evidence creating a reasonable likelihood that a person outside the
prosecutor?s jurisdiction was convicted of a crime that the person is innocent
of committing, paragraph (g) requires prompt disclosure to the court or other
appropriate authority, such as the chief prosecutor of the jurisdiction where
the conviction occurred. If the conviction was obtained in the prosecutor?s
jurisdiction, paragraph (g) requires the prosecutor to make reasonable efforts
to inquire into the matter to determine whether the defendant is in fact
innocent, or make reasonable efforts to cause the appropriate law enforcement
agency to undertake an investigation into the matter.
[8] [Reserved.]
[9] [Reserved. Comment [9] to Model Rule 3.8 is codified, with minor
revisions, as paragraph (i).]
[Amended effective September 1, 2006, December 13, 2011.]
RULE 3.9
ADVOCATE IN NONADJUDICATIVE PROCEEDINGS
A lawyer representing a client before a legislative body or
administrative agency in a nonadjudicative proceeding shall disclose that
the appearance is in a representative capacity and shall conform to the
provisions of rules 3.3(a) through (e), 3.4(a) through (c), and 3.5.
Comment
[1] In representation before bodies such as legislatures, municipal
councils, and executive and administrative agencies acting in a rule-making
or policy-making capacity, lawyers present facts, formulate issues and
advance argument in the matters under consideration. The decision-making
body, like a court, should be able to rely on the integrity of the
submissions made to it. A lawyer appearing before such a body must deal
with it honestly and in conformity with applicable rules of procedure. See
Rules 3.3(a) through (e), 3.4(a) through (c), and 3.5.
[2] Lawyers have no exclusive right to appear before nonadjudicative
bodies, as they do before a court. The requirements of this Rule therefore
may subject lawyers to regulations inapplicable to advocates who are not
lawyers. However, legislatures and administrative agencies have a right to
expect lawyers to deal with them as they deal with courts.
[3] This Rule only applies when a lawyer represents a client in
connection with an official hearing or meeting of a governmental agency or
a legislative body to which the lawyer or the lawyer's client is presenting
evidence or argument. It does not apply to representation of a client in a
negotiation or other bilateral transaction with a governmental agency or in
connection with an application for a license or other privilege or the
client's compliance with generally applicable reporting requirements, such
as the filing of income-tax returns. Nor does it apply to the
representation of a client in connection with an investigation or
examination of the client's affairs conducted by government investigators
or examiners. Representation in such matters is governed by Rules 4.1
through 4.4.
[Amended effective September 1, 2006.]
RPC RULE 4.1
TRUTHFULNESS IN STATEMENTS TO OTHERS
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is
necessary to avoid assisting a criminal or fraudulent act by a client,
unless disclosure is prohibited by Rule 1.6.
Comment
Misrepresentation
[1] A lawyer is required to be truthful when dealing with others on a
client's behalf, but generally has no affirmative duty to inform an
opposing party of relevant facts. A misrepresentation can occur if the
lawyer incorporates or affirms a statement of another person that the
lawyer knows is false. Misrepresentations can also occur by partially true
but misleading statements or omissions that are the equivalent of
affirmative false statements. For dishonest conduct that does not amount to
a false statement or for misrepresentations by a lawyer other than in the
course of representing a client, see Rule 8.4.
Statements of Fact
[2] This Rule refers to statements of fact. Whether a particular
statement should be regarded as one of fact can depend on the
circumstances. Under generally accepted conventions in negotiation, certain
types of statements ordinarily are not taken as statements of material
fact. Estimates of price or value placed on the subject of a transaction
and a party's intentions as to an acceptable settlement of a claim are
ordinarily in this category, and so is the existence of an undisclosed
principal except where nondisclosure of the principal would constitute
fraud. Lawyers should be mindful of their obligations under applicable law
to avoid criminal and tortious misrepresentation.
Crime or Fraud by Client
[3] Under Rule 1.2(d), a lawyer is prohibited from counseling or
assisting a client in conduct that the lawyer knows is criminal or
fraudulent. Paragraph (b) states a specific application of the principle
set forth in Rule 1.2(d) and addresses the situation where a client's crime
or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer
can avoid assisting a client's crime or fraud by withdrawing from the
representation. Sometimes it may be necessary for the lawyer to give notice
of the fact of withdrawal and to disaffirm an opinion, document,
affirmation or the like. In extreme cases, substantive law may require a
lawyer to disclose information relating to the representation to avoid
being deemed to have assisted the client's crime or fraud. If the lawyer
can avoid assisting a client's crime or fraud only by disclosing this
information, then under paragraph (b) the lawyer is required to do so,
unless the disclosure is prohibited by Rule 1.6.
[Amended effective September 1, 2006.]
RPC RULE 4.2
COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL
In representing a client, a lawyer shall not communicate about the
subject of the representation with a person the lawyer knows to be
represented by another lawyer in the matter, unless the lawyer has the
consent of the other lawyer or is authorized to do so by law or a
court order.
Comment
[1] This Rule contributes to the proper functioning of the legal
system by protecting a person who has chosen to be represented by a
lawyer in a matter against possible overreaching by other lawyers who
are participating in the matter, interference by those lawyers with
the client-lawyer relationship and the uncounselled disclosure of
information relating to the representation.
[2] This Rule applies to communications with any person who is
represented by counsel concerning the matter to which the
communication relates.
[3] The Rule applies even though the represented person initiates or
consents to the communication. A lawyer must immediately terminate
communication with a person if, after commencing communication, the
lawyer learns that the person is one with whom communication is not
permitted by this Rule.
[4] This Rule does not prohibit communication with a represented
person, or an employee or agent of such a person, concerning matters
outside the representation. For example, the existence of a
controversy between a government agency and a private party, or
between two organizations, does not prohibit a lawyer for either from
communicating with nonlawyer representatives of the other regarding a
separate matter. Nor does this Rule preclude communication with a
represented person who is seeking advice from a lawyer who is not
otherwise representing a client in the matter. A lawyer may not make a
communication prohibited by this Rule through the acts of another. See
Rule 8.4(a). Parties to a matter may communicate directly with each
other, and a lawyer is not prohibited from advising a client
concerning a communication that the client is legally entitled to
make. Also, a lawyer having independent justification or legal
authorization for communicating with a represented person is permitted
to do so.
[5] Communications authorized by law may include communications by a
lawyer on behalf of a client who is exercising a constitutional or
other legal right to communicate with the government. Communications
authorized by law may also include investigative activities of lawyers
representing governmental entities, directly or through investigative
agents, prior to the commencement of criminal or civil enforcement
proceedings. When communicating with the accused in a criminal matter,
a government lawyer must comply with this Rule in addition to honoring
the constitutional rights of the accused. The fact that a
communication does not violate a state or federal constitutional right
is insufficient to establish that the communication is permissible
under this Rule.
[6] A lawyer who is uncertain whether a communication with a
represented person is permissible may seek a court order. A lawyer may
also seek a court order in exceptional circumstances to authorize a
communication that would otherwise be prohibited by this Rule, for
example, where communication with a person represented by counsel is
necessary to avoid reasonably certain injury.
[7] [Washington revision] In the case of a represented organization,
this Rule prohibits communications with a constituent of the
organization who supervises, directs or regularly consults with the
organization's lawyer concerning the matter or has authority to
obligate the organization with respect to the matter. Consent of the
organization's lawyer is not required for communication with a former
constituent. If a constituent of the organization is represented in
the matter by his or her own counsel, the consent by that counsel to a
communication will be sufficient for purposes of this Rule. In
communicating with a current or former constituent of an organization,
a lawyer must not use methods of obtaining evidence that violate the
legal rights of the organization. See Rule 4.4.
[8] The prohibition on communication with a represented person only
applies in circumstances where the lawyer knows that the person is in
fact represented in the matter to be discussed. This means that the
lawyer has actual knowledge of the fact of the representation; but
such actual knowledge may be inferred from the circumstances. See Rule
1.0(f). Thus, the lawyer cannot evade the requirement of obtaining the
consent of counsel by closing eyes to the obvious.
[9] In the event the person with whom the lawyer communicates is not
known to be represented by counsel in the matter, the lawyer's
communications are subject to Rule 4.3.
Additional Washington Comments (10 - 11)
[10] Comment [7] to Model Rule 4.2 was revised to conform to
Washington law. The phrase "or whose act or omission in connection
with the matter may be imputed to the organization for purposes of
civil or criminal liability" and the reference to Model Rule 3.4(f)
was deleted. Whether and how lawyers may communicate with employees of
an adverse party is governed by Wright v. Group Health Hospital, 103
Wn.2d 192, 691 P.2d 564 (1984). See also Washington Comment [5] to
Rule 3.4.
[11] An otherwise unrepresented person to whom limited
representation is being provided or has been provided in accordance
with Rule 1.2(c) is considered to be unrepresented for purposes of
this Rule unless the opposing lawyer knows of, or has been provided
with, a written notice of appearance under which, or a written notice
of time period during which, he or she is to communicate only with the
limited representation lawyer as to the subject matter within the
limited scope of the representation. (The provisions of this Comment
were taken from former Washington RPC 4.2(b)).
[Amended effective September 1, 2006.]
RPC RULE 4.3
DEALING WITH UNREPRESENTED PERSON
In dealing on behalf of a client with a person who is not
represented by counsel, a lawyer shall not state or imply that the
lawyer is disinterested. When the lawyer knows or reasonably should
know that the unrepresented person misunderstands the lawyer's role in
the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an
unrepresented person, other than the advice to secure counsel, if the
lawyer knows or reasonably should know that the interests of such a
person are or have a reasonable possibility of being in conflict with
the interests of the client.
Comment
[1] An unrepresented person, particularly one not experienced in
dealing with legal matters, might assume that a lawyer is
disinterested in loyalties or is a disinterested authority on the law
even when the lawyer represents a client. In order to avoid a
misunderstanding, a lawyer will typically need to identify the
lawyer's client and, where necessary, explain that the client has
interests opposed to those of the unrepresented person. For
misunderstandings that sometimes arise when a lawyer for an
organization deals with an unrepresented constituent, see Rule 1.13(f).
[2] The Rule distinguishes between situations involving
unrepresented persons whose interests may be adverse to those of the
lawyer's client and those in which the person's interests are not in
conflict with the client's. In the former situation, the possibility
that the lawyer will compromise the unrepresented person's interests
is so great that the Rule prohibits the giving of any advice, apart
from the advice to obtain counsel. Whether a lawyer is giving
impermissible advice may depend on the experience and sophistication
of the unrepresented person, as well as the setting in which the
behavior and comments occur. This Rule does not prohibit a lawyer from
negotiating the terms of a transaction or settling a dispute with an
unrepresented person. So long as the lawyer has explained that the
lawyer represents an adverse party and is not representing the person,
the lawyer may inform the person of the terms on which the lawyer's
client will enter into an agreement or settle a matter, prepare
documents that require the person's signature and explain the lawyer's
own view of the meaning of the document or the lawyer's view of the
underlying legal obligations.
Additional Washington Comments (3 - 4)
[3] An otherwise unrepresented person to whom limited representation
is being provided or has been provided in accordance with Rule 1.2(c)
is considered to be unrepresented for purposes of this Rule unless the
opposing lawyer knows of, or has been provided with, a written notice
of appearance under which, or a written notice of time period during
which, he or she is to communicate only with the limited
representation lawyer as to the subject matter within the limited
scope of the representation. (The provisions of this Comment were
taken from former Washington RPC 4.3(b)).
[4] Government lawyers are frequently called upon by unrepresented
persons, and in some instances by the courts, to provide general
information on laws and procedures relating to claims against the
government. The provision of such general information by government
lawyers is not a violation of this Rule.
[Amended effective September 1, 2006.]
RPC RULE 4.4
RESPECT FOR RIGHTS OF THIRD PERSON
(a) In representing a client, a lawyer shall not use means that have no
substantial purpose other than to embarrass, delay, or burden a third
person, or use methods of obtaining evidence that violate the legal rights
of such a person.
(b) A lawyer who receives a document relating to the representation of
the lawyer's client and knows or reasonably should know that the document
was inadvertently sent shall promptly notify the sender.
Comment
[1] Responsibility to a client requires a lawyer to subordinate the
interests of others to those of the client, but that responsibility does
not imply that a lawyer may disregard the rights of third persons. It is
impractical to catalogue all such rights, but they include legal
restrictions on methods of obtaining evidence from third persons and
unwarranted intrusions into privileged relationships, such as the client-
lawyer relationship.
[2] Paragraph (b) recognizes that lawyers sometimes receive documents
that were mistakenly sent or produced by opposing parties or their
lawyers. If a lawyer knows or reasonably should know that such a document
was sent inadvertently, then this Rule requires the lawyer to promptly
notify the sender in order to permit that person to take protective
measures. Whether the lawyer is required to take additional steps, such as
returning the original document, is a matter of law beyond the scope of
these Rules, as is the question of whether the privileged status of a
document has been waived. Similarly, this Rule does not address the legal
duties of a lawyer who receives a document that the lawyer knows or
reasonably should know may have been wrongfully obtained by the sending
person. For purposes of this Rule, "document" includes e-mail or other
electronic modes of transmission subject to being read or put into
readable form.
[3] Some lawyers may choose to return a document unread, for example,
when the lawyer learns before receiving the document that it was
inadvertently sent to the wrong address. Where a lawyer is not required by
applicable law to do so, the decision to voluntarily return such a
document is a matter of professional judgment ordinarily reserved to the
lawyer. See Rules 1.2 and 1.4.
[Amended effective September 1, 2006.]
RULE 5.1
RESPONSIBILITIES OF PARTNERS, MANAGERS, OR SUPERVISORY LAWYERS
(a) A partner in a law firm, and a lawyer who individually or together
with other lawyers possesses comparable managerial authority in a law firm,
shall make reasonable efforts to ensure that the firm has in effect measures
giving reasonable assurance that all lawyers in the firm conform to the
Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall
make reasonable efforts to ensure that the other lawyer conforms to the
Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer's violation of the
Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in
the law firm in which the other lawyer practices, or has direct supervisory
authority over the other lawyer, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable remedial action.
Comment
[1] Paragraph (a) applies to lawyers who have managerial authority over
the professional work of a firm. See Rule 1.0(c). This includes members of a
partnership, the shareholders in a law firm organized as a professional
corporation, and members of other associations authorized to practice law;
lawyers having comparable managerial authority in a legal services
organization or a law department of an enterprise or government agency; and
lawyers who have intermediate managerial responsibilities in a firm.
Paragraph (b) applies to lawyers who have supervisory authority over the
work of other lawyers in a firm.
[2] Paragraph (a) requires lawyers with managerial authority within a firm
to make reasonable efforts to establish internal policies and procedures
designed to provide reasonable assurance that all lawyers in the firm will
conform to the Rules of Professional Conduct. Such policies and procedures
include those designed to detect and resolve conflicts of interest, identify
dates by which actions must be taken in pending matters, account for client
funds and property and ensure that inexperienced lawyers are properly supervised.
[3] Other measures that may be required to fulfill the responsibility
prescribed in paragraph (a) can depend on the firm's structure and the
nature of its practice. In a small firm of experienced lawyers, informal
supervision and periodic review of compliance with the required systems
ordinarily will suffice. In a large firm, or in practice situations in which
difficult ethical problems frequently arise, more elaborate measures may be
necessary. Some firms, for example, have a procedure whereby junior lawyers
can make confidential referral of ethical problems directly to a designated
senior partner or special committee. See Rule 5.2. Firms, whether large or
small, may also rely on continuing legal education in professional ethics.
In any event, the ethical atmosphere of a firm can influence the conduct of
all its members and the partners may not assume that all lawyers associated
with the firm will inevitably conform to the Rules.
[4] Paragraph (c) expresses a general principle of personal responsibility
for acts of another. See also Rule 8.4(a).
[5] Paragraph (c)(2) defines the duty of a partner or other lawyer having
comparable managerial authority in a law firm, as well as a lawyer who has
direct supervisory authority over performance of specific legal work by
another lawyer. Whether a lawyer has supervisory authority in particular
circumstances is a question of fact. Partners and lawyers with comparable
authority have at least indirect responsibility for all work being done by
the firm, while a partner or manager in charge of a particular matter
ordinarily also has supervisory responsibility for the work of other firm
lawyers engaged in the matter. Appropriate remedial action by a partner or
managing lawyer would depend on the immediacy of that lawyer's involvement
and the seriousness of the misconduct. A supervisor is required to intervene
to prevent avoidable consequences of misconduct if the supervisor knows that
the misconduct occurred. Thus, if a supervising lawyer knows that a
subordinate misrepresented a matter to an opposing party in negotiation, the
supervisor as well as the subordinate has a duty to correct the resulting misapprehension.
[6] Professional misconduct by a lawyer under supervision could reveal a
violation of paragraph (b) on the part of the supervisory lawyer even though
it does not entail a violation of paragraph (c) because there was no
direction, ratification or knowledge of the violation.
[7] [Washington revision] Apart from this Rule and Rule 8.4(a), a lawyer
does not have disciplinary liability for the conduct of a partner, associate
or subordinate lawyer. Whether a lawyer may be liable civilly or criminally
for another lawyer's conduct is a question of law beyond the scope of these Rules.
[8] The duties imposed by this Rule on managing and supervising lawyers do
not alter the personal duty of each lawyer in a firm to abide by the Rules
of Professional Conduct. See Rule 5.2(a).
[Amended effective September 1, 1006.]
RPC RULE 5.2
RESPONSIBILITIES OF A SUBORDINATE LAWYER
(a) A lawyer is bound by the Rules of Professional Conduct
notwithstanding that the lawyer acted at the direction of another person.
(b) A subordinate lawyer does not violate the Rules of Professional
Conduct if that lawyer acts in accordance with a supervisory lawyer's
reasonable resolution of an arguable question of professional duty.
Comment
[1] Although a lawyer is not relieved of responsibility for a violation
by the fact that the lawyer acted at the direction of a supervisor, that
fact may be relevant in determining whether a lawyer had the knowledge
required to render conduct a violation of the Rules. For example, if a
subordinate filed a frivolous pleading at the direction of a supervisor,
the subordinate would not be guilty of a professional violation unless the
subordinate knew of the document's frivolous character.
[2] When lawyers in a supervisor-subordinate relationship encounter a
matter involving professional judgment as to ethical duty, the supervisor
may assume responsibility for making the judgment. Otherwise a consistent
course of action or position could not be taken. If the question can
reasonably be answered only one way, the duty of both lawyers is clear and
they are equally responsible for fulfilling it. However, if the question is
reasonably arguable, someone has to decide upon the course of action. That
authority ordinarily reposes in the supervisor, and a subordinate may be
guided accordingly. For example, if a question arises whether the interests
of two clients conflict under Rule 1.7, the supervisor's reasonable
resolution of the question should protect the subordinate professionally if
the resolution is subsequently challenged.
[Amended effective September 1, 2006.]
RPC RULE 5.3
RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other
lawyers possesses comparable managerial authority in a law firm shall make
reasonable efforts to ensure that the firm has in effect measures giving
reasonable assurance that the persons conduct is compatible with the
professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall
make reasonable efforts to ensure that the persons conduct is compatible
with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would
be a violation of the Rules of Professional Conduct if engaged in by a
lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct,
ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the
law firm in which the person is employed, or has direct supervisory
authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable
remedial action.
Comment
[1] Lawyers generally employ assistants in their practice, including
secretaries, investigators, law student interns, and paraprofessionals.
Such assistants, whether employees or independent contractors, act for the
lawyer in rendition of the lawyer's professional services. A lawyer must
give such assistants appropriate instruction and supervision concerning the
ethical aspects of their employment, particularly regarding the obligation
not to disclose information relating to representation of the client, and
should be responsible for their work product. The measures employed in
supervising nonlawyers should take account of the fact that they do not
have legal training and are not subject to professional discipline.
[2] Paragraph (a) requires lawyers with managerial authority within a law
firm to make reasonable efforts to establish internal policies and
procedures designed to provide reasonable assurance that nonlawyers in the
firm will act in a way compatible with the Rules of Professional Conduct.
See Comment [1] to Rule 5.1. Paragraph (b) applies to lawyers who have
supervisory authority over the work of a nonlawyer. Paragraph (c) specifies
the circumstances in which a lawyer is responsible for conduct of a
nonlawyer that would be a violation of the Rules of Professional Conduct if
engaged in by a lawyer.
[Amended effective September 1, 2006.]
RULE 5.4
PROFESSIONAL INDEPENDENCE OF A LAWYER
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or
associate may provide for the payment of money, over a reasonable period of
time after the lawyer's death, to the lawyer's estate or to one or more
specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or
disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the
estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a
compensation or retirement plan, even though the plan is based in whole or
in part on a profit-sharing arrangement; and
(4) [Reserved.]
(5) a lawyer authorized to complete unfinished legal business of a
deceased lawyer may pay to the estate or other representative of the
deceased lawyer that proportion of the total compensation that fairly
represents the services rendered by the deceased lawyer.
(b) A lawyer shall not form a partnership with a nonlawyer if any of the
activities of the partnership consist of the practice of law.
(c) A lawyer shall not permit a person who recommends, employs, or pays
the lawyer to render legal services for another to direct or regulate the
lawyer's professional judgment in rendering such legal services.
(d) A lawyer shall not practice with or in the form of a professional
corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary
representative of the estate of a lawyer may hold the stock or interest of
the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer (other than as
secretary or treasurer) thereof or occupies the position of similar
responsibility in any form of association other than a corporation; or
(3) a nonlawyer has the right to direct or control the professional
judgment of a lawyer.
Comment
[1] The provisions of this Rule express traditional limitations on
sharing fees. These limitations are to protect the lawyer's professional
independence of judgment. Where someone other than the client pays the
lawyer's fee or salary, or recommends employment of the lawyer, that
arrangement does not modify the lawyer's obligation to the client. As
stated in paragraph (c), such arrangements should not interfere with the
lawyer's professional judgment.
[2] This Rule also expresses traditional limitations on permitting a
third party to direct or regulate the lawyer's professional judgment in
rendering legal services to another. See also Rule 1.8(f) (lawyer may
accept compensation from a third party as long as there is no interference
with the lawyer's independent professional judgment and the client gives informed consent).
Additional Washington Comment (3)
[3] Paragraph (a)(5) was taken from former Washington RPC 5.4(a)(2).
[Amended effective September 1, 2006.]
RULE 5.5
UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW
(a) A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office
or other systematic and continuous presence in this jurisdiction for the
practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is
admitted to practice law in this jurisdiction.
(c) A lawyer admitted in another United States jurisdiction, and not
disbarred or suspended from practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to
practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding
before a tribunal in this or another jurisdiction, if the lawyer, or a person
the lawyer is assisting, is authorized by law or order to appear in such
proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or
another jurisdiction, if the services arise out of or are reasonably related to
the lawyer's practice in a jurisdiction in which the lawyer is admitted to
practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are
reasonably related to the lawyer's practice in a jurisdiction in which the
lawyer is admitted to practice.
(d) A lawyer admitted in another United States jurisdiction, and not
disbarred or suspended from practice in any jurisdiction, may provide legal
services in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates
and are not services for which the forum requires pro hac vice admission; or
(2) are services that the lawyer is authorized to provide by federal law
or other law of this jurisdiction.
(e) A lawyer authorized to provide legal services under paragraph (d)(1) of
this Rule may provide legal services in this jurisdiction for no fee through a
qualified legal services provider, as that term is defined in APR 8(e)(2). If
such services involve representation before a court or tribunal, the lawyer
shall seek admission under APR 8(b) and any fees for such admission shall be
waived. The prohibition against compensation in this paragraph shall not
prevent a qualified legal services provider from reimbursing a lawyer
authorized to practice under paragraph (d)(1) for actual expenses incurred
while rendering legal services under this pro bono exception. In addition, a
qualified legal services provider shall be entitled to receive all court
awarded attorney's fees for pro bono representation rendered by the lawyer.
Comment
[1] A lawyer may practice law only in a jurisdiction in which the lawyer is
authorized to practice. A lawyer may be admitted to practice law in a
jurisdiction on a regular basis or may be authorized by court rule or order or
by law to practice for a limited purpose or on a restricted basis. Paragraph
(a) applies to unauthorized practice of law by a lawyer, whether through the
lawyer's direct action or by the lawyer assisting another person.
[2] The definition of the practice of law is established by law and varies
from one jurisdiction to another. Whatever the definition, limiting the
practice of law to members of the bar protects the public against rendition of
legal services by unqualified persons. This Rule does not prohibit a lawyer
from employing the services of paraprofessionals and delegating functions to
them, so long as the lawyer supervises the delegated work and retains
responsibility for their work. See Rule 5.3.
[3] A lawyer may provide professional advice and instruction to nonlawyers
whose employment requires knowledge of the law; for example, claims adjusters,
employees of financial or commercial institutions, social workers, accountants
and persons employed in government agencies. Lawyers also may assist
independent nonlawyers, such as paraprofessionals, who are authorized by the
law of a jurisdiction to provide particular law-related services. In addition,
a lawyer may counsel nonlawyers who wish to proceed pro se.
[4] Other than as authorized by law or this Rule, a lawyer who is not
admitted to practice generally in this jurisdiction violates paragraph (b) if
the lawyer establishes an office or other systematic and continuous presence in
this jurisdiction for the practice of law. Presence may be systematic and
continuous even if the lawyer is not physically present here. Such a lawyer
must not hold out to the public or otherwise represent that the lawyer is
admitted to practice law in this jurisdiction. See also Rules 7.1 and 7.5(b).
[5] There are occasions in which a lawyer admitted to practice in another
United States jurisdiction, and not disbarred or suspended from practice in any
jurisdiction, may provide legal services on a temporary basis in this
jurisdiction under circumstances that do not create an unreasonable risk to the
interests of their clients, the public or the courts. Paragraph (c) identifies
four such circumstances. The fact that conduct is not so identified does not
imply that the conduct is or is not authorized. With the exception of
paragraphs (d)(1) and (d)(2), this Rule does not authorize a lawyer to
establish an office or other systematic and continuous presence in this
jurisdiction without being admitted to practice generally here.
[6] There is no single test to determine whether a lawyer's services are
provided on a "temporary basis" in this jurisdiction, and may therefore be
permissible under paragraph (c). Services may be "temporary" even though the
lawyer provides services in this jurisdiction on a recurring basis, or for an
extended period of time, as when the lawyer is representing a client in a
single lengthy negotiation or litigation.
[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law
in any United States jurisdiction, which includes the District of Columbia and
any state, territory or commonwealth of the United States. The word "admitted"
contemplates that the lawyer is authorized to practice in the jurisdiction in
which the lawyer is admitted and excludes a lawyer who while technically
admitted is not authorized to practice, because, for example, the lawyer is on
inactive status.
[8] Paragraph (c)(1) recognizes that the interests of clients and the public
are protected if a lawyer admitted only in another jurisdiction associates with
a lawyer licensed to practice in this jurisdiction. For this paragraph to
apply, however, the lawyer admitted to practice in this jurisdiction must
actively participate in and share responsibility for the representation of the client.
[9] Lawyers not admitted to practice generally in a jurisdiction may be
authorized by law or order of a tribunal or an administrative agency to appear
before the tribunal or agency. This authority may be granted pursuant to formal
rules governing admission pro hac vice or pursuant to informal practice of the
tribunal or agency. Under paragraph (c)(2), a lawyer does not violate this Rule
when the lawyer appears before a tribunal or agency pursuant to such authority.
To the extent that a court rule or other law of this jurisdiction requires a
lawyer who is not admitted to practice in this jurisdiction to obtain admission
pro hac vice before appearing before a tribunal or administrative agency, this
Rule requires the lawyer to obtain that authority.
[10] Paragraph (c)(2) also provides that a lawyer rendering services in this
jurisdiction on a temporary basis does not violate this Rule when the lawyer
engages in conduct in anticipation of a proceeding or hearing in a jurisdiction
in which the lawyer is authorized to practice law or in which the lawyer
reasonably expects to be admitted pro hac vice. Examples of such conduct
include meetings with the client, interviews of potential witnesses, and the
review of documents. Similarly, a lawyer admitted only in another jurisdiction
may engage in conduct temporarily in this jurisdiction in connection with
pending litigation in another jurisdiction in which the lawyer is or reasonably
expects to be authorized to appear, including taking depositions in this jurisdiction.
[11] When a lawyer has been or reasonably expects to be admitted to appear
before a court or administrative agency, paragraph (c)(2) also permits conduct
by lawyers who are associated with that lawyer in the matter, but who do not
expect to appear before the court or administrative agency. For example,
subordinate lawyers may conduct research, review documents, and attend meetings
with witnesses in support of the lawyer responsible for the litigation.
[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another
jurisdiction to perform services on a temporary basis in this jurisdiction if
those services are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution proceeding in
this or another jurisdiction, if the services arise out of or are reasonably
related to the lawyer's practice in a jurisdiction in which the lawyer is
admitted to practice. The lawyer, however, must obtain admission pro hac vice
in the case of a court-annexed arbitration or mediation or otherwise if court
rules or law so require.
[13] Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to
provide certain legal services on a temporary basis in this jurisdiction that
arise out of or are reasonably related to the lawyer's practice in a
jurisdiction in which the lawyer is admitted but are not within paragraphs
(c)(2) or (c)(3). These services include both legal services and services that
nonlawyers may perform but that are considered the practice of law when
performed by lawyers.
[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of
or be reasonably related to the lawyer's practice in a jurisdiction in
which the lawyer is admitted. A variety of factors evidence such a
relationship. The lawyer's client may have been previously represented by
the lawyer, or may be resident in or have substantial contacts with the
jurisdiction in which the lawyer is admitted. The matter, although
involving other jurisdictions, may have a significant connection with that
jurisdiction. In other cases, significant aspects of the lawyer's work
might be conducted in that jurisdiction or a significant aspect of the
matter may involve the law of that jurisdiction. The necessary relationship
might arise when the client's activities or the legal issues involve
multiple jurisdictions, such as when the officers of a multinational
corporation survey potential business sites and seek the services of their
lawyer in assessing the relative merits of each. In addition, the services
may draw on the lawyer's recognized expertise developed through the regular
practice of law on behalf of clients in matters involving a particular body
of federal, nationally-uniform, foreign, or international law. Lawyers
desiring to provide pro bono legal services on a temporary basis in
Washington following determination by the Supreme Court that an emergency
affecting the justice system, as a result of a natural or other major
disaster, has occurred, who are not otherwise authorized to practice law in
Washington, as well as lawyers from another affected jurisdiction who seek
to practice law temporarily in Washington, but who are not otherwise
authorized to practice law in Washington, should consult Admission to
Practice Rule 27 on Provision of Legal Services Following Determination of Major Disaster.
[15] Paragraph (d) identifies two circumstances in which a lawyer who is
admitted to practice in another United States jurisdiction, and is not
disbarred or suspended from practice in any jurisdiction, may establish an
office or other systematic and continuous presence in this jurisdiction for the
practice of law as well as provide legal services on a temporary basis. Except
as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to
practice law in another jurisdiction and who establishes an office or other
systematic or continuous presence in this jurisdiction must become admitted to
practice law generally in this jurisdiction.
[16] Paragraph (d)(1) applies to a lawyer who is employed by a client to
provide legal services to the client or its organizational affiliates, i.e.,
entities that control, are controlled by, or are under common control with the
employer. This paragraph does not authorize the provision of personal legal
services to the employer's officers or employees. The paragraph applies to in-
house corporate lawyers, government lawyers and others who are employed to
render legal services to the employer. The lawyer's ability to represent the
employer outside the jurisdiction in which the lawyer is licensed generally
serves the interests of the employer and does not create an unreasonable risk
to the client and others because the employer is well situated to assess the
lawyer's qualifications and the quality of the lawyer's work.
[17] If an employed lawyer establishes an office or other systematic presence
in this jurisdiction for the purpose of rendering legal services to the
employer, the lawyer may be subject to registration or other requirements,
including assessments for client protection funds and mandatory continuing legal education.
[18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a
jurisdiction in which the lawyer is not licensed when authorized to do so by federal or
other law, which includes statute, court rule, executive regulation or judicial precedent.
[19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d)
or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).
[20] In some circumstances, a lawyer who practices law in this jurisdiction
pursuant to paragraphs (c) or (d) may have to inform the client that the lawyer
is not licensed to practice law in this jurisdiction. For example, that may be
required when the representation occurs primarily in this jurisdiction and
requires knowledge of the law of this jurisdiction. See Rule 1.4(b).
[21] Paragraphs (c) and (d) do not authorize communications advertising legal
services to prospective clients in this jurisdiction by lawyers who are
admitted to practice in other jurisdictions. Whether and how lawyers may
communicate the availability of their services to prospective clients in this
jurisdiction is governed by Rules 7.1 to 7.5.
[22] Model Rule 5.5 does not contain a provision equivalent to paragraph
(e) of Washington's Rule. Paragraph (e) provides that in-house lawyers,
government lawyers, and others authorized to practice under paragraph (d)
of this Rule may provide legal services for no fee through a qualified
legal services provider, but it does not authorize any other form of law
practice, whether for a fee or not, other than that authorized by Paragraph
(d). For purposes of paragraph (e) of this Rule, the term "qualified legal
services provider" is defined in Admission to Practice Rule 8(e)(2) as "a
not for profit legal services organization whose primary purpose is to
provide legal services to low income clients."
[Amended effective October 1, 2002; September 1, 2006; July 1, 2008; September 1, 2008; September 1, 2011]
RPC RULE 5.6
RESTRICTIONS ON RIGHT TO PRACTICE
A lawyer shall not participate in offering or making:
(a) a partnership, shareholders, operating, employment, or other similar
type of agreement that restricts the rights of a lawyer to practice after
termination of the relationship, except an agreement concerning benefits
upon retirement; or
(b) an agreement in which a restriction on the lawyer's right to
practice is part of the settlement of a client controversy.
Comment
[1] An agreement restricting the right of lawyers to practice after
leaving a firm not only limits their professional autonomy but also limits
the freedom of clients to choose a lawyer. Paragraph (a) prohibits such
agreements except for restrictions incident to provisions concerning
retirement benefits for service with the firm.
[2] Paragraph (b) prohibits a lawyer from agreeing not to represent
other persons in connection with settling a claim on behalf of a client.
[3] [Washington revision] This Rule does not prohibit restrictions that
may be included in the terms of the sale of a law practice pursuant to
Rule 1.17, a lawyer's plea agreement in a criminal matter, or a
stipulation under the Rules for Enforcement of Lawyer Conduct.
[Amended effective September 1, 2006.]
RPC RULE 5.7
RESPONSIBILITIES REGARDING LAW-RELATED SERVICES
(a) A lawyer shall be subject to the Rules of Professional Conduct with
respect to the provision of law-related services, as defined in
paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the
lawyer's provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer
individually or with others if the lawyer fails to take reasonable measures
to assure that a person obtaining the law-related services knows that the
services are not legal services and that the protections of the client-
lawyer relationship do not exist.
(b) The term "law-related services" denotes services that might
reasonably be performed in conjunction with and in substance are related to
the provision of legal services, and that are not prohibited as
unauthorized practice of law when provided by a nonlawyer.
Comment
[1] When a lawyer performs law-related services or controls an
organization that does so, there exists the potential for ethical problems.
Principal among these is the possibility that the person for whom the law-
related services are performed fails to understand that the services may
not carry with them the protections normally afforded as part of the client-
lawyer relationship. The recipient of the law-related services may expect,
for example, that the protection of client confidences, prohibitions
against representation of persons with conflicting interests, and
obligations of a lawyer to maintain professional independence apply to the
provision of law-related services when that may not be the case.
[2] Rule 5.7 applies to the provision of law-related services by a lawyer
even when the lawyer does not provide any legal services to the person for
whom the law-related services are performed and whether the law-related
services are performed through a law firm or a separate entity. The Rule
identifies the circumstances in which all of the Rules of Professional
Conduct apply to the provision of law-related services. Even when those
circumstances do not exist, however, the conduct of a lawyer involved in
the provision of law-related services is subject to those Rules that apply
generally to lawyer conduct, regardless of whether the conduct involves the
provision of legal services. See, e.g., Rule 8.4.
[3] When law-related services are provided by a lawyer under
circumstances that are not distinct from the lawyer's provision of legal
services to clients, the lawyer in providing the law-related services must
adhere to the requirements of the Rules of Professional Conduct as provided
in paragraph (a)(1). Even when the law-related and legal services are
provided in circumstances that are distinct from each other, for example
through separate entities or different support staff within the law firm,
the Rules of Professional Conduct apply to the lawyer as provided in
paragraph (a)(2) unless the lawyer takes reasonable measures to assure that
the recipient of the law-related services knows that the services are not
legal services and that the protections of the client-lawyer relationship
do not apply.
[4] Law-related services also may be provided through an entity that is
distinct from that through which the lawyer provides legal services. If the
lawyer individually or with others has control of such an entity's
operations, the Rule requires the lawyer to take reasonable measures to
assure that each person using the services of the entity knows that the
services provided by the entity are not legal services and that the Rules
of Professional Conduct that relate to the client-lawyer relationship do
not apply. A lawyer's control of an entity extends to the ability to direct
its operation. Whether a lawyer has such control will depend upon the
circumstances of the particular case.
[5] When a client-lawyer relationship exists with a person who is
referred by a lawyer to a separate law-related service entity controlled by
the lawyer, individually or with others, the lawyer must comply with Rule 1.8(a).
[6] In taking the reasonable measures referred to in paragraph (a)(2) to
assure that a person using law-related services understands the practical
effect or significance of the inapplicability of the Rules of Professional
Conduct, the lawyer should communicate to the person receiving the law-
related services, in a manner sufficient to assure that the person
understands the significance of the fact, that the relationship of the
person to the business entity will not be a client-lawyer relationship. The
communication should be made before entering into an agreement for
provision of or providing law-related services, and preferably should be in writing.
[7] The burden is upon the lawyer to show that the lawyer has taken
reasonable measures under the circumstances to communicate the desired
understanding. For instance, a sophisticated user of law-related services,
such as a publicly held corporation, may require a lesser explanation than
someone unaccustomed to making distinctions between legal services and law-
related services, such as an individual seeking tax advice from a lawyer-
accountant or investigative services in connection with a lawsuit.
[8] Regardless of the sophistication of potential recipients of law-
related services, a lawyer should take special care to keep separate the
provision of law-related and legal services in order to minimize the risk
that the recipient will assume that the law-related services are legal
services. The risk of such confusion is especially acute when the lawyer
renders both types of services with respect to the same matter. Under some
circumstances the legal and law-related services may be so closely entwined
that they cannot be distinguished from each other, and the requirement of
disclosure and consultation imposed by paragraph (a)(2) of the Rule cannot
be met. In such a case a lawyer will be responsible for assuring that both
the lawyer's conduct and, to the extent required by Rule 5.3, that of
nonlawyer employees in the distinct entity that the lawyer controls
complies in all respects with the Rules of Professional Conduct.
[9] A broad range of economic and other interests of clients may be
served by lawyers' engaging in the delivery of law-related services.
Examples of law-related services include providing title insurance,
financial planning, accounting, trust services, real estate counseling,
legislative lobbying, economic analysis, social work, psychological
counseling, tax preparation, and patent, medical or environmental
consulting.
[10] When a lawyer is obliged to accord the recipients of such services
the protections of those Rules that apply to the client-lawyer
relationship, the lawyer must take special care to heed the proscriptions
of the Rules addressing conflict of interest (Rules 1.7 through 1.11,
especially Rules 1.7(a)(2) and 1.8(a), (b) and (f)), and to scrupulously
adhere to the requirements of Rule 1.6 relating to disclosure of
confidential information. The promotion of the law-related services must
also in all respects comply with Rules 7.1 through 7.3, dealing with
advertising and solicitation. In that regard, lawyers should take special
care to identify the obligations that may be imposed as a result of a
jurisdiction's decisional law.
[11] When the full protections of all of the Rules of Professional
Conduct do not apply to the provision of law-related services, principles
of law external to the Rules, for example, the law of principal and agent,
govern the legal duties owed to those receiving the services. Those other
legal principles may establish a different degree of protection for the
recipient with respect to confidentiality of information, conflicts of
interest and permissible business relationships with clients.
See also Rule 8.4 (Misconduct).
[Adopted effective September 1, 2006.]
RPC RULE 5.8
MISCONDUCT INVOLVING DISBARRED, SUSPENDED, RESIGNED, AND INACTIVE LAWYERS
(a) A lawyer shall not engage in the practice of law while on inactive
status, or while suspended from the practice of law for any cause.
(b) A lawyer shall not engage in any of the following with an individual
who is a disbarred or suspended lawyer or who has resigned in lieu of disbarment:
(1) practice law with or in cooperation with such an individual;
(2) maintain an office for the practice of law in a room or office
occupied or used in whole or in part by such an individual;
(3) permit such an individual to use the lawyer's name for the
practice of law;
(4) practice law for or on behalf of such an individual; or
(5) practice law under any arrangement or understanding for division
of fees or compensation of any kind with such an individual.
Washington Comment
[1] The provisions of this Rule were taken from former Washington
RPC 5.5(d) and (e) (as amended in 2002).
[Adopted effective September 1, 2006.]
RPC RULE 6.1
PRO BONO PUBLICO SERVICE
Every lawyer has a professional responsibility to assist in the provision
of legal services to those unable to pay. A lawyer should aspire to render
at least thirty (30) hours of pro bono publico service per year. In
fulfilling this responsibility, the lawyers should:
(a) provide legal services without fee or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civil, community, governmental and
educational organizations in matters which are designed primarily to
address the needs of persons of limited means; and
(b) provide pro bono publico service through:
(1) delivery of legal services at no fee or substantially reduced fee
to individuals, groups or organizations seeking to secure or protect civil
rights, civil liberties or public rights, or charitable, religious, civil,
community, governmental and educational organizations in matters in
furtherance of their organizational purposes, where the payment of standard
legal fees would significantly deplete the organization's economic
resources or would be otherwise inappropriate:
(2) delivery of legal services at a substantially reduced fee to
persons of limited means; or
(3) participation in activities for improving the law, the legal
system or the legal profession.
Pro bono publico service may be reported annually on a form provided by the
WSBA. A lawyer rendering a minimum of fifty (50) hours of pro bono publico
service shall receive commendation for such service from the WSBA.
Comment
[1] [Washington revision] Every lawyer, regardless of professional
prominence or professional work load, has a responsibility to provide legal
services to those unable to pay, and personal involvement in the problems
of the disadvantaged can be one of the most rewarding experiences in the
life of a lawyer. It is recognized that in some years a lawyer may render
greater or fewer hours than the annual standard specified, but during the
course of his or her legal career, each lawyer should render on average per
year, at a minimum, the number of hours set forth in this Rule. Services
can be performed in civil matters or in criminal or quasi-criminal matters
for which there is no government obligation to provide funds for legal
representation, such as post-conviction death penalty appeal cases.
[2] [Washington revision] Paragraphs (a)(1) and (2) recognize the
critical need for legal services that exists among persons of limited
means. Legal services under these paragraphs consist of a full range of
activities, including individual and class representation, the provision of
legal advice, legislative lobbying, administrative rule making and the
provision of free training or mentoring to those who represent persons of
limited means or organizations primarily representing such persons. The
variety of these activities should facilitate participation by government
lawyers, even when restrictions may exist on their engaging in the outside
practice of law.
[3] [Washington revision] Persons eligible for legal services under
paragraphs (a)(1) are those who qualify for services provided by a
qualified legal services provider (see Washington Comment [14]) and those
whose incomes and financial resources are slightly above the guidelines
utilized by such programs but nevertheless, cannot afford counsel. Legal
services under paragraphs (a)(1) and (2) include those rendered to
individuals or to organizations such as homeless shelters, battered women's
centers and food pantries that serve those of limited means. The term
"governmental organizations" includes, but is not limited to, public
protection programs and sections of governmental or public sector agencies.
[4] Because service must be provided without fee or expectation of fee,
the intent of the lawyer to render free legal services is essential for the
work performed to fall within the meaning of paragraphs (a)(1) and (2).
Accordingly, services rendered cannot be considered pro bono if an
anticipated fee is uncollected, but the award of statutory attorneys' fees
in a case originally accepted as pro bono would not disqualify such
services from inclusion under this section. Lawyers who do receive fees in
such cases are encouraged to contribute an appropriate portion of such fees
to organizations or projects that benefit persons of limited means.
[5] [Washington revision] A lawyer's responsibility under this Rule can
be fulfilled either through the activities described in paragraph (a)(1)
and (2) or in a variety of ways as set forth in paragraph (b).
[6] Paragraph (b)(1) includes the provision of certain types of legal
services to those whose incomes and financial resources place them above
limited means. It also permits the pro bono lawyer to accept a
substantially reduced fee for services. Examples of the types of issues
that may be addressed under this paragraph include First Amendment claims,
Title VII claims and environmental protection claims. Additionally, a wide
range of organizations may be represented, including social service,
medical research, cultural and religious groups.
[7] Paragraph (b)(2) covers instances in which lawyers agree to and
receive a modest fee for furnishing legal services to persons of limited
means. Participation in judicare programs and acceptance of court
appointments in which the fee is substantially below a lawyer's usual rate
are encouraged under this section.
[8] [Washington revision] Paragraph (b)(3) recognizes the value of
lawyers engaging in activities that improve the law, the legal system or
the legal profession. Serving in a volunteer capacity on bar association
committees or on boards of pro bono or legal services programs, taking part
in Law Week activities, acting as an uncompensated continuing legal
education instructor, an uncompensated mediator or arbitrator and engaging
in uncompensated legislative lobbying to improve the law, the legal system
or the profession are a few examples of the many activities that fall
within this paragraph.
[9] Because the provision of pro bono services is a professional
responsibility, it is the individual ethical commitment of each lawyer.
Nevertheless, there may be times when it is not feasible for a lawyer to
engage in pro bono services. At such times a lawyer may discharge the pro
bono responsibility by providing financial support to organizations
providing free legal services to persons of limited means. Such financial
support should be reasonably equivalent to the value of the hours of
service that would have otherwise been provided. In addition, at times it
may be more feasible to satisfy the pro bono responsibility collectively,
as by a firm's aggregate pro bono activities.
[10] [Reserved.]
[11] Law firms should act reasonably to enable and encourage all lawyers
in the firm to provide the pro bono legal services called for by this Rule.
[12] The responsibility set forth in this Rule is not intended to be
enforced through disciplinary process.
Additional Washington Comments (13 - 16)
[13] Washington's version of this Rule differs from the Model Rule.
Washington's Rule 6.1 specifies an aspirational minimum of thirty hours of
pro bono publico legal services per year rather than fifty, but provides
for presentation of a service recognition award to those lawyers reporting
to the WSBA a minimum of fifty hours. Unlike the Model Rule, paragraph (a)
of Washington's Rule does not specify that the majority of the pro bono
publico legal service hours should be provided without fee or expectation
of fee. And Washington's Rule does not include the final paragraph of the
Model Rule relating to voluntary contributions of financial support to
legal services organizations. The provisions of Rule 6.1 were taken from
former Washington RPC 6.1 (as amended in 2003).
[14] For purposes of this Rule, a "qualified legal services provider" is
a not-for-profit legal services organization whose primary purpose is to
provide legal services to low-income clients.
[15] Pro bono publico service does not include services rendered for
wages or other compensation by lawyers employed by qualified legal services
providers (as that term is defined in Washington Comment [14]), government
agencies, or other organizations as part of their employment.
[16] The amount of time spent rendering pro bono publico services should
be calculated on the same basis that lawyers calculate their time on
billable matters. For example, if time spent traveling to a client meeting
or to a court hearing is considered to be part of the time for which a
paying client would be billed, it is appropriate to include such time in
calculating the number of pro bono publico service hours rendered under
this Rule.
[Amended effective September 1, 2003; September 1, 2006.]
RPC RULE 6.2
ACCEPTING APPOINTMENTS
A lawyer shall not seek to avoid appointment by a tribunal to represent
a person except for good cause, such as:
(a) representing the client is likely to result in violation of the
Rules of Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable
financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be
likely to impair the client-lawyer relationship or the lawyer's ability to
represent the client.
Comment
[1] [Washington revision] A lawyer ordinarily is not obliged to accept a
client whose character or cause the lawyer regards as repugnant. The
lawyer's freedom to select clients is, however, qualified. A lawyer may be
subject to appointment by a court to serve unpopular clients or persons
unable to afford legal services.
Appointed Counsel
[2] For good cause a lawyer may seek to decline an appointment to
represent a person who cannot afford to retain counsel or whose cause is
unpopular. Good cause exists if the lawyer could not handle the matter
competently, see Rule 1.1, or if undertaking the representation would
result in an improper conflict of interest, for example, when the client
or the cause is so repugnant to the lawyer as to be likely to impair the
client-lawyer relationship or the lawyer's ability to represent the
client. A lawyer may also seek to decline an appointment if acceptance
would be unreasonably burdensome, for example, when it would impose a
financial sacrifice so great as to be unjust.
[3] An appointed lawyer has the same obligations to the client as
retained counsel, including the obligations of loyalty and
confidentiality, and is subject to the same limitations on the client-
lawyer relationship, such as the obligation to refrain from assisting the
client in violation of the Rules.
[Amended effective September 1, 2006.]
RPC RULE 6.3
MEMBERSHIP IN LEGAL SERVICES ORGANIZATION
A lawyer may serve as a director, officer or member of a legal services
organization, apart from the law firm in which the lawyer practices,
notwithstanding that the organization serves persons having interests
adverse to a client of the lawyer. The lawyer shall not knowingly
participate in a decision or action of the organization:
(a) if participating in the decision or action would be incompatible with
the lawyer's obligations to a client under Rule 1.7; or
(b) where the decision or action could have a material adverse effect on
the representation of a client of the organization whose interests are
adverse to a client of the lawyer.
Comment
[1] Lawyers should be encouraged to support and participate in legal
service organizations. A lawyer who is an officer or a member of such an
organization does not thereby have a client-lawyer relationship with
persons served by the organization. However, there is potential conflict
between the interests of such persons and the interests of the lawyer's
clients. If the possibility of such conflict disqualified a lawyer from
serving on the board of a legal services organization, the profession's
involvement in such organizations would be severely curtailed.
[2] It may be necessary in appropriate cases to reassure a client of the
organization that the representation will not be affected by conflicting
loyalties of a member of the board. Established, written policies in this
respect can enhance the credibility of such assurances.
[Amended effective September 1, 2006.]
RPC RULE 6.4
LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS
A lawyer may serve as a director, officer or member of an organization
involved in reform of the law or its administration notwithstanding that
the reform may affect the interests of a client of the lawyer. When the
lawyer knows that the interests of a client may be materially benefited by
a decision in which the lawyer participates, the lawyer shall disclose that
fact but need not identify the client.
Comment
[1] Lawyers involved in organizations seeking law reform generally do not
have a client-lawyer relationship with the organization. Otherwise, it
might follow that a lawyer could not be involved in a bar association law
reform program that might indirectly affect a client. See also Rule 1.2(b).
For example, a lawyer specializing in antitrust litigation might be
regarded as disqualified from participating in drafting revisions of rules
governing that subject. In determining the nature and scope of
participation in such activities, a lawyer should be mindful of obligations
to clients under other Rules, particularly Rule 1.7. A lawyer is
professionally obligated to protect the integrity of the program by making
an appropriate disclosure within the organization when the lawyer knows a
private client might be materially benefited.
[Amended effective September 1, 2006.]
RPC RULE 6.5
NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICE PROGRAMS
(a) A lawyer who, under the auspices of a program sponsored by a
nonprofit organization or court, provides short-term limited legal services
to a client without expectation by either the lawyer or the client that the
lawyer will provide continuing representation in the matter and without
expectation that the lawyer will receive a fee from the client for the
services provided:
(1) is subject to Rules 1.7, 1.9(a), and 1.18(c) only if the lawyer
knows that the representation of the client involves a conflict of
interest, except that those Rules shall not prohibit a lawyer from
providing limited legal services sufficient only to determine eligibility
of the client for assistance by the program and to make an appropriate
referral of the client to another program;
(2) is subject to Rule 1.10 only if the lawyer knows that another
lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7
or 1.9(a) with respect to the matter; and
(3) notwithstanding paragraphs (1) and (2), is not subject to
Rules 1.7, 1.9(a), 1.10, or 1.18(c) in providing limited legal services to
a client if:
(i) the program lawyers representing the opposing clients are
screened by effective means from information relating to the representation
of the opposing client;
(ii) each client is notified of the conflict and the screening
mechanism used to prohibit dissemination of information relating to the
representation; and
(iii) the program is able to demonstrate by convincing evidence that
no material information relating to the representation of the opposing
client was transmitted by the personally disqualified lawyers to the lawyer
representing the conflicting client before implementation of the screening
mechanism and notice to the opposing client.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to
a representation governed by this Rule.
Comment
[1] [Washington revision] Legal services organizations, courts and
various nonprofit organizations have established programs through which
lawyers provide short-term limited legal services - such as advice or the
completion of legal forms - that will assist persons to address their legal
problems without further representation by a lawyer. In these programs,
such as legal-advice hotlines, advice-only clinics or pro se counseling
programs, a client-lawyer relationship is established, but there is no
expectation that the lawyer's representation of the client will continue
beyond the limited consultation. Such programs are normally operated under
circumstances in which it is not feasible for a lawyer to systematically
screen for conflicts of interest as is generally required before
undertaking a representation. See, e.g., Rules 1.7, 1.9, 1.10, and 1.18.
[2] A lawyer who provides short-term limited legal services pursuant to
this Rule must secure the client's informed consent to the limited scope of
the representation. See Rule 1.2(c). If a short-term limited representation
would not be reasonable under the circumstances, the lawyer may offer
advice to the client but must also advise the client of the need for
further assistance of counsel. Except as provided in this Rule, the Rules
of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to
the limited representation.
[3] [Washington revision] Because a lawyer who is representing a client
in the circumstances addressed by this Rule ordinarily is not able to check
systematically for conflicts of interest, paragraph (a) requires compliance
with Rules 1.7 or 1.9(a), or 1.18(c) only if the lawyer knows that the
representation presents a conflict of interest for the lawyer, and with
Rule 1.10 only if the lawyer knows that another lawyer in the lawyer's firm
is disqualified by Rules 1.7 or 1.9(a) in the matter.
[4] Because the limited nature of the services significantly reduces the
risk of conflicts of interest with other matters being handled by the
lawyer's firm, paragraph (b) provides that Rule 1.10 is inapplicable to a
representation governed by this Rule except as provided by paragraph
(a)(2). Paragraph (a)(2) requires the participating lawyer to comply with
Rule 1.10 when the lawyer knows that the lawyer's firm is disqualified by
Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer's
participation in a short-term limited legal services program will not
preclude the lawyer's firm from undertaking or continuing the
representation of a client with interests adverse to a client being
represented under the program's auspices. Nor will the personal
disqualification of a lawyer participating in the program be imputed to
other lawyers participating in the program.
[5] If, after commencing a short-term limited representation in
accordance with this Rule, a lawyer undertakes to represent the client in
the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.
Additional Washington Comments (6 - 7)
[6] Washington's version of this Rule differs from the Model Rule. The
differences accommodate the unique civil legal services delivery system,
which uses a statewide centralized telephone intake and referral system for
low-income persons to access free civil legal services. The Rule recognizes
that lawyers who provide intake and referral services such as these will
necessarily at times receive confidential information from adverse parties.
The risk that such information will be used against the material interests
of either party is relatively low in comparison to the need for services,
and when such a risk exists, protections of lawyer screening and notice to
the client are required by the Rule.
[7] Paragraph (a)(3) was taken from former Washington RPC 6.5(a)(3) as
enacted in 2002. The replacement of "confidences and secrets" in paragraph
(a)(3) with "information relating to the representation" was necessary to
conform the language of the Rule to a terminology change in Rule 1.6. No
substantive change is intended. See Comment [19] to Rule 1.6.
[Adopted effective September 1, 2006.]
RPC RULE 7.1
COMMUNICATIONS CONCERNING A LAWYER'S SERVICES
A lawyer shall not make a false or misleading communication about the
lawyer or the lawyer's services. A communication is false or misleading if
it contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially misleading.
Comment
[1] This Rule governs all communications about a lawyer's services,
including advertising permitted by Rule 7.2. Whatever means are used to
make known a lawyer's services, statements about them must be truthful.
[2] Truthful statements that are misleading are also prohibited by this
Rule. A truthful statement is misleading if it omits a fact necessary to
make the lawyer's communication considered as a whole not materially
misleading. A truthful statement is also misleading if there is a
substantial likelihood that it will lead a reasonable person to formulate
a specific conclusion about the lawyer or the lawyer's services for which
there is no reasonable factual foundation.
[3] An advertisement that truthfully reports a lawyer's achievements on
behalf of clients or former clients may be misleading if presented so as
to lead a reasonable person to form an unjustified expectation that the
same results could be obtained for other clients in similar matters
without reference to the specific factual and legal circumstances of each
client's case. Similarly, an unsubstantiated comparison of the lawyer's
services or fees with the services or fees of other lawyers may be
misleading if presented with such specificity as would lead a reasonable
person to conclude that the comparison can be substantiated. The inclusion
of an appropriate disclaimer or qualifying language may preclude a finding
that a statement is likely to create unjustified expectations or otherwise
mislead a prospective client.
[4] See also Rule 8.4(e) for the prohibition against stating or implying
an ability to influence improperly a government agency or official or to
achieve results by means that violate the Rules of Professional Conduct or
other law.
[Amended effective September 1, 2006.]
RPC RULE 7.2
ADVERTISING
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may
advertise services through written, recorded or electronic communication,
including public media.
(b) A lawyer shall not give anything of value to a person for
recommending the lawyer's services, except that a lawyer may
(1) pay the reasonable cost of advertisements or communications
permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit
lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) refer clients to another lawyer pursuant to an agreement not
otherwise prohibited under these Rules that provides for the other person
to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
(c) Any communication made pursuant to this Rule shall include the name
and office address of at least one lawyer or law firm responsible for its content.
Comment
[1] To assist the public in obtaining legal services, lawyers should be
allowed to make known their services not only through reputation but also
through organized information campaigns in the form of advertising.
Advertising involves an active quest for clients, contrary to the
tradition that a lawyer should not seek clientele. However, the public's
need to know about legal services can be fulfilled in part through
advertising. This need is particularly acute in the case of persons of
moderate means who have not made extensive use of legal services. The
interest in expanding public information about legal services ought to
prevail over considerations of tradition. Nevertheless, advertising by
lawyers entails the risk of practices that are misleading or overreaching.
[2] This Rule permits public dissemination of information concerning a
lawyer's name or firm name, address and telephone number; the kinds of
services the lawyer will undertake; the basis on which the lawyer's fees
are determined, including prices for specific services and payment and
credit arrangements; a lawyer's foreign language ability; names of
references and, with their consent, names of clients regularly
represented; and other information that might invite the attention of
those seeking legal assistance.
[3] Questions of effectiveness and taste in advertising are matters of
speculation and subjective judgment. Some jurisdictions have had extensive
prohibitions against television advertising, against advertising going
beyond specified facts about a lawyer, or against "undignified"
advertising. Television is now one of the most powerful media for getting
information to the public, particularly persons of low and moderate
income; prohibiting television advertising, therefore, would impede the
flow of information about legal services to many sectors of the public.
Limiting the information that may be advertised has a similar effect and
assumes that the bar can accurately forecast the kind of information that
the public would regard as relevant. Similarly, electronic media, such as
the Internet, can be an important source of information about legal
services, and lawful communication by electronic mail is permitted by this
Rule. But see Rule 7.3(a) for the prohibition against the solicitation of
a prospective client through a real-time electronic exchange that is not
initiated by the prospective client.
[4] Neither this Rule nor Rule 7.3 prohibits communications authorized
by law, such as notice to members of a class in class action litigation.
Paying Others to Recommend a Lawyer
[5] Lawyers are not permitted to pay others for channeling professional
work. Paragraph (b)(1), however, allows a lawyer to pay for advertising
and communications permitted by this Rule, including the costs of print
directory listings, on-line directory listings, newspaper ads, television
and radio airtime, domain-name registrations, sponsorship fees, banner
ads, and group advertising. A lawyer may compensate employees, agents and
vendors who are engaged to provide marketing or client-development
services, such as publicists, public-relations personnel, business-
development staff and website designers. See Rule 5.3 for the duties of
lawyers and law firms with respect to the conduct of nonlawyers who
prepare marketing materials for them.
[6] [Washington revision] A lawyer may pay the usual charges of a legal
service plan or a not-for-profit lawyer referral service. A legal service
plan is a prepaid or group legal service plan or a similar delivery system
that assists prospective clients to secure legal representation. A lawyer
referral service, on the other hand, is any organization that holds itself
out to the public as a lawyer referral service. Such referral services are
understood by laypersons to be consumer-oriented organizations that
provide unbiased referrals to lawyers with appropriate experience in the
subject matter of the representation and afford other client protections,
such as complaint procedures or malpractice insurance requirements.
Consequently, this Rule only permits a lawyer to pay the usual charges of
a not-for-profit lawyer referral service.
[7] A lawyer who accepts assignments or referrals from a legal service
plan or referrals from a lawyer referral service must act reasonably to
assure that the activities of the plan or service are compatible with the
lawyer's professional obligations. See Rule 5.3. Legal service plans and
lawyer referral services may communicate with prospective clients, but
such communication must be in conformity with these Rules. Thus,
advertising must not be false or misleading, as would be the case if the
communications of a group advertising program or a group legal services
plan would mislead prospective clients to think that it was a lawyer
referral service sponsored by a state agency or bar association. Nor could
the lawyer allow in-person, telephonic, or real-time contacts that would
violate Rule 7.3.
[8] [Washington revision] A lawyer also may agree to refer clients to
another lawyer in return for the undertaking of that person to refer
clients or customers to the lawyer. Such reciprocal referral arrangements
must not interfere with the lawyer's professional judgment as to making
referrals or as to providing substantive legal services. See Rules 2.1 and
5.4(c). Except as provided in Rule 1.5(e), a lawyer who receives referrals
from a lawyer must not pay anything solely for the referral, but the
lawyer does not violate paragraph (b) of this Rule by agreeing to refer
clients to the other lawyer, so long as the reciprocal referral agreement
is not exclusive and the client is informed of the referral agreement.
Conflicts of interest created by such arrangements are governed by Rule
1.7. Reciprocal referral agreements should not be of indefinite duration
and should be reviewed periodically to determine whether they comply with
these Rules. This Rule does not restrict referrals or divisions of
revenues or net income among lawyers within firms comprised of multiple entities.
Additional Washington Comment (9)
[9] That portion of Model Rule 7.2(b)(4) that allows lawyers to enter
into reciprocal referral agreements with nonlawyer professionals was not adopted.
[Amended effective September 1, 2006.]
RPC RULE 7.3
DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) A lawyer shall not directly or through a third person, by in-person,
live telephone, or real-time electronic contact solicit professional
employment from a prospective client when a significant motive for the
lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:
(1) is a lawyer;
(2) has a family, close personal, or prior professional relationship
with the lawyer; or
(3) has consented to the contact by requesting a referral from a not-
for-profit lawyer referral service.
(b) A lawyer shall not solicit professional employment from a prospective
client by written, recorded or electronic communication or by in-person,
telephone or real-time electronic contact even when not otherwise
prohibited by paragraph (a), if;
(1) the prospective client has made known to the lawyer a desire not
to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
(c) [Reserved.]
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may
participate with a prepaid or group legal service plan operated by an
organization not owned or directed by the lawyer that uses in-person or
telephone contact to solicit memberships or subscriptions for the plan from
persons who are not known to need legal services in a particular matter
covered by the plan.
Comment
[1] There is a potential for abuse inherent in direct in-person, live
telephone or real-time electronic contact by a lawyer with a prospective
client known to need legal services. These forms of contact between a
lawyer and a prospective client subject the layperson to the private
importuning of the trained advocate in a direct interpersonal encounter.
The prospective client, who may already feel overwhelmed by the
circumstances giving rise to the need for legal services, may find it
difficult fully to evaluate all available alternatives with reasoned
judgment and appropriate self-interest in the face of the lawyer's presence
and insistence upon being retained immediately. The situation is fraught
with the possibility of undue influence, intimidation, and over-reaching.
[2] This potential for abuse inherent in direct in-person, live telephone
or real-time electronic solicitation of prospective clients justifies its
prohibition, particularly since lawyer advertising and written and recorded
communication permitted under Rule 7.2 offer alternative means of conveying
necessary information to those who may be in need of legal services.
Advertising and written and recorded communications which may be mailed or
autodialed make it possible for a prospective client to be informed about
the need for legal services, and about the qualifications of available
lawyers and law firms, without subjecting the prospective client to direct
in-person, telephone or real-time electronic persuasion that may overwhelm
the client's judgment.
[3] The use of general advertising and written, recorded or electronic
communications to transmit information from lawyer to prospective client,
rather than direct in-person, live telephone or real-time electronic
contact, will help to assure that the information flows cleanly as well as
freely. The contents of advertisements and communications permitted under
Rule 7.2 can be permanently recorded so that they cannot be disputed and
may be shared with others who know the lawyer. This potential for informal
review is itself likely to help guard against statements and claims that
might constitute false and misleading communications, in violation of Rule
7.1. The contents of direct in-person, live telephone or real-time
electronic conversations between a lawyer and a prospective client can be
disputed and may not be subject to third-party scrutiny. Consequently, they
are much more likely to approach (and occasionally cross) the dividing line
between accurate representations and those that are false and misleading.
[4] [Washington revision] There is far less likelihood that a lawyer
would engage in abusive practices against an individual who is a former
client, or with whom the lawyer has close personal or family relationship,
or in situations in which the lawyer is motivated by considerations other
than the lawyer's pecuniary gain. Nor is there a serious potential for
abuse when the person contacted is a lawyer. Consequently, the general
prohibition in Rule 7.3(a) is not applicable in those situations. Also,
paragraph (a) is not intended to prohibit a lawyer from participating in
constitutionally protected activities of public or charitable legal-service
organizations or bona fide political, social, civic, fraternal, employee or
trade organizations whose purposes include providing or recommending legal
services to its members or beneficiaries.
[5] But even permitted forms of solicitation can be abused. Thus, any
solicitation which contains information which is false or misleading within
the meaning of Rule 7.1, which involves coercion, duress or harassment
within the meaning of Rule 7.3(b)(2), or which involves contact with a
prospective client who has made known to the lawyer a desire not to be
solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited.
Moreover, if after sending a letter or other communication to a client as
permitted by Rule 7.2 the lawyer receives no response, any further effort
to communicate with the prospective client may violate the provisions of
Rule 7.3(b).
[6] This Rule is not intended to prohibit a lawyer from contacting
representatives of organizations or groups that may be interested in
establishing a group or prepaid legal plan for their members, insureds,
beneficiaries or other third parties for the purpose of informing such
entities of the availability of and details concerning the plan or
arrangement which the lawyer or lawyer's firm is willing to offer. This
form of communication is not directed to a prospective client. Rather, it
is usually addressed to an individual acting in a fiduciary capacity
seeking a supplier of legal services for others who may, if they choose,
become prospective clients of the lawyer. Under these circumstances, the
activity which the lawyer undertakes in communicating with such
representatives and the type of information transmitted to the individual
are functionally similar to and serve the same purpose as advertising
permitted under Rule 7.2.
[7] [Reserved.]
[8] Paragraph (d) of this Rule permits a lawyer to participate with an
organization which uses personal contact to solicit members for its group
or prepaid legal service plan, provided that the personal contact is not
undertaken by any lawyer who would be a provider of legal services through
the plan. The organization must not be owned by or directed (whether as
manager or otherwise) by any lawyer or law firm that participates in the
plan. For example, paragraph (d) would not permit a lawyer to create an
organization controlled directly or indirectly by the lawyer and use the
organization for the in-person or telephone solicitation of legal
employment of the lawyer through memberships in the plan or otherwise. The
communication permitted by these organizations also must not be directed to
a person known to need legal services in a particular matter, but is to be
designed to inform potential plan members generally of another means of
affordable legal services. Lawyers who participate in a legal service plan
must reasonably assure that the plan sponsors are in compliance with Rules
7.1, 7.2 and 7.3(b). See 8.4(a).
Additional Washington Comments (9 - 12)
[9] A lawyer who receives a referral from a third party should exercise
caution in contacting the prospective client directly by in-person, live
telephone, or real-time electronic contact. Such contact is generally
prohibited by this Rule unless the prospective client has asked to be
contacted by the lawyer. A prospective client may request such contact
through a third party. Prior to initiating contact with the prospective
client, however, the lawyer should confirm with the source of the referral
that the prospective client has indeed made such a request. Similarly, when
making referrals to other lawyers, the referring lawyer should discuss with
the prospective client whether he or she wishes to be contacted directly.
[10] Those in need of legal representation often seek assistance in
finding a lawyer through a lawyer referral service. Washington adopted
paragraph (a)(3) in order to facilitate communication between lawyers and
potential clients who have specifically requested a referral from a not-for-
profit lawyer referral service. Under this paragraph, a lawyer receiving
such a referral may contact the potential client directly by in-person,
live telephone, or real-time electronic contact to discuss possible representation.
[11] Washington did not adopt paragraph (c) of the Model Rule relating to
labeling of communications with prospective clients. A specific labeling
requirement is unnecessary in light of the prohibition in Rule 7.1 against
false or misleading communications.
[12] The phrase "directly or through a third person" in paragraph (a) was
retained from former Washington RPC 7.3(a).
[Amended effective September 1, 2006.]
RULE 7.4
COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION
(a) A lawyer may communicate the fact that the lawyer does or does not
practice in particular fields of law.
(b) A lawyer admitted to engage in patent practice before the United
States Patent and Trademark Office may use the designation "Patent
Attorney" or a substantially similar designation.
(c) A lawyer engaged in Admiralty practice may use the designation
"Admiralty," "Proctor in Admiralty" or substantially similar designation.
(d) A lawyer shall not state or imply that a lawyer is a specialist in
a particular field of law, except upon issuance of an identifying
certificate, award, or recognition by a group, organization, or
association, a lawyer may use the terms "certified", "specialist",
"expert", or any other similar term to describe his or her qualifications
as a lawyer or his or her qualifications in any subspecialty of the law.
If the terms are used to identify any certificate, award, or recognition
by any group, organization, or association, the reference must:
(1) be truthful and verifiable and otherwise comply with Rule 7.1;
(2) identify the certifying group, organization, or association; and
(3) state that the Supreme Court of Washington does not recognize
certification of specialties in the practice of law and that the
certificate, award, or recognition is not a requirement to practice law
in the state of Washington.
Comment
[1] [Washington revision] Paragraph (a) of this Rule permits a lawyer
to indicate areas of practice in communications about the lawyer's
services. If a lawyer practices only in certain fields, or will not
accept matters except in a specified field or fields, the lawyer is
permitted to so indicate.
[2] Paragraph (b) recognizes the long-established policy of the Patent
and Trademark Office for the designation of lawyers practicing before the
Office. Paragraph (c) recognizes that designation of Admiralty practice
has a long historical tradition associated with maritime commerce and the
federal courts.
[3] [Reserved.]
Additional Washington Comment (4)
[4] Statements indicating that the lawyer is a "specialist," practices
a "specialty," "specializes in" particular fields, and the like, are
subject to the limitations set forth in paragraph (d). The provisions of
paragraph (d) were taken from former Washington RPC 7.4(b).
[Amended effective September 1, 2006.]
RPC RULE 7.5
FIRM NAMES AND LETTERHEADS
(a) A lawyer shall not use a firm name, letterhead or other
professional designation that violates Rule 7.1. A trade name may be
used by a lawyer in private practice if it does not imply a connection
with a government agency or with a public or charitable legal services
organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the
same name or other professional designation in each jurisdiction, but
identification of the lawyers in an office of the firm shall indicate the
jurisdictional limitations on those not licensed to practice in the
jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in
the name of a law firm, or in communications on its behalf, during any
substantial period in which the lawyer is not actively and regularly
practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or
other organization only when that is a fact.
Comment
[1] A firm may be designated by the names of all or some of its
members, by the names of deceased members where there has been a
continuing succession in the firm's identity or by a trade name such as
the "ABC Legal Clinic." A lawyer or law firm may also be designated by a
distinctive website address or comparable professional designation.
Although the United States Supreme Court has held that legislation may
prohibit the use of trade names in professional practice, use of such
names in law practice is acceptable so long as it is not misleading. If a
private firm uses a trade name that includes a geographical name such as
"Springfield Legal Clinic," an express disclaimer that it is a public
legal aid agency may be required to avoid a misleading implication. It
may be observed that any firm name including the name of a deceased
partner is, strictly speaking, a trade name. The use of such names to
designate law firms has proven a useful means of identification. However,
it is misleading to use the name of a lawyer not associated with the firm
or a predecessor of the firm, or the name of a nonlawyer.
[2] With regard to paragraph (d), lawyers sharing office facilities,
but who are not in fact associated with each other in a law firm, may not
denominate themselves as, for example, "Smith and Jones," for that title
suggests that they are practicing law together in a firm.
Additional Washington Comment (3)
[3] Lawyers practicing out of the same office who are not partners,
shareholders of a professional corporation, or members of a professional
limited liability company or partnership may not join their names
together. Lawyers who are not 1) partners, shareholders of a professional
corporation, or members of a professional limited liability company or
partnership, or 2) employees of a sole proprietorship, partnership,
professional corporation, or members of a professional limited liability
company or partnership or other organization, or 3) in the relationship
of being "Of Counsel" to a sole proprietorship, partnership, professional
corporation, or members of a professional limited liability company or
partnership or other organization, must have separate letterheads, cards
and pleading paper, and must sign their names individually at the end of
all pleadings and correspondence and not in conjunction with the names of
other lawyers. (The provisions of this Comment were taken from former
Washington RPC 7.5(d).)
[Amended effective July 2, 1996; September 1, 2006.]
RPC RULE 7.6
POLITICAL CONTRIBUTIONS TO OBTAIN GOVERNMENT LEGAL ENGAGEMENTS OR
APPOINTMENTS BY JUDGES
A lawyer or law firm shall not accept a government legal engagement or
an appointment by a judge if the lawyer or law firm makes a political
contribution or solicits political contributions for the purpose of
obtaining or being considered for that type of legal engagement or appointment.
Comment
[1] Lawyers have a right to participate fully in the political process,
which includes making and soliciting political contributions to
candidates for judicial and other public office. Nevertheless, when
lawyers make or solicit political contributions in order to obtain an
engagement for legal work awarded by a government agency, or to obtain
appointment by a judge, the public may legitimately question whether the
lawyers engaged to perform the work are selected on the basis of
competence and merit. In such a circumstance, the integrity of the
profession is undermined.
[2] The term "political contribution" denotes any gift, subscription,
loan, advance or deposit of anything of value made directly or indirectly
to a candidate, incumbent, political party or campaign committee to
influence or provide financial support for election to or retention in
judicial or other government office. Political contributions in
initiative and referendum elections are not included. For purposes of
this Rule, the term "political contribution" does not include
uncompensated services.
[3] Subject to the exceptions below, (i) the term "government legal
engagement" denotes any engagement to provide legal services that a
public official has the direct or indirect power to award; and (ii) the
term "appointment by a judge" denotes an appointment to a position such
as referee, commissioner, special master, receiver, guardian or other
similar position that is made by a judge. Those terms do not, however,
include (a) substantially uncompensated services; (b) engagements or
appointments made on the basis of experience, expertise, professional
qualifications and cost following a request for proposal or other process
that is free from influence based upon political contributions; and (c)
engagements or appointments made on a rotational basis from a list
compiled without regard to political contributions.
[4] The term "lawyer or law firm" includes a political action committee
or other entity owned or controlled by a lawyer or law firm.
[5] Political contributions are for the purpose of obtaining or being
considered for a government legal engagement or appointment by a judge
if, but for the desire to be considered for the legal engagement or
appointment, the lawyer or law firm would not have made or solicited the
contributions. The purpose may be determined by an examination of the
circumstances in which the contributions occur. For example, one or more
contributions that in the aggregate are substantial in relation to other
contributions by lawyers or law firms, made for the benefit of an
official in a position to influence award of a government legal
engagement, and followed by an award of the legal engagement to the
contributing or soliciting lawyer or the lawyer's firm would support an
inference that the purpose of the contributions was to obtain the
engagement, absent other factors that weigh against existence of the
proscribed purpose. Those factors may include among others that the
contribution or solicitation was made to further a political, social, or
economic interest or because of an existing personal, family, or
professional relationship with a candidate.
[6] If a lawyer makes or solicits a political contribution under
circumstances that constitute bribery or another crime, Rule 8.4(b) is implicated.
[Adopted effective September 1, 2006.]
RPC RULE 8.1
BAR ADMISSION AND DISCIPLINARY MATTERS
An applicant for admission to the Bar, or a lawyer in connection with
a bar admission or reinstatement application, or in connection with a
disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail to
respond to a lawful demand for information from an admissions or
disciplinary authority, except that this Rule does not require
disclosure of information otherwise protected by Rule 1.6.
Comment
[1] The duty imposed by this Rule extends to persons seeking admission
to the bar as well as to lawyers. Hence, if a person makes a material
false statement in connection with an application for admission, it may
be the basis for subsequent disciplinary action if the person is
admitted, and in any event may be relevant in subsequent admission
application. The duty imposed by this Rule applies to a lawyer's own
admission or discipline as well as that of others. Thus, it is a
separate professional offense for a lawyer to knowingly make a
misrepresentation or omission in connection with a disciplinary
investigation of the lawyer's own conduct. Paragraph (b) of this Rule
also requires correction of any prior misstatement in the matter that
the applicant or lawyer may have made and affirmative clarification of
any misunderstanding on the part of the admissions or disciplinary
authority of which the person involved becomes aware.
[2] This Rule is subject to the provisions of the fifth amendment of
the United States Constitution and corresponding provisions of state
constitutions. A person relying on such a provision in response to a
question, however, should do so openly and not use the right of
nondisclosure as a justification for failure to comply with this Rule.
[3] A lawyer representing an applicant for admission to the bar, or
representing a lawyer who is the subject of a disciplinary inquiry or
proceeding, is governed by the rules applicable to the client-lawyer
relationship, including Rule 1.6 and, in some cases, Rule 3.3.
Additional Washington Comment (4)
[4] A lawyer's obligations under this Rule are in addition to the
lawyer's obligations under the Rules for Enforcement of Lawyer Conduct.
[Amended effective October 1, 2002; September 1, 2006.]
RPC RULE 8.2
JUDICIAL AND LEGAL OFFICIALS
(a) A lawyer shall not make a statement that the lawyer knows to be
false or with reckless disregard as to its truth or falsity concerning
the qualifications, integrity, or record of a judge, adjudicatory
officer or public legal officer, or of a candidate for election or
appointment to judicial or legal office.
(b) A lawyer who is a candidate for judicial office shall comply with
the applicable provisions of the Code of Judicial Conduct.
Comment
[1] Assessments by lawyers are relied on in evaluating the
professional or personal fitness of persons being considered for
election or appointment to judicial office and to public legal offices,
such as attorney general, prosecuting attorney and public defender.
Expressing honest and candid opinions on such matters contributes to
improving the administration of justice. Conversely, false statements by
a lawyer can unfairly undermine public confidence in the administration
of justice.
[2] When a lawyer seeks judicial office, the lawyer should be bound by
applicable limitations on political activity.
[3] To maintain the fair and independent administration of justice,
lawyers are encouraged to continue traditional efforts to defend judges
and courts unjustly criticized.
[Amended effective September 1, 2006.]
RPC RULE 8.3
REPORTING PROFESSIONAL MISCONDUCT
(a) A lawyer who knows that another lawyer has committed a violation of
the Rules of Professional Conduct that raises a substantial question as
to that lawyer's honesty, trustworthiness or fitness as a lawyer in other
respects, should inform the appropriate professional authority.
(b) A lawyer who knows that a judge has committed a violation of
applicable rules of judicial conduct that raises a substantial question
as to the judges fitness for office should inform the appropriate authority.
(c) This Rule does not permit a lawyer to report the professional
misconduct of another lawyer or a judge to the appropriate authority if
doing so would require the lawyer to disclose information otherwise
protected by Rule 1.6.
Comment
[1] [Washington revision] Lawyers are not required to report the
misconduct of other lawyers or judges. Self-regulation of the legal
profession, however, creates an aspiration that members of the profession
report misconduct to the appropriate disciplinary authority when they
know of a serious violation of the Rules of Professional Conduct. Lawyers
have a similar aspiration with respect to judicial misconduct. An
apparently isolated violation may indicate a pattern of misconduct that
only a disciplinary investigation can uncover. Reporting a violation is
especially important where the victim is unlikely to discover the offense.
[2] [Reserved.]
[3] [Washington revision] While lawyers are not obliged to report every
violation of the Rules, the failure to report a serious violation may
undermine the belief that lawyers should be a self-regulating profession.
A measure of judgment is, therefore, required in deciding whether to
report a violation. The term "substantial" refers to the seriousness of
the possible offense and not the quantum of evidence of which the lawyer
is aware. A report should be made whenever a lawyer's conduct raises a
serious question as to the honesty, trustworthiness or fitness to
practice. Similar considerations apply to the reporting of judicial misconduct.
[4] [Washington revision] This Rule does not apply to a lawyer retained
to represent a lawyer whose professional conduct is in question. Such a
situation is governed by the Rules applicable to the client-lawyer relationship.
[5] [Washington revision] Information about a lawyer's or judge's
misconduct or fitness may be received by a lawyer in the course of that
lawyer's participation in an approved lawyers or judges assistance
program. In that circumstance, there is no requirement or aspiration of
reporting. Admission to Practice Rule 19(b) makes confidential
communications between lawyer-clients and staff or peer counselors of the
Lawyers' Assistance Program (LAP) of the WSBA privileged. Likewise,
Discipline Rule for Judges 14(e) makes confidential communications
between judges and peer counselors and the Judicial Assistance Committees
of the various judges associations or the LAP of the WSBA privileged.
Lawyers and judges should not hesitate to seek assistance from these
programs and to help prevent additional harm to their professional
careers and additional injury to the welfare of clients and the public.
[Amended effective September 1, 2006.]
RULE 8.4
MISCONDUCT
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government
agency or official or to achieve results by means that violate the Rules of
Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law;
(g) commit a discriminatory act prohibited by state law on the basis of
sex, race, age, creed, religion, color, national origin, disability, sexual
orientation, or marital status, where the act of discrimination is
committed in connection with the lawyer's professional activities. In
addition, it is professional misconduct to commit a discriminatory act on
the basis of sexual orientation if such an act would violate this Rule when
committed on the basis of sex, race, age, creed, religion, color, national
origin, disability, or marital status. This Rule shall not limit the
ability of a lawyer to accept, decline, or withdraw from the representation
of a client in accordance with Rule 1.16;
(h) in representing a client, engage in conduct that is prejudicial to
the administration of justice toward judges, other parties and/or their
counsel, witnesses and/or their counsel, jurors, or court personnel or
officers, that a reasonable person would interpret as manifesting prejudice
or bias on the basis of sex, race, age, creed, religion, color, national
origin, disability, sexual orientation, or marital status. This Rule does
not restrict a lawyer from representing a client by advancing material
factual or legal issues or arguments.
(i) commit any act involving moral turpitude, or corruption, or any
unjustified act of assault or other act which reflects disregard for the
rule of law, whether the same be committed in the course of his or her
conduct as a lawyer, or otherwise, and whether the same constitutes a
felony or misdemeanor or not; and if the act constitutes a felony or
misdemeanor, conviction thereof in a criminal proceeding shall not be a
condition precedent to disciplinary action, nor shall acquittal or
dismissal thereof preclude the commencement of a disciplinary proceeding;
(j) willfully disobey or violate a court order directing him or her to
do or cease doing an act which he or she ought in good faith to do or forbear;
(k) violate his or her oath as an attorney;
(l) violate a duty or sanction imposed by or under the Rules for
Enforcement of Lawyer Conduct in connection with a disciplinary matter;
including, but not limited to, the duties catalogued at ELC 1.5;
(m) violate the Code of Judicial Conduct; or
(n) engage in conduct demonstrating unfitness to practice law.
Comment
[1] Lawyers are subject to discipline when they violate or attempt to
violate the Rules of Professional Conduct, knowingly assist or induce
another to do so or do so through the acts of another, as when they request
or instruct an agent to do so on the lawyer's behalf. Paragraph (a),
however, does not prohibit a lawyer from advising a client concerning
action the client is legally entitled to take.
[2] [Reserved.]
[3] [Washington revision] Legitimate advocacy respecting the factors set
forth in paragraph (h) does not violate paragraphs (d) or (h). A trial
judge's finding that peremptory challenges were exercised on a
discriminatory basis does not alone establish a violation of this Rule.
[4] A lawyer may refuse to comply with an obligation imposed by law upon
a good faith belief that no valid obligation exists. The provisions of Rule
1.2(d) concerning a good faith challenge to the validity, scope, meaning or
application of the law apply to challenges of legal regulation of the
practice of law.
[5] Lawyers holding public office assume legal responsibilities going
beyond those of other citizens. A lawyer's abuse of public office can
suggest an inability to fulfill the professional role of lawyers. The same
is true of abuse of positions of private trust such as trustee, executor,
administrator, guardian, agent and officer, director or manager of a
corporation or other organization.
Additional Washington Comment (6)
[6] Paragraphs (g) - (n) were taken from former Washington RPC 8.4 (as amended in 2002).
[Amended effective October 1, 2002; September 1, 2006.]
RULE 8.5
DISCIPLINARY AUTHORITY; CHOICE OF LAW
(a) Disciplinary Authority. A lawyer admitted to practice in this
jurisdiction is subject to the disciplinary authority of this jurisdiction,
regardless of where the lawyer's conduct occurs. A lawyer not admitted in this
jurisdiction is also subject to the disciplinary authority of this jurisdiction
if the lawyer provides or offers to provide any legal services in this
jurisdiction. A lawyer may be subject to the disciplinary authority of both
this jurisdiction and another jurisdiction for the same conduct.
(b) Choice of Law. In any exercise of the disciplinary authority of this
jurisdiction, the rules of professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits, unless the rules of the
tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the
lawyer's conduct occurred, or, if the predominant effect of the conduct is in a
different jurisdiction, the rules of that jurisdiction shall be applied to the
conduct. A lawyer shall not be subject to discipline if the lawyer's conduct
conforms to the rules of a jurisdiction in which the lawyer reasonably believes
the predominant effect of the lawyer's conduct will occur.
(c) Disciplinary Authority over Judges. Notwithstanding the provisions of
Rule 8.4(m), a lawyer, while serving as a judge or justice as defined in RCW
2.64.010, shall not be subject to the disciplinary authority provided for in
these Rules or the Rules for Enforcement of Lawyer Conduct for acts performed
in his or her judicial capacity or as a candidate for judicial office unless
judicial discipline is imposed for that conduct by the Commission on Judicial
Conduct or the Supreme Court. Disciplinary authority should not be exercised
for the identical conduct if the violation of the Code of Judicial Conduct
pertains to the role of the judiciary and does not relate to the judge's or
justice's fitness to practice law.
Comment
Disciplinary Authority
[1] It is longstanding law that the conduct of a lawyer admitted to practice
in this jurisdiction is subject to the disciplinary authority of this
jurisdiction. Extension of the disciplinary authority of this jurisdiction to
other lawyers who provide or offer to provide legal services in this
jurisdiction is for the protection of the citizens of this jurisdiction.
Reciprocal enforcement of a jurisdiction's disciplinary findings and sanctions
will further advance the purposes of this Rule. See, Rules 6 and 22, ABA Model
Rules for Lawyer Disciplinary Enforcement. A lawyer who is subject to the
disciplinary authority of this jurisdiction under Rule 8.5(a) appoints an
official to be designated by this Court to receive service of process in this
jurisdiction. The fact that the lawyer is subject to the disciplinary authority
of this jurisdiction may be a factor in determining whether personal
jurisdiction may be asserted over the lawyer for civil matters.
Choice of Law
[2] A lawyer may be potentially subject to more than one set of rules of
professional conduct which impose different obligations. The lawyer may be
licensed to practice in more than one jurisdiction with differing rules, or may
be admitted to practice before a particular court with rules that differ from
those of the jurisdiction or jurisdictions in which the lawyer is licensed to
practice. Additionally, the lawyer's conduct may involve significant contacts
with more than one jurisdiction.
[3] Paragraph (b) seeks to resolve such potential conflicts. Its premise is
that minimizing conflicts between rules, as well as uncertainty about which
rules are applicable, is in the best interest of clients and the profession (as
well as the bodies having authority to regulate the profession). Accordingly,
it takes the approach of (i) providing that any particular conduct of a lawyer
shall be subject to only one set of rules of professional conduct, (ii) making
the determination of which set of rules applies to particular conduct as
straightforward as possible, consistent with recognition of appropriate
regulatory interests of relevant jurisdictions, and (iii) providing protection
from discipline for lawyers who act reasonably in the face of uncertainty.
[4] Paragraph (b)(1) provides that as to a lawyer's conduct relating to a
proceeding pending before a tribunal, the lawyer shall be subject only to the
rules of the jurisdiction in which the tribunal sits unless the rules of the
tribunal, including its choice of law rule, provide otherwise. As to all other
conduct, including conduct in anticipation of a proceeding not yet pending
before a tribunal, paragraph (b)(2) provides that a lawyer shall be subject to
the rules of the jurisdiction in which the lawyer's conduct occurred, or, if
the predominant effect of the conduct is in another jurisdiction, the rules of
that jurisdiction shall be applied to the conduct. In the case of conduct in
anticipation of a proceeding that is likely to be before a tribunal, the
predominant effect of such conduct could be where the conduct occurred, where
the tribunal sits or in another jurisdiction.
[5] When a lawyer's conduct involves significant contacts with more than one
jurisdiction, it may not be clear whether the predominant effect of the
lawyer's conduct will occur in a jurisdiction other than the one in which the
conduct occurred. So long as the lawyer's conduct conforms to the rules of a
jurisdiction in which the lawyer reasonably believes the predominant effect
will occur, the lawyer shall not be subject to discipline under this Rule.
[6] If two admitting jurisdictions were to proceed against a lawyer for the
same conduct, they should, applying this Rule, identify the same governing
ethics rules. They should take all appropriate steps to see that they do apply
the same rule to the same conduct, and in all events should avoid proceeding
against a lawyer on the basis of two inconsistent rules.
[7] The choice of law provision applies to lawyers engaged in transnational
practice, unless international law, treaties or other agreements between
competent regulatory authorities in the affected jurisdictions provide otherwise.
[8] The Commission on Judicial Conduct is an independent agency of the
judicial branch of state government. Wash. Const. Art. IV, § 31; RCW
2.64.120. The Commission has authority to receive and investigate complaints
of, and conduct proceedings as to, alleged violations of rules of judicial
conduct by a "judge or justice". Wash. Const. Art. IV, § 31; RCW 2.64.057.
The terms "judge" and "justice" are defined to include justices of the
supreme court, judges of the court of appeals, judges of the superior courts,
judges of any court organized under RCW Titles 3 or 35, judges pro tempore,
court commissioners, and magistrates, and the Commission's authority applies
regardless of whether the judge or justice serves full time or part time.
RCW 2.64.010(4).
[9] Whether an act is performed in the judge's "judicial capacity" depends
on the facts and circumstances of the conduct. In general, acts are
performed in the judicial capacity if they involve the making of judicial
decisions, the performance of judicial duties, or the discharge of
administrative responsibilities in connection with judicial office. Other
factors include whether the act was performed or purported to be performed in
the individual's official capacity as a judge and whether the conduct is
expressly governed by the Code of Judicial Conduct. With the exception of
conduct committed during a judicial campaign, see Comment [12], paragraph (c)
does not apply to conduct occurring prior to service as a judge, nor does it
apply to conduct wholly outside of the judicial capacity.
[10] Paragraph (c) does not prevent the exercise of disciplinary authority
over (1) a judge or justice after he or she has been disciplined for judicial
misconduct by the Commission on Judicial Conduct or the Supreme Court, (2) a
former judge or justice, or (3) a lawyer who serves as a pro tem or part time
judge for acts performed by him or her as a lawyer and otherwise outside of
his or her judicial capacity.
[11] [Reserved.]
[12] Acts performed as a candidate for judicial office are governed by
paragraph (c) if performed by a judge or a justice or a successful lawyer
candidate for judicial office. This rule has no application to acts
performed by an unsuccessful lawyer candidate for judicial office.
[13] Paragraph (c) applies to judges and justices defined to be within the
jurisdiction of the Commission on Judicial Conduct under Wash. Const. Art.
IV, § 31 and RCW Title 2.64 and is not intended to apply to other lawyers in
this state designated as judges, including but not limited to federal judges,
administrative law judges, and tribal judges.
[Amended effective October 1, 2002; September 1, 2006; September 1, 2010.]
GUIDELINES FOR APPLYING
RULE OF PROFESSIONAL CONDUCT 3.6
I. Criminal
A. The kind of statement referred to in Rule 3.6 which may potentially
prejudice criminal proceedings is a statement which relates to:
(1) The character, credibility, reputation or criminal record of a
suspect or defendant;
(2) The possibility of a plea of guilty to the offense or the
existence or contents of a confession, admission or statement given by a
suspect or defendant or that persons refusal or failure to make a statement;
(3) The performance or results of any investigative examination or
test such as a polygraph examination or a laboratory test or the failure
of a person to submit to an examination or test;
(4) Any opinion as to the guilt or innocence of any suspect or defendant;
(5) The credibility or anticipated testimony of a prospective
witness; and
(6) Information the lawyer knows or reasonably should know is likely
to be inadmissible as evidence in a trial.
B. The public has a legitimate interest in the conduct of judicial
proceedings and the administration of justice. Lawyers involved in the
litigation of criminal matters may state without elaboration:
(1) The general nature of the charge or defense;
(2) The information contained in the public record; and
(3) The scheduling of any step in litigation, including a scheduled
court hearing to enter a plea of guilty.
C. The public also has a right to know about threats to its safety and
measures aimed at assuring its security. Toward that end a public
prosecutor or other lawyer involved in the investigation of a criminal
case may state:
(1) That an investigation is in progress, including the general scope
of the investigation and, except when prohibited by law, the identity of
the persons involved;
(2) A request for assistance in obtaining evidence and information;
(3) A warning of danger concerning the behavior of a person involved
when there is reason to believe that there exists the likelihood of
substantial harm to an individual or to the public interest; and
(4) (i) The identity, residence, occupation and family status of the accused;
(ii) information necessary to aid in apprehension of the accused;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or
agencies and the length of the investigation.
II. Civil
The kind of statement referred to in Rule 3.6 which may potentially
prejudice civil matters triable to a jury is a statement designed to
influence the jury or to detract from the impartiality of the proceedings.
[Amended September 1, 2006.]
ADMISSION TO PRACTICE RULES (APR)
TABLE OF RULES
Rules
1 In General, Supreme Court Prerequisites to The Practice of Law; Immunity
2 Board of Governors
3 Applicants To Take the Bar Examination
4 Bar Examinations; Certification of Results
5 Recommendation for Admission; Order Admitting to Practice; Payment of Membership Fee;
Oath of Attorney; Resident Agent
6 Law Clerk Program
7 Investigations; Duty of Applicant
8 Special Admissions
9 Legal Interns
10 Reserved
11 Continuing Legal Education
11.1 Purpose
11.2 Educational Requirement
11.3 Board of Mandatory Continuing Legal Education
11.4 Powers of the MCLE Board
11.5 Expenses of the MCLE Board
11.6 Reports and Enforcement
11.7 Confidentiality
Regs Regulations of the Washington State Continuing Legal Education Board
Regs Regulations of the Washington State Continuing Legal Education Board
12 Limited Practice Rule for Limited Practice Officers
LPO Continuing Education Regulations of the Limited Practice Board
LPO Regulations of the APR 12 Limited Practice Board
LPO Limited Practice Officer Rules of Professional Conduct (LPORPC)
LPO Disciplinary Regulations Applicable to ELPOC Title 15
LPO Rules for Enforcement of Limited Practice Officer Conduct (ELPOC)
13 Signing of Pleadings and Other Papers; Address of Record; Electronic Mail Address;
Notice of Change of Address, Telephone Number, or Name
14 Limited Practice Rule for Foreign Law Consultants
15 Lawyers' Fund for Client Protection
15 Lawyers' Fund for Client Protection - Procedural Rules
16 Mediation Program
17 Suspension from Practice
18 Admission of Lawyers Licensed in Other States or Territories of the United States or the
District of Columbia to Practice Law in Washington
19 Lawyer Services
20 Character and Fitness Board
20.1 Authority of Board
20.2 Meetings
20.3 Bar Counsel
20.4 Clerk
20.5 Service
21 Character Defined
22 Fitness Defined; Independent Fitness Examination
23 Character and Fitness Board - Prehearing Procedure - Applications for Admission
24 Applications for Admission
24.1 Duty of Applicant
24.2 Factors Considered when Determining Character and Fitness
24.3 Hearings
24.4 Decision and Recommendation
24.5 Action on Supreme Court's Determination
25 Petitions for Reinstatement after Disbarment
25.1 Restrictions on Reinstatement
25.2 Reversal of Conviction
25.3 Petitions and Investigations
25.4 Hearing Before Character and Fitness Board
25.5 Action by Character and Fitness Board
25.6 Action on Supreme Court's Determination
26 Insurance Disclosure
27 Provision of Legal Services Following Determination of Major Disaster
28 Limited Practice Rule for Limited License Legal Technicians
APR 1
IN GENERAL; SUPREME COURT; PREREQUISITES
TO THE PRACTICE OF LAW; IMMUNITY
(a) Supreme Court. The Supreme Court of Washington has the
exclusive responsibility and the inherent power to establish
the qualifications for admission to practice law, and to
admit persons to practice law in this state. Any person
carrying out the functions set forth in these rules is
acting under the authority and at the direction of the
Supreme Court.
(b) Prerequisites to the Practice of Law. Except as may be
otherwise provided in these rules, a person shall not appear
as an attorney or counsel in any of the courts of the State
of Washington, or practice law in this state, unless that
person has passed the Washington State bar examination, has
complied with the other requirements of these rules, and is
an active member of the Washington State Bar Association
(referred to in these rules as the Bar Association). A
person shall be admitted to the practice of law and become
an active member of the Bar Association only by order of the
Supreme Court.
(c) Communications to the Association. Communications to the
Association, the Board of Governors, the Board of Bar
Examiners, the Character and Fitness Board, the Law Clerk
Board, mediators, mediation staff, or any other individual
person, board, committee or other entity acting under
authority of these rules, are absolutely privileged, and no
lawsuit may be predicated thereon.
[Amended effective September 1, 1984; September 1, 1999;
September 1, 2005; September 1, 2006; January 2, 2008;
January 13, 2009]
APR 2
BOARD OF GOVERNORS
(a) Powers. In addition to any other power or authority in
other rules, the Board of Governors of the Bar Association
(referred to in these rules as the Board of Governors)
shall have the power and authority to:
(1) Appoint a Board of Bar Examiners from among the
active members of the Bar Association for the purposes
of assisting the Board of Governors in conducting the
bar examination;
(2) Appoint a Law Clerk Board from among the active
members of the Bar Association for the purposes of
assisting the Board of Governors in supervising the
Law Clerk Program;
(3) Appoint a Character and Fitness Board pursuant to
rule 20;
(4) Approve or deny applications for permission to
take the bar examination, to enroll in the law clerk
program, to be admitted to practice pursuant to rule
18, or to engage in the limited practice of law under
pertinent provisions of rules 8, 9, and 14;
(5) Investigate all aspects of an applicant's
qualifications to take the bar examination, to be
admitted to the practice of law, to engage in the
limited practice of law under pertinent provisions of
rules 8, 9, and 14, or to enroll in the law clerk
program;
(6) Recommend to the Supreme Court the admission or
rejection of each applicant who has passed the bar
examination or who is applying to engage in the
limited practice of law under pertinent provisions of
rules 8 and 9;
(7) Approve law schools for the purposes of these
rules and maintain a list of such approved law schools
on file with the Clerk of the Supreme Court;
(8) Prescribe, with the approval of the Supreme Court,
the amount of any fees required by these rules;
(9) Prescribe the form and content of any application,
certificate, or other document referred to in these
rules; and
(10) Perform any other functions and take any other
actions provided for in these rules, or as may be
delegated by the Supreme Court, or as may be necessary
and proper to carry out its duties.
(b) Written Request. Any request to the Board of Governors
for action on any subject under these rules shall be in
writing and shall be properly filed. For the purpose of
these rules, filing shall occur at the headquarters office
of the Bar Association.
[Amended effective July 9, 1965; May 9, 1967; August 1,
1968; September 27, 1968; March 10, 1971; January 1, 1974;
May 1, 1978; November 2, 1978; September 1, 1984; June 2,
1998; September 1, 2005; September 1, 2006; January 13,
2009.]
RULE 3
APPLICANTS TO TAKE THE BAR EXAMINATION
(a) Prerequisite for Admission. Every person desiring to be admitted
to the Bar of the State of Washington must be of good moral character
and must qualify for and pass a bar examination.
(b) Qualification for Bar Examination. To qualify to sit for the bar
examination, a person must present satisfactory proof of either (i)
graduation from a law school approved by the Board of Governors, or
(ii) completion of the law clerk program prescribed by these rules,
or (iii) admission to the practice of law by examination, together
with current good standing, in any state or territory of the United
States or the District of Columbia or any jurisdiction where the
common law of England is the basis of its jurisprudence, and active
legal experience for at least 3 of the 5 years immediately preceding
the filing of the application. "Active legal experience" shall mean
experience either in the active practice of law, or as a teacher at
an approved law school, or as a judge of a court of general or
appellate jurisdiction, or any combination thereof, in a state or
territory of the United States or in the District of Columbia or in
any jurisdiction where the common law of England is the basis of its
jurisprudence.
(c) Exceptions. The Board of Governors may, in its discretion,
withhold permission for an otherwise qualified person to sit for the
bar examination, until completion of an inquiry into the applicants
character and fitness, if the applicant (i) has ever been convicted
of a "serious crime" as defined in ELC 7.1(a)(2), or (ii) has ever
been disbarred or is presently suspended from the practice of law for
disciplinary reasons in any jurisdiction, or (iii) has previously
been denied admission to the Bar in this or any other jurisdiction
for reasons other than failure to pass a bar examination. The Board
of Governors may also withhold permission to sit for the bar
examination where for any other reason there are serious and
substantial questions regarding the present moral character or
fitness of the applicant. The Board of Governors may refer such
matters to the Character and Fitness Board for investigation and
hearing pursuant to these rules.
(d) Forms; Fees; Filing. Every applicant to take the bar examination shall:
(1) Execute and file an application, in the form and manner and
within the time limits that may be prescribed by the Board of Governors;
(2) Pay upon the filing of the application such fees as may be
set by the Board of Governors with the approval of the Supreme
Court; and
(3) Furnish whatever additional information or proof may be
required in the course of investigating the applicant.
(e) Disclosure of Records. Unless expressly authorized by the Supreme
Court or by the bar applicant, bar application forms and related
records, documents, and proceedings shall not be disclosed, except as
necessary to conduct an investigation and hearing pursuant to rule 7.
[Amended effective August 1, 1968; September 27, 1968; March 10,
1971; July 1, 1976; September 1, 1984; May 10, 1990; September 1,
1992; October 1, 2002; September 1, 2005; September 1, 2006.]
RULE 4
BAR EXAMINATIONS; CERTIFICATION OF RESULTS
(a) Bar Examination. The examination for admission to the
bar shall be conducted by and under the direction of the
Board of Governors with the assistance of the Board of Bar
Examiners. The bar examination shall be held in February
and in July of each year, or at such other times as the
Board of Governors may designate, commencing at the times
and in the locations selected by the Board of Governors.
(b) Certification of Results; Notice. As soon as
practicable after the completion of the bar examination,
the Board of Bar Examiners shall certify to the Board of
Governors the grades of all applicants who have taken the
bar examination. The Board of Governors shall cause each
applicant to be notified of the results of the bar
examination. No information will be divulged concerning the
applicants who failed the bar examination.
(c) Repeating Bar Examination. Any applicant failing a bar
examination may apply to take another bar examination.
[Amended effective July 1, 1974; September 1, 1984;
December 5, 2002; January 13, 2009]
RULE 5
RECOMMENDATION FOR ADMISSION; ORDER ADMITTING TO PRACTICE; PAYMENT OF MEMBERSHIP FEE;
OATH OF ATTORNEY; RESIDENT AGENT
(a) Recommendation for Admission. The Board of Governors shall recommend to the Supreme Court the admission
or rejection of each applicant who has passed the bar examination and who has complied with the preadmission
education requirement set forth in this rule. A recommendation for admission shall be based upon the
Board of Governors determination after investigation that the applicant appears to be of good moral character
and in all respects qualified to engage in the practice of law. All recommendations of the Board of Governors
shall be accompanied by the applicant's application for examination and any other documents deemed pertinent
by the Board of Governors or requested by the Supreme Court. The recommendation and all accompanying documents
and papers shall be kept by the Clerk of the Supreme Court in a separate file which shall not be a public record.
(b) Preadmission Education Requirement. Before an applicant who has passed the bar examination or who
qualifies for admission without passing the bar examination may be admitted, the applicant must complete a
minimum of 4 hours education in a curriculum and under circumstances approved by the Board of Governors. These
courses will be offered at no cost to the applicant.
(c) Order Admitting to Practice. After examining the recommendation and accompanying papers transmitted by the
Board of Governors, the Supreme Court may enter such order in each case as it deems advisable. For those applicants
it deems qualified, the Supreme Court shall enter an order admitting them to the practice of law, conditioned
upon such applicants:
(1) Taking and filing with the Clerk of the Supreme Court the Oath of Attorney within 1 year from the date
the bar examination results are made public, except for good cause shown; and
(2) Paying to the Bar Association its membership fee for the current year; and
(3) Designating a resident agent if required to do so by section (f).
(d) Oath of Attorney. The Oath of Attorney must be taken before an elected or appointed judge, excluding judges
pro tempore, sitting in open court in the state of Washington. In the event a successful applicant is outside the
state of Washington and the Chief Justice is satisfied that it is impossible or impractical for the applicant to take
the oath before an elected or appointed judge in this state, the Chief Justice may, upon proper application setting
forth all the circumstances, designate a person authorized by law to administer oaths, before whom the applicant may
appear and take said oath.
(e) Contents of Oath. The oath which all applicants shall take is as follows:
OATH OF ATTORNEY
State of Washington, County of _______________ ss.
I, _______________, do solemnly declare:
1. I am fully subject to the laws of the State of Washington and the laws of the United States and will abide
by the same.
2. I will support the Constitution of the State of Washington and the Constitution of the United States.
3. I will abide by the Rules of Professional Conduct approved by the Supreme Court of the State of Washington.
4. I will maintain the respect due to the courts of justice and judicial officers.
5. I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, or any defense
except as I believe to be honestly debatable under the law, unless it is in defense of a person charged with a
public offense. I will employ, for the purpose of maintaining the causes confided to me, only those means consistent
with truth and honor. I will never seek to mislead the judge or jury by any artifice or false statement.
6. I will maintain the confidence and preserve inviolate the secrets of my client and will accept no compensation
in connection with the business of my client, unless this compensation is from or with the knowledge and approval of
the client or with the approval of the court.
7. I will abstain from all offensive personalities and advance no fact prejudicial to the honor or reputation of
a party or witness unless required by the justice of the cause with which I am charged.
8. I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed,
or delay unjustly the cause of any person.
______________________________________
(Signature)
SUBSCRIBED AND SWORN TO before me this _____ day of __________, 20__.
______________________________________
Judge
(f) Nonresident Lawyers; Resident Agent. There shall be no requirement that an applicant or a member of the
Bar Association be a resident or a bona fide resident in the state of Washington. Every active member of the
Bar Association who does not live or maintain an office in the state of Washington shall file with the Bar Association
the name and address of an agent within this state for the purpose of receiving service of process or of any other
document required or permitted by statute or court rule to be served or delivered to a resident lawyer. Service or
delivery to such agent shall be deemed service upon or delivery to the lawyer.
[Amended effective July 9, 1965; March 10, 1971; April 26, 1974; May 14, 1982; September 1, 1984; October 11, 1985;
June 25, 2002; June 1, 2006; January 8, 2013.]
APR RULE 6
LAW CLERK PROGRAM
(a) Applicants. Every applicant for enrollment in the law
clerk program shall:
(1) Be of good moral character;
(2) Present satisfactory proof of having been granted a
bachelors degree, other than a bachelor of laws, by a
college or university offering such a degree on the
basis of a 4-year course of study;
(3) Obtain regular, full-time employment in the State
of Washington as a law clerk with (i) a judge of a
court of general, limited, or appellate jurisdiction,
or (ii) a lawyer or firm of lawyers licensed to
practice in this state and actively engaged in the
practice of law;
(4) Submit on forms provided by the Bar Association (i)
an application for admission to the law clerk program,
(ii) the tutors statement required by subsection (b)(3)
of this rule, and (iii) an application fee; and
(5) Appear for an interview, provide any additional
information or proof, and cooperate in any
investigation, as may be deemed relevant by the Board
of Governors; and
(6) Pay such fees as may be set by the Board of
Governors with the approval of the Supreme Court.
(b) Tutors. A lawyer or judge may act as a tutor for only
one law clerk at a time. To be eligible to act as a tutor in
the law clerk program, a lawyer or judge shall:
(1) Be an active member in good standing of the Bar
Association, or be a judicial member who is currently
elected or appointed to an elected position, provided
that if a disciplinary sanction has been imposed upon
the lawyer or judge within the 5 years immediately
preceding approval of the law clerk's application for
enrollment, the Board of Governors shall have the
discretion to accept or reject the lawyer or judge as
tutor;
(2) Have been actively and continuously engaged in the
practice of law or have held the required judicial
position for at least 10 years immediately preceding
the filing of the law clerks application for
enrollment; this may be a combination of active
practice and judicial experience; and
(3) Provide a tutors statement certifying to the law
clerk's employment and to the tutors eligibility, and
agreeing to instruct and examine the law clerk in the
curriculum prescribed by the Law Clerk Board with the
approval of the Board of Governors.
(c) Length of Study. A law clerk, whose application for
enrollment has been accepted by the Board of Governors,
shall study for 4 calendar years. Each calendar year shall
consist of 12 months, with a minimum of 120 hours of study
each month, including the time spent in performing the
duties of a law clerk. The tutor shall give personal
supervision to the law clerk averaging at least 3 hours each
week. "Personal supervision" is defined as time actually
spent with the law clerk for the exposition and discussion
of the law, the recitation of cases, and the critical
analysis of the law clerk's written assignments.
(d) Course of Study. The subjects to be studied, the
sequence in which they are to be studied, and any other
matters pertaining thereto shall be as prescribed by the Law
Clerk Board with the approval of the Board of Governors.
(e) Examinations. All law clerks shall:
(1) Each month, complete a written examination
prepared, administered, and graded by the tutor. The
examination shall be answered without research,
assistance, or reference to source materials during the
examination;
(2) Annually, or at such other intervals as may be
established by the Law Clerk Board, appear with the
tutor before the Law Clerk Board for an oral evaluation
of the law clerks progress.
(f) Certificates. In addition to the tutor's statement
required by section (b)(3) of this rule, the tutor shall
submit, on forms provided by the Bar Association:
(1) A monthly certificate, accompanying the written
examination, stating the number of hours the law clerk
studied each week, the number of hours spent by the
tutor in personal supervision each week, that the
written examination was administered as required, and
that, in the opinion of the tutor, the law clerk is
progressing satisfactorily; and
(2) At the conclusion of the law clerk's course of
study, a certificate stating that the law clerk has
completed the prescribed length and course of study,
and, in the tutor's opinion, is qualified to take the
bar examination and is competent to practice law.
(g) Termination. The Board of Governors may direct a law
clerk to change tutors, and may terminate the enrollment of
law clerks or remove tutors from the program. The Law Clerk
Board may recommend to the Board of Governors that the
enrollment of the law clerk in the program be terminated
for:
(1) Failure to complete the prescribed length and
course of study within 6 years from the date the law
clerk's application for admission was accepted;
(2) Failure of the tutor to submit the monthly
examinations and certificates at the end of each month
in which they are due;
(3) Failure to comply with any of the requirements of
the law clerk program; and
(4) Any other grounds deemed pertinent by the Law Clerk
Board.
(h) Advanced Standing. The Board of Governors may grant
advanced standing to an enrolled law clerk who has attended
either an approved or a nonapproved law school.
(i) Effective Date. The revision of this rule shall not
apply retroactively to any law clerk whose enrollment has
been approved and accepted by the Board of Governors prior
to the effective date of this revision. Each law clerk may
complete the course of study under the version of the rule
in effect on the date the application for enrollment to the
law clerk program was accepted.
[Amended effective September 1, 1984; March 6, 1992;
September 1, 1994; June 2, 1998; April 1, 2003; January 13,
2009.]
RULE 7
INVESTIGATIONS; DUTY OF APPLICANT
(a) Investigations. The Board of Governors may refer any application
for permission to take the bar examination, to be admitted to the
practice of law or to be admitted to the limited practice of law
under pertinent provisions of rules 8 and 9, or to enroll in the law
clerk program to state bar counsel or to the Character and Fitness
Board for investigation pursuant to these rules.
(b) Duty of Applicant. It shall be the duty of every applicant to
cooperate with any investigation required by the Board of Governors,
by promptly furnishing written or oral explanations, documents,
releases, authorizations, or anything else reasonably required by the
investigator. Failure to appear as directed or to furnish additional
proof or answers as required or to cooperate fully shall be
sufficient reason for the Board of Governors to reject or to
recommend the rejection of an application.
(c) Subpoenas. The chairperson of the Character and Fitness Board or
Bar Counsel may issue subpoenas to compel attendance of an applicant
or witness, or the production of books, documents, or other evidence,
at a deposition or hearing. Subpoenas shall be served in the same
manner as in civil cases in the superior court.
[Amended effective January 1, 1974; July 1, 1975; July 1, 1977;
September 1, 1984; September 1, 2006.]
APR 8
SPECIAL ADMISSIONS
(a) In General. Lawyers admitted to the practice of law in any state or territory
of the United States or the District of Columbia or in any foreign jurisdiction,
who do not meet therequirements of rule 1(b), may engage in the practice of law in
this state as provided in this rule.
(b) Exception for Particular Action or Proceeding. A member in good standing of
the Bar of any other state or territory of the United States or of the District
of Columbia, who is a resident of and maintains a practice in such other state,
territory, or District, or a lawyer who is providing legal services for no fee
through a qualified legal services provider pursuant to RPC 5.5(e), may appear
as a lawyer in any action or proceeding only (i) with the permission of the court
or tribunal in which the action or proceeding is pending, and (ii) in association
with an active member of the Washington State Bar Association, who shall
be the lawyer of record therein, responsible for the conduct thereof, and present
at proceedings unless excused by the court or tribunal.
(1) An application to appear as such a lawyer shall be made by written motion
to the court or tribunal before whom the action or proceeding is pending, in a
form approved by the Board of Governors, which shall include certification by
the lawyer seeking admission under this rule and the associated Washington
lawyer that the requirements of this rule have been complied with, and shall
include an indication on which date the fee required in part (2) was paid, or
indicating that the fee was waived pursuant to part (2). The motion shall be
heard by the court or tribunal after such notice to the Washington State Bar
Association as is required in part (2) below unless waived pursuant to part
(2), together with the required fee, and to adverse parties as the court or
tribunal shall direct. Payment of the required fee shall only be necessary upon
a lawyer's first application to any court or tribunal in the same case. The
court or tribunal shall enter an order granting or refusing the motion, and, if
the motion is refused, the court or tribunal shall state its reasons.
(2) The lawyer making the motion shall submit a copy of the motion to the
Washington State Bar Association, accompanied by a fee in each case in an
amount set by the Board of Governors with the approval of the Supreme Court.
Payment of the fee shall only be necessary upon a lawyer's first motion to any
court or tribunal in the same case. The associated Washington counsel shall be
jointly responsible for payment of the fee. The fee shall be waived for a
lawyer providing legal services for no fee through a qualified legal services
provider pursuant to RPC 5.5(e). The Washington State Bar Association shall
maintain a public record of all motions for admission pursuant to this rule.
(3) No member of the Bar Association shall lend his or her name
for the purpose of, or in any way assist in, avoiding the effect of this rule.
(c) Exception for Indigent Representation. A member in good standing of the
Bar of another state or territory of the United States or of the District of
Columbia, who is eligible to take the bar examination in this state, while
rendering service in either a bar association or governmentally sponsored legal
services organization or in a public defender's office or similar program providing
legal services to indigents and only in that capacity, may, upon application and
approval, practice law and appear as a lawyer before the courts of this state in
any matter, litigation, or administrative proceeding, subject to the following
conditions and limitations:
(1) Application to practice under this rule shall be made to the Board of
Governors, and the applicant shall be subject to the Rules for Enforcement of
Lawyer Conduct and to the Rules of Professional Conduct.
(2) In any such matter, litigation, or administrative proceeding, the
applicant shall be associated with an active member of the Bar Association, who
shall be the lawyer of record and responsible for the conduct of the matter,
litigation, or administrative proceeding.
(3) The applicant shall apply for and take the first bar examination that is
given more than 90 days after the date of the applicant's admission to practice
under this rule.
(4) The applicant's right to practice under this rule (i) may be terminated
by the Supreme Court at any time with or without cause, or (ii) shall be terminated
automatically for failure to take or pass the required bar examination, or
(iii) shall be terminated for failure to become an active member of the Bar
Association within 60 days of the date the bar examination results are made public,
or (iv) in any event, shall be terminated within 1 year from the original date of
the applicants admission to practice law in this state under this rule.
(d) Exception for Educational Purposes. A lawyer who is enrolled and in good
standing as a postgraduate student or as a faculty member in a program of an
approved law school in this state, involving clinical work in the courts or in
the practice of law, may apply to the Board of Governors for admission to the limited
practice of law by paying an investigation fee and by presenting satisfactory proof
of (i) admission to the practice of law and current good standing in any state or
territory of the United States or the District of Columbia, and (ii) compliance
with the requirements of rule 3(b)(i), and (iii) good moral character.
(1) Upon approval of the application by the Board of Governors, the applicant
shall take the Oath of Attorney, and the Board of Governors shall transmit its
recommendation to the Supreme Court which shall enter an order admitting the
applicant to the limited practice of law under this section.
(2) The practice of an applicant admitted under this section shall be (i)
limited to the period of time the applicant actively participates in the
program, (ii) limited to the clinical work of the particular course of study in
which the applicant is enrolled or teaching, (iii) free of charge for the
services so rendered, and (iv) subject to the Rules of Professional Conduct and
the Rules for Enforcement of Lawyer Conduct.
(3) An applicant admitted under this section shall be deemed an active member
of the Bar Association only for the purpose of serving as a supervising lawyer
under rule 9, and for no other purpose.
(4) When the applicant ceases actively to participate in the program, the
law school dean shall immediately notify the Bar Association and the Clerk of the
Supreme Court so that the applicant's right to practice may be terminated of record.
(e) Exception for Emeritus Membership. A lawyer admitted to the practice of law
in a state or territory of the United States or the District of Columbia, including
Washington State, may apply to the Board of Governors for a limited license to
practice law as an emeritus member in this state when the lawyer is otherwise
fully retired from the practice of law. An emeritus member shall provide legal
services for a qualified legal services provider as defined in part (2) below.
The lawyer shall apply by (I) filing an application in the form and manner that
may be prescribed by the Board of Governors; (ii) presenting satisfactory proof
of admission by examination to the practice of law and current good standing in any
state or territory of the United States or the District of Columbia, provided that
if a disciplinary sanction has been imposed upon the lawyer within 15 years
immediately preceding the filing of the application for emeritus status, the
Board of Governors shall have the discretion to accept or reject the application;
(iii) presenting satisfactory proof of active legal experience as defined in APR
3(b) for at least 5 of the 10 years immediately preceding the filing of the
application for lawyers admitted in Washington and for at least 10 of the 15 years
immediately preceding the filing of the application for lawyers only admitted to
practice in jurisdictions other than Washington; (iv) filing certification
from a qualified legal services provider as defined in part (2) below that the
applicant's practice of law will comply with the terms of this rule; (v) paying
such fee as may be set by the Board of Governors with approval of the Supreme
Court; (vi) complying with training requirements as may be prescribed by the
Board of Governors; and (vii) furnishing whatever additional information or proof
that may be required in the course of investigating the applicant.
(1) Upon approval of the application by the Board of Governors, the lawyer
shall take the Oath of Attorney, pay the current year's annual membership fee
in the amount required of inactive members, and the Board of Governors shall
transmit its recommendation to the Supreme Court which may enter an order
admitting the lawyer to the limited practice of law under this section.
Emeritus status shall be for one year subject to annual renewal as provided by
the Board of Governors.
(2) The practice of a lawyer admitted under this section shall be limited to
providing legal service for no fee through a qualified legal services provider;
or serving as an unpaid governing or advisory board member or trustee of or
providing legal counsel or service for no fee to a qualified legal services
provider. A qualified legal services provider is a not-for-profit legal
services organization whose primary purpose is to provide legal services to low
income clients. The prohibition against compensation for emeritus members
shall not prevent a qualified legal services provider from reimbursing an
emeritus member for actual expenses incurred while rendering legal services
under this rule. A qualified legal services provider shall be entitled to
receive all court awarded attorney's fees for any representation rendered by
the emeritus member.
(3) A lawyer admitted under this section shall pay to the Washington State
Bar Association an annual license fee in the amount required of inactive members.
(4) The practice of a lawyer admitted under this section shall be subject
to the Rules of Professional Conduct, the Rules for Enforcement of Lawyer Conduct,
and to all other laws and rules governing lawyers admitted to the bar of this state.
Jurisdiction shall continue whether or not the lawyer retains the limited license
and irrespective of the residence of the lawyer.
(5) Emeritus members shall be exempt from compliance with rule 11 concerning
Continuing Legal Education. However, prior to engaging in practice as an emeritus
member, the lawyer must complete a training course or courses as approved by the
Board of Governors.
(6) An emeritus member shall promptly report to the Washington State Bar
Association a change in membership status in a state or territory of the United
States or District of Columbia where the applicant has been admitted to the
practice of law or the commencement of any formal disciplinary proceeding in any
jurisdiction where the lawyerhas been admitted to the practice of law.
(7) The limited license granted under this section shall be automatically
terminated when the lawyer's practice fails to comply with part (2) above, the lawyer
fails to comply with the terms of this rule, or on suspension or disbarment in a
state or territory of the United States or District of Columbia where the applicant
has been admitted to the practice of law. If the lawyer whose limited license is
terminated was previously admitted to practice in Washington, the lawyer shall
be transferred to inactive membership status upon termination.
(f) Exception for Foreign House Counsel. A lawyer admitted to the practice of
law in a jurisdiction other than a United States jurisdiction may apply to the Board
of Governors for a limited license to practice law as in-house counsel in this state
when the lawyer is employed in Washington as a lawyer exclusively for a profit or
not for profit corporation, including its subsidiaries and affiliates, association,
or other business entity, that is not a government entity, and whose lawful
business consists of activities other than the practice of law or the provision of
legal services. The lawyer shall apply by (i) filing an application in the form and
manner that may be prescribed by the Board of Governors, (ii) presenting satisfactory
roof of (I) admission by examination to the practice of law and current good standing
in a jurisdiction other than United States jurisdiction and (II) good moral character,
(iii) filing an affidavit from an officer, director, or general counsel of the
applicant's employer in this state attesting to the fact the applicant is employed
as a lawyer for the employer, including its subsidiaries and affiliates, and the nature
of the employment conforms to the requirements of this rule, (iv) paying
the application fees required of foreign lawyer applicants for admission under APR 3,
and (v) furnishing whatever additional information or proof that may be required in
the course of investigating the applicant.
(1) Upon approval of the application by the Board of Governors, the lawyer
shall take the Oath of Attorney, pay the current year's annual membership fee
and the Board of Governors shall transmit its recommendation to the Supreme
Court which may enter an order admitting the lawyer to the limited practice of
law under this section.
(2) The practice of a lawyer admitted under this section shall be limited
to practice exclusively for the employer, including its subsidiaries and affiliates,
furnishing the affidavit required by this rule and shall not include (i) appearing
before a court or tribunal as a person admitted to practice law in this state,
(ii) offering legal services or advice to the public or (iii) holding oneself out
to be so engaged or authorized.
(3) All business cards and employer letterhead used by a lawyer admitted under
this section shall state clearly that the lawyer is admitted to practice in
Washington as in-house counsel.
(4) A lawyer admitted under this section shall pay to the Washington State Bar
Association an annual license fee in the maximum amount required of active
members.
(5) The practice of a lawyer admitted under this section shall be subject to
the Rules of Professional Conduct, the Rules for Enforcement of Lawyer Conduct,
and to all other laws and rules governing lawyers admitted to the active
practice of law in this state. Jurisdiction shall continue whether or not the
lawyer retains the limited license and irrespective of the residence of the lawyer.
(6) The lawyer shall promptly report to the Washington State Bar Association
a change in employment, a change in membership status any jurisdiction where the
applicant has been admitted to the practice of law or the commencement of any formal
disciplinary proceeding in any jurisdiction where the applicant has been admitted
to the practice of law.
(7) The limited license granted under this section shall be automatically
terminated when employment by the employer furnishing the affidavit required by this
rule is terminated, the lawyer has been admitted to the practice of law pursuant to
any other provision of the APR, the lawyer fails to comply with the terms of this
rule, the lawyer fails to maintain current good standing in at least one other
jurisdiction where the lawyer has been admitted to the practice of law, or on
suspension or disbarment for discipline in any jurisdiction where the lawyer has been
admitted to the practice of law. If a lawyer's employment is terminated but the
lawyer, within three months from the last day of employment, is employed by an employer
filing the affidavit required by (iii), the license shall be reinstated.
(g) Exception for Military Lawyers. A lawyer admitted to the practice of law in
a state or territory of the United States or of the District of Columbia, who is a
full-time active duty military officer serving in the office of a Staff Judge Advocate
of the United States Army, Air Force, Navy, Marines, or Coast Guard, a Naval Legal
Service Office or a Trial Service Office, located in the State of Washington, may,
upon application and approval, appear as a lawyer and practice law before the courts
of this state in any matter, litigation, or administrative proceeding, subject to
the following conditions and limitations set forth in this rule. The applicant must
be of good moral character and shall apply by (i) filing an application in the
form and manner that may be prescribed by the Board of Governors; (ii) presenting
satisfactory proof of admission by examination to the practice of law and current
good standing as a member of the bar in any state or territory of the United States
or the District of Columbia; (iii) complying with training requirements as set forth
below; and (iv) furnishing whatever additional information or proof that may be
required in the course of processing the application.
(1) To qualify for admission to practice under this rule, an applicant must,
prior to admission, complete at least 15 credit hours of approved continuing
legal education on Washington practice, procedure, and professional responsibility.
(2) Military lawyers admitted to practice pursuant to this rule are not,
and shall not represent themselves to be members of the Washington State Bar Association.
(3) The applicant's right to practice under this rule: (i) may be terminated
by the Supreme Court at any time with or without cause, or (ii) shall be
terminated when the military lawyer ends active duty military service in this
state. The lawyer admitted under this rule and his or her supervisory Staff
Judge Advocate or his or her Commanding Officer are responsible to advise the
Washington State Bar Association of any change in status of the lawyer that may
affect his or her right to practice law under this rule.
(4) Military lawyers admitted pursuant to the rule may represent active duty
military personnel in enlisted grades E-1 through E-4 and their dependents in
noncriminal matters to the extent such representation is permitted by the
supervisory Staff Judge Advocate or Commanding Officer, Naval Legal Service
Office or Commanding Officer, Trial Service Office. Other active duty military
personnel and their dependents may be represented if approved by the Service
Judge Advocate General or his or her designee.
(5) Military lawyers admitted pursuant to this section may not demand or
receive any compensation from clients in addition to the military pay to which
they are already entitled.
(6) The practice of a lawyer admitted under this section shall be subject to
the Rules of Professional Conduct, the Rules for Enforcement of Lawyer Conduct,
the Admission to Practice Rules, and to all other laws and rules governing
lawyers admitted to the bar of this state. Jurisdiction shall continue whether
or not the lawyer retains the right to practice in Washington and irrespective
of the residence of the lawyer.
[Adopted effective May 20, 1966; amended effective March 10, 1971; July 9, 1982;
September 1, 1984; October 11, 1985; September 1, 1998; March 9, 1999;
March 5, 2002; October 1, 2002; June 24, 2003; November 25, 2003 September 1, 2004;
September 1, 2006; January 2, 2007, May 6, 2008; January 13, 2009; September 1, 2009.]
APR 9
LEGAL INTERNS
(a) Admission to Limited Practice. Qualified law students,
enrolled law clerks, and graduates of approved law schools may
be admitted to the status of legal intern and be granted a
limited license to engage in the practice of law only as
provided in this rule. To qualify, an applicant must:
(1) Be a student duly enrolled and in good academic
standing at an approved law school with legal studies
completed amounting to not less than two-thirds of a
prescribed 3-year course of study or five-eighths of a
prescribed 4-year course of study, and have the written
approval of the applicants law school dean or a person
designated by such dean; or
(2) Be an enrolled law clerk in compliance with the
provisions of rule 6 with not less than five-eighths of
the prescribed 4-year course of study completed, and have
the written approval of the tutor; or
(3) Make the application before the expiration of 9 months
following graduation from an approved law school, and
submit satisfactory evidence thereof for the Bar
Association; and
(4) Pay such fees as may be set by the Board of Governors
with the approval of the Supreme Court; and
(5) Certify in writing under oath that the applicant has
read, is familiar with, and will abide by, the Rules of
Professional Conduct and this rule.
(b) Procedure. The applicant shall submit an application, for
which no fee shall be required, on a form provided by the Bar
Association, setting forth the applicants qualifications.
(1) The application shall give the name of, and shall be
signed by, the supervising lawyer who, in doing so, shall
assume the responsibilities of supervising lawyer set
forth in this rule if the applicant is granted a limited
license as a legal intern. The supervising lawyer shall be
relieved of such responsibilities upon the termination of
the limited license or at an earlier time if the
supervising lawyer or the applicant gives written notice
to the Bar Association and the Supreme Court requesting
that the supervising lawyer be so relieved. In the latter
event another active member of the Bar Association may be
substituted as such supervising lawyer by giving written
notice of such substitution, signed by the applicant and
by such other active member, to the Bar Association and
the Supreme Court.
(2) Upon receipt of the application, it shall be examined
and evaluated by the Board of Governors which shall
endorse thereon its approval or disapproval and forward
the same to the Supreme Court.
(3) The Supreme Court shall issue or refuse the issuance
of a limited license of a legal intern. The Supreme Courts
decision shall be forwarded to the Bar Association, and
the applicant shall be informed of the Supreme Courts decision.
(c) Scope of Practice. A legal intern shall be authorized to
engage in the limited practice of law, in civil and criminal
matters, only as authorized by the provisions of this rule. A
legal intern shall be subject to the Rules of Professional
Conduct and the Rules for Enforcement of Lawyer Conduct as
adopted by the Supreme Court and to all other laws and rules
governing lawyers admitted to the Bar of this state, and shall
be personally responsible for all services performed as an
intern. Upon recommendation of the Disciplinary Board, a legal
intern may be precluded from sitting for the bar examination or
from being admitted as a member of the Bar Association within
the discretion of the Board of Governors. Any such intern
barred from the bar examination or from recommendation for
admission by the Board of Governors shall have the usual rights
of appeal to the Supreme Court.
(1) A judge may exclude a legal intern from active
participation in a case filed with the court in the
interest of orderly administration of justice or for the
protection of a litigant or witness, and shall thereupon
grant a continuance to secure the attendance of the
supervising lawyer.
(2) No legal intern may receive payment from a client for
the interns services. However, nothing contained herein
shall prevent a legal intern from being paid for services
by the interns employer or to prevent the employer from
making such charges for the service of the legal intern as
may otherwise be proper. A legal intern and the interns
supervising lawyer or a lawyer from the same office shall,
before the intern undertakes to perform any services for a
client, inform the client of the legal interns status.
(3) A legal intern may advise or negotiate on behalf of a
person referred to the intern by the supervising lawyer. A
legal intern may prepare necessary pleadings, motions,
briefs or other documents. It is not necessary in such
instances for the supervising lawyer to be present.
(4) A legal intern may participate in superior court and
Court of Appeals proceedings, including depositions,
provided the supervising lawyer or another lawyer from the
same office is present. Ex parte and agreed orders may be
presented to the court by a legal intern without the
presence of the supervising lawyer or another lawyer from
the same office. An intern may represent the State in
juvenile court in misdemeanor and gross misdemeanor cases
without in-court supervision after a reasonable period of
in-court supervision, which shall not be less than one trial.
(5) Except as otherwise provided in subsection (c)(6), in
courts of limited jurisdiction, a legal intern, only after
participating with the supervising lawyer in at least one
nonjury case, may try nonjury cases in such courts without
the presence of a supervising lawyer and, only after
participating with the supervising lawyer in at least one
jury case, may try jury cases in such courts without the
presence of a supervising lawyer.
(6) Either the supervising lawyer or a lawyer from the
same office shall be present in the representation of a
defendant in all preliminary criminal hearings.
(d) Supervising Lawyer. The supervising lawyer shall be an
active member of the Bar Association in good standing, provided
that if a disciplinary sanction has been imposed upon the
lawyer within the 5 years immediately preceding approval of the
application, the Board of Governors shall have the discretion
to accept or reject the lawyer as a supervising lawyer. The
supervising lawyer shall have been actively engaged in the
practice of law in the State of Washington or elsewhere for at
least 3 years at the time the application is filed.
(1) The supervising lawyer or another lawyer from the same
office shall direct, supervise and review all of the work
of the legal intern and both shall assume personal
professional responsibility for any work undertaken by the
legal intern while under the lawyer's supervision. All
pleadings, motions, briefs, and other documents prepared
by the legal intern shall be reviewed by the supervising
lawyer or a lawyer from the same office as the supervising
lawyer. When a legal intern signs any correspondence or
legal document, the interns signature shall be followed by
the title "legal intern" and, if the document is prepared
for presentation to a court or for filing with the clerk
thereof, the document shall also be signed by the
supervising lawyer or lawyer from the same office as the
supervising lawyer. In any proceeding in which a legal
intern appears before the court, the legal intern must
advise the court of the interns status and the name of the
interns supervising lawyer.
(2) Supervision shall not require that the supervising
lawyer be present in the room while the legal intern is
advising or negotiating on behalf of a person referred to
the intern by the supervising lawyer, or while the legal
intern is preparing the necessary pleadings, motions,
briefs, or other documents.
(3) As a general rule, no supervising lawyer shall have
supervision over more than 1 legal intern at any one time.
However, in the case of (i) recognized institutions of
legal aid, legal assistance, public defender and similar
programs furnishing legal assistance to indigents, or
legal departments of a state, county or municipality, the
supervising lawyer may have supervision over 2 legal
interns at one time, or (ii) a clinical course offered by
an approved law school where such course has been approved
by its dean and is directed by a member of its faculty,
and conducted within institutions or legal departments
described in (i) or the law school, each full-time
clinical supervising lawyer may have supervision over 10
legal interns at one time provided a supervising lawyer
attends all adversarial proceedings conducted by the legal interns.
(4) A lawyer currently acting as a supervising lawyer may
be terminated as a supervising lawyer at the discretion of
the Board of Governors. When an interns supervisor is so
terminated, the intern shall cease performing any services
under this rule and shall cease holding himself or herself
out as a legal intern until written notice of a substitute
supervising lawyer, signed by the intern and by the new
and qualified supervising lawyer, is given to the Bar
Association and to the Supreme Court.
(5) The failure of a supervising lawyer, or lawyer acting
as a supervising lawyer, to provide adequate supervision
or to comply with the duties set forth in this rule shall
be grounds for disciplinary action pursuant to the Rules
for Enforcement of Lawyer Conduct.
(6) For purposes of the attorney-client privilege, an
intern shall be considered a subordinate of the lawyer
providing supervision for the intern.
(7) For purposes of the provisions of this rule which
permit a lawyer from the same office as the supervising
lawyer to sign documents or be present with a legal intern
during court appearances, the lawyer so acting must be one
who meets all of the qualifications for becoming a
supervising lawyer under this rule.
(e) Term of Limited License. A limited license as a legal
intern shall be valid, unless revoked, for a period of not more
than 24 consecutive months, provided that a person shall not
serve as a legal intern more than 12 months after graduation
from law school.
(1) The approval given to a law student by the law school
dean or the dean's designee or to a law clerk by the tutor
may be withdrawn at any time by mailing notice to that
effect to the Clerk of the Supreme Court and to the Bar
Association, and shall be withdrawn if the student ceases
to be duly enrolled as a student prior to graduation or
ceases to be in good academic standing or if the law clerk
ceases to comply with rule 6.
(2) A limited license is granted at the sufferance of the
Supreme Court and may be revoked at any time upon the
courts own motion, or upon the motion of the Board of
Governors, in either case with or without cause.
(3) An intern shall immediately cease performing any
services under this rule and shall cease holding himself
or herself out as a legal intern (i) upon termination for
any reason of the interns limited license under this rule;
or (ii) upon the resignation of the interns supervising
lawyer; or (iii) upon the suspension or termination by the
Board of Governors of the supervising lawyers status as
supervising lawyer; or (iv) upon the withdrawal of
approval of the intern pursuant to this rule.
[Adopted effective Jun 4, 1970; amended effective May 21, 1971;
February 29, 1972; December 31, 1973; December 31, 1976;
January 1, 1977; January 1, 1979; January 1, 1981; November 2, 1981;
September 1, 1984; October 1, 1985; October 11, 1985;
November 29, 1991; September 1, 1994; June 2, 1998; October 1, 2002.]
RULE 10
(RESERVED)
[Originally adopted effective March 10, 1971; text deleted and
rule number reserved effective September 1, 1984.]
RULE 11
CONTINUING LEGAL EDUCATION
11.1 Purpose
11.2 Educational Requirement
11.3 Board of Mandatory Continuing Legal Education
11.4 Powers of the MCLE Board
11.5 Expenses of the MCLE Board
11.6 Reports and Enforcement
11.7 Confidentiality
Regulations of the Washington State Board of Continuing Legal Education (in Word Format)
RULE 11.1
PURPOSE
It is of primary importance to the members of the Washington State Bar
Association (referred to in these rules as the Bar Association) and to the
public that lawyers continue their legal education throughout the period of
their active practice of law. These rules state the minimum requirements for
continuing legal education.
[Adopted effective January 1, 1977; amended effective May 2, 2000; January 1, 2009.]
RULE 11.2
EDUCATIONAL REQUIREMENT
(a) Minimum Requirement. Each active member of the Bar Association, and
other lawyers who are required by the APRs to complete continuing legal
education credits, must complete a minimum of 45 credit hours of
accredited legal education (as provided in APR 11.4) by December 31 of the
last year of the lawyer's three-year reporting period as assigned by the
Bar Association. Specific requirements are the following, and are
described in Appendix APR 11 - Regulations of the Washington State Board
of Mandatory Continuing Legal Education
(1) A lawyer may earn all of the required credit hours, and must
earn at least half of the required credits, as live credits, as
described in Regulation 103(b) of Appendix APR 11.
(2) A lawyer must earn a minimum of six of the required 45 credit
hours of accredited legal education in the area of ethics, as that is
defined in Regulation 101(g) of Appendix APR 11.
(3) A lawyer may earn a maximum of one-half of the required credit
hours for any reporting period through self-study, as defined in
Regulation 103(h) of Appendix APR 11.
(4) A lawyer may earn a maximum of six credit hours annually through
pro bono training and service carried out strictly in compliance with
Regulation 103(f) of Appendix APR 11.
(5) A lawyer may earn a maximum of six of the required credit hours
for any reporting period for participation in law school
competitions, moot court, or mock trials programs, as described in
Regulation 103(g) of Appendix APR 11.
(b) New Admission. Newly admitted members must complete 45 continuing
legal education credits during the four full calendar years after the
member's date of admission. Following the new admission period, the
member shall complete 45 credits every three years as required by APR 11.2(a).
(c) Carryover of excess earned credits. If a member completes more than
the required credits for any one reporting period, up to 15 of the excess
credits may be carried forward and applied to that member's education
requirement for the next reporting period. Of the 15 credit hours that
may be carried forward to the next reporting period, pursuant to sections
(a) and (b) of this rule:
(1) A maximum of two credit hours may be applied toward the ethics
requirement; and
(2) A maximum of five credit hours may be applied to self-study credits.
[Amended effective September 1, 1992; September 1, 1995; May 2, 2000; January 1, 2009.]
RULE 11.3
BOARD OF MANDATORY CONTINUING LEGAL EDUCATION
There is hereby established a Board of Mandatory Continuing Legal
Education (the MCLE Board) consisting of seven members. Six of the members of
the MCLE Board must be active members of the Bar Association. The seventh
member shall not be a member of the Bar Association. The Supreme Court shall
designate a chairperson of the MCLE Board, who shall serve at the pleasure of
the Court. The members of the MCLE Board shall be nominated by the Board of
Governors of the Bar Association and appointed by the Supreme Court.
Appointments shall be staggered for a 3-year term. No member may serve more
than two consecutive terms. Terms shall end on September 30 of the applicable year.
[Adopted effective January 1, 1977; amended effective May 2, 2000; January 1, 2009.]
RULE 11.4
POWERS OF THE MCLE BOARD
The MCLE Board shall:
(a) Accredit and determine the number of credit hours to be allowed for
all or portions of individual courses that satisfy the education
requirements of these rules and Appendix APR 11 Regulations;
(b) Accredit all or portions of the entire legal educational program of a
given organization that satisfy the education requirements of these rules
and Appendix APR 11 Regulations;
(c) Adopt regulations pertinent to these powers subject to the approval
of the Board of Governors and the Supreme Court;
(d) Waive or modify individual compliance with the educational or time
requirements of these rules upon a showing of undue hardship, age, or
infirmity;
(e) Set and adjust fees and fines for failure to comply with these rules
and to defray the reasonably necessary costs of administering these rules
with the approval of the Board of Governors; and
(f) Waive or reduce fees or fines on a proper showing by the petitioner.
[Adopted effective January 1, 1977; amended effective May 2, 2000; January 1, 2009.]
RULE 11.5
EXPENSES OF THE MCLE BOARD
Members of the MCLE Board shall not be compensated for their services,
but actual and necessary expenses incurred in the performance of their duties
shall be reimbursed by the Bar Association in a manner consistent with the Bar
Association's reimbursement of its committee members. The Bar Association shall
furnish the MCLE Board with the necessary staff to carry out its duties. The
MCLE Board, directly or through the staff provided, annually shall submit a
budget to the Bar Association, which shall be subject to approval by the Board
of Governors.
[Amended effective May 2, 2000; January 1, 2009.]
RULE 11.6
REPORTS AND ENFORCEMENT
(a) Reporting and Other Activities.
(1) Sponsor Reports. The sponsor of each approved program (or each
program for which approval is sought) must make available attendance
reports to be completed by those lawyers in attendance to show the
actual time spent by each lawyer in attendance. The form of the
reports will be determined by the MCLE Board. The sponsor must send
a report, consisting of a compilation of the information contained in
these forms, to the Bar Association not later than 30 days after
conclusion of the program.
(2) Other Activities. Consistent with the provisions of Appendix
APR 11 Regulations, in the case of some programs for which approval
has not been sought or obtained by the sponsor, or for other
activities which may qualify for CLE credit under these rules,
individual lawyers may apply for credit by direct application to the
MCLE Board, using the form or forms specified by the MCLE Board for
that purpose.
(3) Member Credit Status Reports.
(A) Not later than July 1 of each year, the Bar Association
shall advise each active member and other lawyers required to
report in the current reporting cycle of the number of earned
credit hours reflected in that lawyer's records with the Bar Association.
(i) If the lawyers do not request changes to their records
within forty-five days of the mailing of the report, the
reported credits will be deemed correct.
(ii) After 45 days, the records may be changed upon a
showing of good cause.
(B) By not later than December 15 of each year, a similar
report shall be provided to all active members and other lawyers
required to report continuing education credits.
(b) Compliance Certification. Each active member or other lawyer
required to complete and report continuing legal education requirements
must submit an MCLE compliance certification form by February 1 following
the end of the lawyer's three-year reporting period or as approved by the
MCLE Board pursuant to rule 11.4. If a lawyer has not completed the
minimum education requirement for that lawyer's reporting period, the
lawyer may complete and return to the MCLE Board a petition, which shall
be accompanied by a declaration(s) or affidavit(s) in support of the
request, for an extension of time to complete the requirements. If the
petition is approved, the lawyer shall make up the deficiency, file a
supplemental report with the Bar Association, and pay a late filing fee by
the date set forth in the agreement or order extending the time for compliance.
(c) Delinquency. Any lawyer required to do so who has not complied by
the certification deadline, or by the date set forth in an agreement or
order extending the time for compliance, may be ordered suspended from the
practice of law by the Supreme Court.
(1) Pendency Notice. The MCLE Board shall send a written notice of
the pendency of suspension proceedings by certified mail to any
lawyer who has not complied with either the educational or
certification requirements of APR 11 and the Appendix APR 11
Regulations by the certification deadline for that lawyer's reporting
period or extended deadline granted by the MCLE Board. It will be
sent to the lawyer's address of record with the Bar Association. The
notice shall advise the member of the pendency of suspension
proceedings and state that the MCLE Board will recommend suspension
of the lawyer's license to practice law unless the lawyer becomes
compliant or completes and returns to the MCLE Board a petition for
extension of time, exemption from compliance, or ruling of complete
compliance as set forth below. The MCLE Board shall include with the
pendency notice a copy of the form of petition to be used.
(2) Petition for extension, waiver, modification or finding of compliance.
(A) Timing. Within 10 days of receipt of the pendency notice,
a lawyer may complete and return to the MCLE Board a petition
requesting an extension of time, a waiver of compliance,
modifications to the requirements, or ruling by the MCLE Board
of compliance with the standard requirements.
(B) Supporting documents. The petition may be accompanied by
supporting affidavit(s) or declaration(s).
(3) No timely petition filed; suspension recommendation. Unless
such petition is filed, the noncompliance is deemed agreed. The MCLE
Board shall report the lawyer's noncompliance to the Supreme Court
with its recommendations for appropriate action. The Supreme Court
shall enter such order, as it deems appropriate. The provisions of
RAP 17.4 and RAP 17.5 shall apply to any motion for reconsideration
of such order.
(4) Petition Filed. If such petition is filed, in its consideration
of the petition, the MCLE Board shall consider factors of undue
hardship, age, or disability. One of the following shall result from
consideration of a petition:
(A) Approval without hearing. The MCLE Board may, in its
discretion, approve the petition without hearing, or
(B) Agreement with lawyer. The MCLE Board may enter into
agreement on terms with such lawyer as to time and requirements
for achieving compliance with the provisions of APR 11.2(a) and
APR 11.6(b) or
(C) Hearing on petition. If the MCLE Board does not approve such
petition or enter into an agreement with terms, the MCLE Board
(or a subcommittee of one or more MCLE Board members) shall hold
a hearing upon the petition.
(i) The Board shall give the lawyer at least 10 days
notice of the time and place thereof.
(ii) Testimony taken at the hearing shall be under oath,
and an audio or stenographic record will be made at the
request and expense of the lawyer. The oath shall be
administered by the chairperson of the MCLE Board or the
chairperson of the subcommittee.
(iii) For good cause shown the MCLE Board may rule that
the lawyer has substantially complied with these rules for
the reporting period in question or, if he or she has not
done so, it may grant the lawyer an extension of time
within which to comply upon terms deems appropriate.
(iv) For each hearing, the MCLE Board shall enter written
findings of fact and an appropriate order. The MCLE Board
shall mail a copy of the findings and order forthwith to
the lawyer at the address on file with the Bar Association.
(v) The MCLE Board's order is final unless within 10 days
from the date thereof the lawyer files a written notice of
appeal with the Supreme Court and serves a copy of on the
Washington State Bar Association. The lawyer shall pay to
the Clerk of the Supreme Court a docket fee of $250.00.
(d) Review by the Supreme Court. Within 15 days of filing a notice with
the Supreme Court for review of the MCLE Board's findings and order, after
a non-compliance petition hearing, the lawyer shall cause the record or a
narrative report in compliance with RAP 9.3 to be transcribed and filed
with the Bar Association.
(1) The MCLE Board chairperson or chairperson of the subcommittee
shall certify that any such record or narrative report of proceedings
contains a fair and accurate report of the occurrences in and
evidence introduced in the cause.
(2) The MCLE Board shall prepare a transcript of all orders,
findings, and other documents pertinent to the proceeding, before the
MCLE Board, which must be certified by the MCLE Board chairperson or
chairperson of the subcommittee.
(3) The MCLE Board shall then file promptly with the Clerk of the
Supreme Court the record or narrative report of proceedings and the
transcripts pertinent to the proceedings before the MCLE Board.
(4) The matter shall be heard in the Supreme Court pursuant to
procedures established by order of the Court.
(e) Time. The times set forth in this rule for filing notices of appeal
are jurisdictional. The Supreme Court, as to appeals pending before it,
may, for good cause shown:
(1) Extend the time for the filing or certification of said record
or narrative report of proceedings and transcripts; or
(2) Dismiss the appeal for failure to prosecute the same diligently.
(f) Costs. If the lawyer prevails in his or her appeal before the Supreme
Court, the lawyer shall be awarded costs against the Bar Association in an
amount equal to his or her reasonable expenditures for the preparation of
the record or narrative report of proceedings.
(g) Change of Status. Once a lawyer has been ordered suspended from
practice for noncompliance with these rules, the lawyer affected must
comply with the then applicable regulations of the MCLE Board and the WSBA
Bylaws in order to return to active status.
[Amended effective May 14, 1982; September 1, 1992; January 1, 2001; January 1, 2009.]
RULE 11.7
CONFIDENTIALITY
The files and records of the Bar Association, as they may relate to or
arise out of any failure of a member of the Association, or other lawyers, to
satisfy these continuing legal education requirements, shall be deemed
confidential and shall not be disclosed except in furtherance of its duties, or
upon request of the lawyer affected, or pursuant to a proper subpoena duces
tecum, or as directed by this Court. The records and information contained
therein should not be available to any sponsoring organization, including the
Continuing Legal Education Department of the Bar Association. In any matter
referred to the Supreme Court under these rules, the file, record, briefs, and
arguments shall not be subject to this confidentiality rule.
[Adopted effective January 1, 1977; amended effective May 14, 1982; May 2, 2000; January 1, 2009.]
REGS REGULATIONS OF THE WASHINGTON STATE CONTINUING LEGAL EDUCATION BOARD (IN WORD FORMAT) The contents of this item are only available on-line. REGS REGULATIONS OF THE WASHINGTON STATE CONTINUING LEGAL EDUCATION BOARD (IN PDF FORMAT) The contents of this item are only available on-line.
ADMISSION TO PRACTICE RULES
RULE 12.
LIMITED PRACTICE RULE FOR LIMITED PRACTICE OFFICERS
(a) Purpose. The purpose of this rule is to authorize certain lay persons to
select, prepare and complete legal documents incident to the closing of real
estate and personal property transactions and to prescribe the conditions of
and limitations upon such activities.
(b) Limited Practice Board.
(1) Establishment. There is hereby established a Limited Practice Board
(referred to herein as the "Board") consisting of nine members to be appointed
by the Supreme Court of the State of Washington. Not less than four of the
members of the Board must be admitted to the practice of law in the State of
Washington. Four of the members of the Board shall be business
representatives, one each of the following four industries: escrow, lending,
title insurance, and real estate. Appointments shall be for 4-year terms. No
member may serve more than two consecutive terms. Terms shall end on December
31 of the applicable year. The Supreme Court shall designate one of the
members of the Board as chairperson.
(2) Duties and Powers.
(i) Applications. The Board shall accept and process applications for
certification under this rule.
(ii) Examination. The Board shall conduct the examination for certification
required by this rule. The examination shall consist of such questions as
the Board may select on such subjects as may be listed by the Board and
approved by the Supreme Court. The Board shall establish the number of
examinations to be given each year and the dates of the examinations.
(iii) Investigation and recommendation for admission. The Board shall notify
each applicant of the results of the examination and shall recommend to the
Supreme Court the admission or rejection of each applicant who passes the
examination. The Supreme Court shall enter an order admitting to limited
practice those applicants it deems qualified, conditioned upon each applicant
taking an oath that he or she will comply with this rule and paying to the
Board the annual fee for the current year. Upon the entry of such order, the
taking and filing of the oath, and payment of the annual fee, an applicant
shall be enrolled as a limited practice officer and shall be entitled to
perform those services permitted by this rule. The oath must be taken before
a court of record in the State of Washington.
(iv) Education. The Board shall approve individual courses and may accredit
all or portions of the entire educational program of a given organization
which, in the Board's judgment, will satisfy the educational requirement of
these rules. It shall determine the number of credit hours to be allowed for
each such course. It shall encourage the offering of such courses and
programs by established organizations, whether offered within or outside this state.
(v) Grievances and discipline. The Board shall adopt hearing and appeal
procedures and shall hear complaints of persons aggrieved by the failure of
limited practice officers to comply with the requirements of this rule and of
the Limited Practice Officer Rules of Professional Conduct. Upon a finding
by the Board that a limited practice officer has failed to comply in any
material manner with the requirements of this rule, the Board shall take such
action as may be appropriate to the degree of the violation, considering also
the number of violations and the previous disciplinary record of the limited
practice officer. Disciplinary action may include admonitions, reprimands,
and recommendations to the Supreme Court for the suspension or revocation of
the limited practice officer's certification.
(vi) Investigation. Upon the receipt of a complaint that a limited practice
officer has violated the provisions of this rule and in other appropriate
circumstances, the Board may investigate the conduct of the limited practice
officer to determine whether the limited practice officer has violated the
requirements, conditions or limitations imposed by this rule.
(vii) Approval of forms. The Board shall approve standard forms for use by
limited practice officers in the performance of services authorized by this rule.
(viii) Fees. The Board shall establish and collect examination and annual
fees in such amounts as are necessary to carry out the duties and
responsibilities of the Board.
(ix) Regulations. The Board shall propose regulations to implement the
provisions of this rule for adoption by the Supreme Court.
(3) Expenses of the Board. Members of the Board shall not be compensated for
their services. For their actual and necessary expenses incurred in the
performance of their duties, they shall be reimbursed by the Board in a manner
consistent with its rules. All such expenses shall be paid pursuant to a
budget submitted to and approved by the Washington State Bar Association on an
annual basis. Funds accumulated from examination fees, annual fees, and other
revenues shall be used to defray all expenses of the Board. The administrative
support to the Board shall be provided by the Washington State Bar Association.
(c) Certification Requirements. An applicant for certification as a limited
practice officer shall:
(1) Age. Be at least 18 years of age.
(2) Moral Character. Be of good moral character.
(3) Examination. Satisfy the examination requirements established by the Board.
(4) Oath. Execute under oath and file with the Board two copies of his or her
application, in such form as may be required by the Board. Additional proof of
any fact stated in the application may be required by the Board. In the event
of the failure or refusal of an applicant to furnish any information or proof,
or to answer any interrogatories of the Board pertinent to the pending
application, the Board may deny the application.
(5) Examination Fee. Pay, upon the filing of an application, the examination fee.
(d) Scope of Practice Authorized by Limited Practice Rule. Notwithstanding any
provision of any other rule to the contrary, a person certified as a limited
practice officer under this rule may select, prepare and complete documents in
a form previously approved by the Board for use by others in, or in
anticipation of, closing a loan, extension of credit, sale or other transfer of
interest in real or personal property. Such documents shall be limited to
deeds, promissory notes, guaranties, deeds of trust, reconveyances, mortgages,
satisfactions, security agreements, releases, Uniform Commercial Code
documents, assignments, contracts, real estate excise tax affidavits, bills of
sale, and powers of attorney. Other documents may be from time to time
approved by the Board.
(e) Conditions Under Which Limited Practice Officers May Prepare and Complete
Documents. Limited practice officers may render services authorized by this
rule only under the following conditions and with the following limitations:
(1) Agreement of the Clients. Prior to the performance of the services, all
clients to the transaction shall have agreed in writing to the basic terms and
conditions of the transaction. In the case of a power of attorney prepared in
anticipation of a transaction, the principal(s) and attorney(s)-in-fact shall
have provided the limited practice officer consistent written instructions for
the preparation of the power of attorney.
(2) Disclosures to the Clients. The limited practice officer shall advise the
clients of the limitations of the services rendered pursuant to this rule and
shall further advise them in writing:
(i) that the limited practice officer is not acting as the advocate or
representative of either of the clients;
(ii) that the documents prepared by the limited practice officer will affect
the legal rights of the clients;
(iii) that the clients' interests in the documents may differ;
(iv) that the clients have a right to be represented by lawyers of their own
selection; and
(v) that the limited practice officer cannot give legal advice as to the
manner in which the documents affect the clients.
The written disclosure must particularly identify the documents selected,
prepared, and/or completed by the limited practice officer and must include the
name, signature and number of the limited practice officer.
(f) Continuing Certification Requirements.
(1) Continuing Education. Each limited practice officer must complete a
minimum number of credit hours of approved or accredited education, as
prescribed by regulation of the Board, during each calendar year in courses
certified by the Board to be appropriate for study by clo limited practice
officers providing services pursuant to this rule; provided, that the limited
practice officer shall not be required to comply with this subsection during
the calendar year in which he or she is initially certified.
(2) Financial Responsibility. Each limited practice officer or employer
thereof shall show proof of ability to respond in damages resulting from his or
her acts or omissions in the performance of services permitted by this rule.
The proof of financial responsibility shall be in such form and in such amount
as the Board may by regulation prescribe.
(3) Annual Fee. Each limited practice officer must pay the annual fee
established by the Board.
(g) Existing Law Unchanged. This rule shall in no way expand, narrow or affect
existing law in the following areas:
(1) The fiduciary relationship between a limited practice officer and his or
her customers or clients;
(2) Conflicts of interest that may arise between the limited practice officer
and a client or customer;
(3) The right to act as one's own attorney under the pro se exception to the
unauthorized practice of law including but not limited to the right of a lender
to prepare documents conveying or granting title to property in which it is
taking a security interest;
(4) The lack of authority of a limited practice officer to give legal advice
without being licensed to practice law;
(5) The standard of care which a limited practice officer must practice when
carrying out the functions permitted by this rule.
(h) Treatment of Funds Received Incident to the Closing of Real or Personal
Property Transactions. Persons admitted to practice under this rule shall
comply with LPORPC 1.12A and B regarding the manner in which they identify,
maintain and disburse funds received incidental to the closing of real and
personal property transactions, unless they are acting pursuant to APR 12(g)(3).
Comment
[1] Comment Re: APR 12(d)
Powers of attorney authorizing a person to negotiate and sign documents in
anticipation of, or in the closing of, a transaction are included in the
documents limited practice officers are authorized to prepare. Such documents
may include, but are not limited to, purchase and sale agreements for real or
personal property, loan agreements, and letters of intent.
[2] Comment Re: LPO Professional Standard Of Care
The purpose of this comment is to discuss the legal standard of care to which a
limited practice officer is subject, while also clarifying the limited duties
of a limited practice officer compared to an attorney when selecting and
preparing legal documents and to show the greater breadth of a lawyer's duties
and services which a party may not expect when engaging a limited practice officer.
Generally, when a non-lawyer selects and prepares a legal document for another,
the non-lawyer engages in the unauthorized practice of law. Despite this, the
non-lawyer (including a licensed limited practice officer) will be held to the
standard of a lawyer: "to comply with the duty of care, an attorney must
exercise the degree of care, skill, diligence, and knowledge commonly possessed
and exercised by a reasonable, careful and prudent lawyer in the practice of
law in this jurisdiction." Hizey v. Carpenter, 119 Wn.2d 251, 261, 830 P.2d
246 (1992). However, when selecting and preparing approved forms a limited
practice officer, though having a limited license to practice law as defined
and limited in APR 12, will not be authorized nor charged with many of the
duties of a lawyer. Except as provided otherwise in APR 12 rules and
regulations, these include the duty to investigate legal matters, to form legal
opinions (including but not limited to the capacity of an individual to sign
for an entity or whether a legal document is effective), to give legal advice
(including advice on how a legal document affects the rights or duties of a
party), or to consult with a party on the advisability of a transaction. See
also LPORPC 1.1, Competence, and LPORPC 1.3, Communication.
[Adopted effective January 21, 1983; amended effective October 28, 1983;
September 13, 1985; December 9, 1995; July 1, 2002; January 1, 2009.]
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APR 13
SIGNING OF PLEADINGS AND OTHER PAPERS; ADDRESS OF
RECORD; ELECTRONIC MAIL ADDRESS; NOTICE OF CHANGE OF
ADDRESS, TELEPHONE NUMBER, OR NAME
(a) Signing of Pleadings and Other Papers. All
pleadings and other papers signed by an attorney and
filed with a court shall include the attorney's
Washington State Bar Association membership number in
the signature block. The law department of a
municipality, county, or state, public defender
organization or law firm is authorized to make an
application to the Administrative Office of the Courts
for an office identification number. An office
identification number may be assigned by the
Administrative Office of the Courts upon a showing that
it will facilitate the process of electronic
notification. If an office identification number is
granted, it shall appear with the attorney's Washington
State Bar Association membership number in the signature block.
(b) Address of Record; Change of Address. An
attorney must advise the Washington State Bar
Association of a current mailing address and telephone
number. The mailing Address shall be the attorney's
address of record. An attorney whose mailing address or
telephone number changes shall, within 10 days after
the change, notify the Executive Director of the
Washington State Bar Association, who shall forward
changes weekly to the Office of the Clerk of the
Supreme Court for entry into the state computer system.
The notice shall be in a form acceptable to the Bar
Association and shall include (1) the attorney's full
name, (2) the attorney's Washington State Bar
Association membership number, (3) the previous address
and telephone number, clearly identified as such, (4)
the new address and telephone number, clearly
identified as such, and (5) the effective date of the
change. The courts of this state may rely on the
address information contained in the state computer
system in issuing notices in pending actions.
(c) Electronic mail address: An attorney should
advise the Washington State Bar Association of a
current business electronic mail address if one exists.
An attorney whose business electronic mail address
changes should, within 10 days after the change, notify
the Executive Director of the Washington State Bar
Association, who shall forward changes weekly to the
Office of the Clerk of the Supreme Court for entry into
the state computer system. Use of electronic mail
addresses for court notice, service and filing must
comply with GR 30.
(d) Change of Name. An attorney whose name changes
shall, within 10 days after the change, notify the
Executive Director of the Washington State Bar
Association, who shall forward changes weekly to the
Office of the Clerk of the Supreme Court for entry into
the state computer system. The notice shall be in a
form acceptable to the Bar Association and shall
contain (1) the full previous name, clearly identified
as such, (2) the full new name, clearly identified as
such, (3) the attorney's Washington State Bar
Association membership number, and (4) the effective
date of the change.
(e) Requirements of Local and Other Court Rules Not
Affected. The responsibility of a party or an attorney
to keep the court and other parties and attorneys
informed of the party's or attorney's correct name and
current address, as may be required by local or other
court rule, is not affected by this rule.
[Adopted effective September 1, 1990; amended effective October 30, 2001.]
APR 14
LIMITED PRACTICE RULE FOR FOREIGN
LAW CONSULTANTS
(a) Purpose. The purpose of this rule is to authorize lawyers from a
foreign country to advise or consult about foreign law and to
prescribe the conditions and limitations upon such limited practice.
(b) Qualifications.
(1) To qualify as a Foreign Law Consultant applicant for admission
to the limited practice of law in the State of Washington as provided
in these rules, a person must:
(i) Present satisfactory proof of both admission to the practice
of law, together with current good standing, in a foreign
jurisdiction, and active legal experience as a lawyer or counselor at
law or the equivalent in a foreign jurisdiction for at least 5 of the
7 years immediately preceding the application; and
(ii) Possess the good moral character and fitness requisite for a
member of the Bar of the State of Washington; and
(iii) Execute under oath and file with the Bar Association two
copies of an application, in such form as may be required by the Board
of Governors; and
(iv) File with the application a certificate from the authority
in such foreign country having final jurisdiction over professional
discipline, certifying as to the applicants admission to practice, and
the date thereof, and as to the good standing of such lawyer or
counselor at law or the equivalent, together with a duly authenticated
English translation of such certificate, if it is not in English; and
(v) File with the application a letter of recommendation from one
of the members of the executive body of such authority or from one of
the judges of the highest law court or courts of original jurisdiction
of such foreign country, together with a duly authenticated English
translation of such letter, if it is not in English; and
(vi) Provide with the application such other evidence of the
applicants educational and professional qualifications, good moral
character and fitness and compliance with the requirements of this
rule as the Board of Governors may require; and
(vii) Pay upon the filing of the application a fee equal to that
required pursuant to rule 3(d)(2) to be paid by an attorney applicant
to take the bar examination.
(2) Upon a showing that strict compliance with the provisions of
subsections (b)(1)(iv) or (b)(1)(v) would cause the applicant
unnecessary hardship, the Board of Governors may at its discretion
waive or vary the application of such provisions and permit the
applicant to furnish other evidence in lieu thereof.
(c) Procedure. The Board of Governors shall approve or disapprove
applications for admission of Foreign Law Consultants. Additional
proof of any facts stated in the application may be required by the
Board. In the event of the failure or refusal of the applicant to
furnish any information or proof, or to answer any inquiry of the
Board pertinent to the pending application, the Board may deny the
application. Upon approval of the application by the Board of
Governors, the Board shall recommend to the Supreme Court the
admission of the applicant for the purposes herein stated. The Supreme
Court may enter an order admitting to practice those applicants it
deems qualified, conditioned upon such applicants:
(1) Taking and filing with the Clerk of the Supreme Court the Oath
of Attorney pursuant to rule 5; and
(2) Paying to the Bar Association its membership fee for the current
year in the maximum amount required of active members; and
(3) Filing with the Bar Association in writing his or her address in
the State of Washington, or the name and address of his or her
registered agent as provided in APR 5(e), together with a statement
that the applicant has read the Rules of Professional Conduct and
Rules for Enforcement of Lawyer Conduct, is familiar with their
contents and agrees to abide by them.
(d) Scope of Practice. A Foreign Law Consultant shall be authorized to
engage in the limited practice of law only as authorized by the
provisions of this rule. A Foreign Law Consultant may not:
(1) Appear for a person other than the Foreign Law Consultant as
lawyer in any court or before any magistrate or other judicial officer
in this state (other than upon admission for a particular action or
proceeding pursuant to rule 8(b)) or prepare pleadings or any other
papers or issue subpoenas in any action or proceeding brought in any
court or before any judicial officer of this state;
(2) Prepare any deed, mortgage, assignment, discharge, lease or any
other instrument affecting title to real estate located in the United
States; or
(3) Prepare any will or trust instrument affecting the disposition
on death of any property located in the United States and owned by a
resident thereof; or any instrument related to the administration of a
decedents estate in the United States; or
(4) Prepare any instrument with respect to the marital relations,
rights or duties of a resident of the United States, or the custody or
care of the children of such a resident; or
(5) Render legal advice on the law of the State of Washington, of
any other state or territory of the United States, of the District of
Columbia or of the United States (whether rendered incident to
preparation of legal instruments or otherwise) unless and to the
extent that the Foreign Law Consultant is admitted to practice law
before the highest court of such other jurisdiction; or
(6) In any way hold himself or herself out as a member of the Bar of
the State of Washington; or
(7) Use any title other than "Foreign Law Consultant", the firm
name, and/or authorized title used in the foreign country where the
Foreign Law Consultant is admitted to practice. In each case, such
title or name shall be used in conjunction with the name of such
foreign country.
(e) Regulatory Provisions. A Foreign Law Consultant shall be subject
to the Rules for Enforcement of Lawyer Conduct and the Rules of
Professional Conduct as adopted by the Supreme Court and to all other
laws and rules governing lawyers admitted to the Bar of this state,
except for the requirements of APR 11 relating to continuing legal
education. Jurisdiction shall continue whether or not the Consultant
retains the authority for the limited practice of law in this state,
and regardless of the residence of the Consultant.
(f) Continuing Requirements.
(1) Annual Fee. A Foreign Law Consultant shall pay to the Bar
Association its membership fee for the current year in the maximum
amount required of active members.
(2) Report. A Foreign Law Consultant shall promptly report to the
Bar Association any change in his or her status in any jurisdiction
where he or she is admitted to practice.
(g) Termination of License. A limited license is granted at the
sufferance of the Supreme Court and may be revoked at any time upon
the courts own motion, or upon the motion of the Board of Governors,
with or without cause, including failure to comply with the terms of
this rule.
(h) Reciprocity. A Foreign Law Consultant applicant shall demonstrate
that the country or jurisdiction from which he or she applies does not
impose, by any law, rule or regulation, any requirements, limitations,
restrictions or conditions upon the admission of members of the
Washington State Bar Association as Foreign Law Consultants in that
foreign country or jurisdiction which are significantly more limiting
or restrictive than the requirements of this rule. The Supreme Court
may deny admission to a Foreign Law Consultant applicant upon that
basis, or may impose similar limitations, restrictions or conditions
upon foreign legal consultant applicants from that foreign country or jurisdiction.
[Adopted effective September 1, 1990; amended effective December 28, 1999;
October 1, 2002; November 25, 2003; January 2, 2007.]
APR 15
LAWYERS' FUND FOR CLIENT PROTECTION
(a) Purpose. The purpose of this rule is to create a Lawyers' Fund for
Client Protection, to be maintained and administered as a trust by the
Washington State Bar Association (WSBA), in order to promote public
confidence in the administration of justice and the integrity of the legal profession.
(b) Establishment. There is established the Lawyers' Fund for Client
Protection (Fund). The Fund may be used for the purpose of relieving or
mitigating a pecuniary loss sustained by any client by reason of the
dishonesty of, or failure to account for money or property entrusted to,
any member of the WSBA as a result of or directly related to the member's
practice of law (as defined in GR 24) or while acting as a fiduciary in a
matter directly related to the member's practice of law. The Fund may also
be used to relieve or mitigate like loss sustained by persons by reason of
similar acts of an individual who was at one time a member of the WSBA but
who was, at the time of the act complained of, under court ordered
suspension. The Fund shall not be used for the purpose of relieving any
pecuniary loss resulting from an attorney's negligent performance of
services or for acts performed after a member is disbarred. Payments from
the Fund shall be considered gifts to the recipients and shall not be
considered entitlements.
(c) Funding. The Supreme Court may provide for funding by assessment of
members of the WSBA in amounts determined by the court upon the
recommendation of the Board of Governors of the WSBA.
(d) Enforcement. Failure to pay any fee assessed by the court on or before
the date specified by the court shall be a cause for suspension from
practice until payment has been made.
(e) Restitution. A lawyer whose conduct results in payment to an applicant
shall be liable to the Fund for restitution.
(f) Administration. The Fund shall be maintained and administered by the
Board of Governors acting as trustees for the Fund. The Board shall
appoint the Lawyers' Fund for Client Protection Board (Client Protection
Board) to administer the Fund pursuant to rules adopted by the Board of
Governors and approved by the Supreme Court. The Client Protection Board
shall consist of 11 lawyers and 2 nonlawyers, who will be appointed to
serve staggered 3-year terms.
(g) Subpoenas. A lawyer member of the Client Protection Board, or counsel
for the Washington State Bar Association assigned to the Client Protection
Board, shall have the power to issue subpoenas to compel the attendance of
the lawyer being investigated or of a witness, or the production of books,
or documents, or other evidence, at the taking of a deposition. A
subpoena issued pursuant to this rule shall indicate on its face that the
subpoena is issued in connection with an investigation under this rule.
Subpoenas shall be served in the same manner as in civil cases in the
superior court.
(h) Reports. The Board of Governors, in consultation with the Client
Protection Board, shall file with the Supreme Court a full report on the
activities and finances of the Fund at least annually and may make other
reports to the court as necessary.
(i) Communications to the Association: Communications to the Association,
Board of Governors (Trustees), Client Protection Board, Association staff,
or any other individual acting under the authority of these rules, are
absolutely privileged, and no lawsuit predicated thereon may be instituted
against any applicant or other person providing information.
[Adopted effective September 1, 1994; amended effective October 1, 2002;
January 2, 2008; January 13, 2009; December 1, 2009.]
Lawyers' Fund for Client Protection
(APR 15)
Procedural Rules
RULE 1. PURPOSE
A. The purpose of these rules is to establish procedures pursuant to Rule 15
of the Admission to Practice Rules, to maintain and administer a Lawyers'
Fund for Client Protection established as a trust by the Washington State
Bar Association (WSBA), in order to promote public confidence in the
administration of justice and the integrity of the legal profession.
B. Funds accruing and appropriated to the Fund may be used for the purpose of
relieving or mitigating a pecuniary loss sustained by any person by reason
of the dishonesty of, or failure to account for money or property
entrusted to, any member of the WSBA as a result of or directly related to
the member's practice of law (as defined in GR 24), or while acting as a
fiduciary in a matter directly related to the member's practice of law.
Such funds may also, through the Fund, be used to relieve or mitigate like
losses sustained by persons by reason of similar acts of an individual who
was at one time a member of the WSBA but who was at the time of the act
complained of under a court ordered suspension.
C. The Fund shall not be used for the purpose of relieving any pecuniary loss
resulting from an attorney's negligent performance of services.
RULE 2. ESTABLISHMENT OF THE FUND.
A. Trustees. Pursuant to APR 15, the members of the Board of Governors of the
WSBA will serve during their terms of office as Trustees (Trustees) for
the Fund to hold funds assessed by the Supreme Court for the purposes of
the Fund. The WSBA President will serve as President of the Trustees.
B. Funding. The Trustees may recommend to the Supreme Court that it order an
annual assessment of all active members of the WSBA in an amount
recommended by the Trustees to be held by them in trust for the purposes
of the Fund.
C. Enforcement. Any active member failing to pay any annual assessment on
or before the date set for payment by the Supreme Court shall, after 60
days written notice sent to his or her last known business address as
shown in the records of the WSBA, be ordered suspended from the practice
of law until the assessment is paid.
RULE 3. LAWYERS' FUND FOR CLIENT PROTECTION BOARD
A. Membership. The Lawyers Fund for Client Protection Board shall consist
of 11 lawyers and 2 nonlawyers appointed by the Trustees for terms not
exceeding 3 years each.
B. Vacancies. Vacancies on the Board shall be filled by appointment of the Trustees.
C. Officers. The Trustees shall appoint a chairperson of the Board for a term
of one-year or until a successor is appointed. The secretary of the Board
shall be a staff member of the WSBA assigned to the Board by the Executive
Director of the WSBA.
D. Meetings. The Board shall meet not less than once per year upon call of
the chairperson, or at the request of the staff member of the WSBA, who
shall not be entitled to vote on Board matters.
E. Quorum. A majority of the Board members, excluding the secretary, shall
constitute a quorum.
F. Record of Meetings. The secretary shall maintain minutes of the Board
deliberations and recommendations.
G. Authority and Duties of Board. The Board shall have the power and authority to:
(1) Consider claims for reimbursement of pecuniary loss and make a report and
recommendation regarding payment or nonpayment on any claim to the Trustees.
(2) Provide a full report of its activities annually to the Supreme Court
and the Trustees and to make other reports and to publicize its
activities as the Court or Trustees may deem advisable.
H. Conflict of Interest.
(1) A Board member who has or has had a lawyer/client relationship or
financial relationship with an applicant or lawyer who is the subject
of an application shall not participate in the investigation or
deliberation of an application involving that applicant or lawyer.
(2) A Board member with a past or present relationship, other than that
as provided in section (1), with an applicant or lawyer who is the
subject of an application, shall disclose such relationship to the
Board and, if the Board deems it appropriate, that member shall not
participate in any action relating to that application.
RULE 4. APPLICATIONS FOR PAYMENT
A. Application Form. All applications for payment through the Lawyers Fund
for Client Protection shall be made by submitting an application on a form
approved by the Board, and shall include all information requested on the form.
B. Disciplinary Grievances. Before an application for payment from the Fund
will be considered, the applicant must also file a disciplinary grievance
with the Office of Disciplinary Counsel, unless the lawyer is disbarred or
deceased, or unless the Board in its discretion finds that no disciplinary
grievance is required.
C. Notice by Office of Disciplinary Counsel. Any person who has filed a
disciplinary grievance with the WSBA alleging a loss occasioned by the
dishonest conduct of a lawyer should be provided with a Lawyers Fund for
Client Protection application form and given information about the Fund.
RULE 5. ELIGIBLE CLAIMS
A. Eligibility. To be eligible for payment from the Fund, the loss must be
caused by the dishonest conduct of a lawyer or the failure to account for money
or property entrusted to a lawyer as a result of or directly related to the
lawyer's practice of law (as defined in GR 24). The loss must also have arisen
out of and by reason of a client-lawyer relationship or a fiduciary
relationship in a matter directly related to the lawyer's practice of law.
B. Time Limitations. Any application must be made within three years from
the date on which discovery of the loss was made or reasonably should have
been made by the applicant, and in no event more than three years from the
date the lawyer dies, is disbarred, is disciplined for misappropriation of
funds, or is criminally convicted for matters relating to the applicant's
loss, provided that the Board or Trustees in their discretion may waive
any limitations period for excusable neglect or other good cause.
C. Dishonest Conduct. As used in these rules, "dishonest conduct" or
"dishonesty" means wrongful acts committed by a lawyer in the nature of
theft or embezzlement of money or the wrongful taking or conversion of
money, property or other thing of value, including but not limited to
refusal to refund unearned fees or expenses as required by the Rules of
Professional Conduct.
D. Excluded Losses. Except as provided by Section E of this Rule, the
following losses shall not be reimbursable:
(1) Losses incurred by related persons, law partners and associate attorneys
of the lawyer causing the loss. For purposes of these Rules, "related persons"
includes a spouse, domestic partner, child, grandchild, parent, grandparent,
sibling, or other Relative or individual with whom the lawyer maintains a
close, familial relationship;
(2) Losses covered by any bond, surety agreement, or insurance contract to the
extent covered thereby, including any loss to which any bonding agent, surety,
or insurer is subrogated, to the extent of that subrogated interest;
(3) Losses incurred by any financial institution which are recoverable under a
"banker's blanket bond" or similar commonly available insurance or surety contract;
(4) Losses incurred by any business entity controlled by the lawyer or any
person or entity described in Rule 5 D (1), (2) or (3);
(5) Losses incurred by an assignee, lienholder, or creditor of the applicant
or lawyer, unless application has been made by the client or beneficiary or the
client or beneficiary has authorized such reimbursement;
(6) Losses incurred by any governmental entity or agency;
(7) Losses arising from business or personal investments not arising in the
course of or arising out of the client-lawyer relationship;
(8) Consequential damages, such as lost interest, or attorney's fees or other
costs incurred in seeking recovery of a loss.
E. Special and Unusual Circumstances. In cases of special and unusual circumstances,
the Board may, in its discretion, consider an application which would otherwise
be excluded by reason of the procedural requirements of these rules.
F. Unjust Enrichment. In cases where it appears that there will be unjust
enrichment, or that the applicant contributed to the loss, the Board may,
in its discretion, recommend the denial of the application. No rule should
be interpreted as to provide a financial windfall to a claimant from the fund.
G. Investment Victims. When considering gifts to claimants who were
victimized after investing with a lawyer, the Board may consider such
factors as the sophistication of the investor, the length of the
relationship with the lawyer, and whether the invester was aware that the
lawyer had non-lawyer partners.
H. Exhaustion of Remedies. The Board may consider whether an applicant has
made reasonable attempts to seek reimbursement of a loss before taking action
on an application. This may include, but is not limited to, the following:
(1) Filing a claim with an appropriate insurance carrier;
(2) Filing a claim on a bond, when appropriate;
(3) Filing a claim with any and all banks which honored a financial
instrument with a forged endorsement;
(4) As a prelude to possible suit under part (5) below, demanding
payment from any business associate or employer who may be liable for
the actions of the dishonest lawyer; or
(5) Commencing appropriate legal action against the lawyer or against any
other party or entity who may be liable for the applicant's loss.
RULE 6. PROCEDURES
A. Ineligibility. Whenever it appears that an application is not eligible for
reimbursement pursuant to Rule 5, the applicant shall be advised of the
reasons why the application may not be eligible for reimbursement.
B. Investigation and Report. The WSBA staff member assigned to the Board
shall conduct an investigation regarding any application. The
investigation may be coordinated with any disciplinary investigation
regarding the lawyer. The staff member shall report to the Board and make
a recommendation to the Board.
C. Notification of Lawyer. The lawyer, or his or her representative,
regarding whom an application is made shall be notified of the application
and provided a copy of it, and shall be requested to respond within 20
days. If the lawyer's address of record on file with the WSBA is not
current, then a copy of the application should be sent to the lawyer at
any other address on file with the WSBA. A copy of these Rules shall be
provided to the lawyer or representative.
D. Withdrawal of Application/Restitution. If, during the investigation of an
application, the Applicant withdraws the Application or the Applicant
receives full restitution of the amount stated in the Application, the
Applicant and the lawyer shall be advised that the file will be closed
without further action.
E. Testimony. The Board may request that testimony be presented to complete
the record. Upon request, the lawyer or applicant, or their representatives,
may be given an opportunity to be heard at the discretion of the Board.
F. Finding of Dishonest Conduct. The Board may make a finding of dishonest
conduct for purposes of considering an application. Such a determination
is not a finding of dishonest conduct for purposes of professional discipline.
G. Evidence and Burden of Proof. Consideration of an application need not be
conducted according to technical rules relating to evidence, procedure and
witnesses. Any relevant evidence shall be admitted if it is the sort of
evidence commonly accepted by reasonably prudent persons in the conduct
of their affairs. The applicant shall have the burden of establishing
eligibility for reimbursement by a clear preponderance of the evidence.
H. Pending Disciplinary Proceedings. Unless the Trustees otherwise direct, no
application shall be acted upon during the pendency of a disciplinary proceeding
or investigation involving the same act or conduct that is alleged in the claim.
I. Public Participation. Public participation at Board meetings shall be
permitted only by prior permission granted by the Board chairperson.
J. Board Action.
(1) Actions of the Board Which Are Final Decisions. A decision by the
Board on an application for payment of $25,000 or less -- whether
such decision be to make payment, to deny payment, to defer consid
eration, or for any action other than payment of more than $25,000 --
shall be final and without right of appeal to the Trustees.
(2) Actions of the Board Which Are Recommendations to the Trustees. A
decision by the Board (a) on an application for more than $25,000, or (b)
involving a payment of more than $25,000 (regardless of the amount stated in
the application), is not final and is a recommendation to the Trustees which
shall have sole authority for final decisions in such cases.
RULE 7. ADJUDICATION BY TRUSTEES
A. A recommendation by the Board (a) concerning applications for more than
$25,000, or (b) that payments of more than $25,000 be made to applicants
regarding any one lawyer, shall be reported to the Trustees which may, in
its discretion, adopt, modify, disapprove or take any other appropriate
action on the Board's recommendation.
B. A decision of the Trustees shall be final and there shall be no right of
appeal from that decision.
RULE 8. NOTIFICATION OF APPLICANT AND LAWYER
Both the applicant and the lawyer who is the subject of an application
shall be advised of any decision of the Board or the Trustees.
RULE 9. LIMITATIONS ON AMOUNT OF REIMBURSEMENT
The Trustees may, at their discretion, set limitations on the amount of reimbursement.
RULE 10. NO LEGAL RIGHT TO PAYMENT
Any and all payments made to applicants in connection with the Lawyers' Fund for
Client Protection are gratuitous and are at the sole discretion of the Trustees.
RULE 11. RESTITUTION AND SUBROGATION
A. Restitution. A lawyer whose conduct results in payment to an applicant
shall be liable to the Fund for restitution, and the Trustees may bring
such action as they deem advisable to enforce restitution.
B. Subrogation. As a condition of payment, an applicant shall be required
to provide the Fund with a pro tanto transfer of the applicant's rights
against the lawyer, the lawyer's legal representative, estate or assigns;
and of the claimant's rights against any third party or entity who may be
liable for the applicant's loss. Failure to return a signed subrogation
agreement to the Fund within three years of approval of the application
will result in revocation of that approval.
C. Action to Enforce Restitution. In the event the Trustees commence a
judicial action to enforce restitution, they shall advise the applicant
who may then join in the action to recover any unreimbursed losses. If
the applicant commences such an action against the lawyer or another
entity who may be liable for the loss, the applicant shall notify the Fund
who may join in the action.
D. Duty to Cooperate. As a condition of payment, the applicant shall be required
to cooperate in all efforts that the Fund undertakes to achieve restitution.
RULE 12. COMPENSATION FOR REPRESENTING APPLICANTS
No lawyer shall charge or accept any payment for prosecuting an
application on behalf of an applicant, unless such charge or payment has
been approved by the Trustees.
RULE 13. CONFIDENTIALITY
A. Matters Which Are Public. The facts and circumstances which generated
the loss, the Board's findings of fact and recommendations to the Trustees
with respect to payment of a claim, the amount of claim, the amount of
loss as determined by the Board, and the amount of payment authorized and
made, shall be public. After payment is authorized, the name of the
lawyer causing the loss shall be public.
B. Matters Which Are Not Public. The Board's investigation and deliberations
of any application; the name of the applicant, unless the applicant
consents; or the name of the lawyer, unless the lawyer consents or unless
the lawyer's name is made public pursuant to these rules, shall not be public.
RULE 14. NOTICE OF ACTION
Notice of approval of an application to the Fund may be published in the
Washington State Bar News and elsewhere at the direction of the Board or
Trustees. Notice may also be posted electronically on any web site
maintained by the WSBA. If the lawyer has made full restitution to the
Fund, any notice posted electronically by the WSBA may, at the request of
the lawyer, be removed.
RULE 15. AMENDMENTS
These Rules may be amended, altered or repealed on the recommendation of
the Board by a vote of the Trustees, with the approval of the Supreme Court.
(Adopted by the Washington Supreme Court July 18, 1995; amended February 11, 1997;
May 6, 1999; October 5, 2001; December 2, 2004; September 1, 2006; November 2, 2006,
September 1, 2008; January 13, 2009; December 1, 2009; September 1, 2012.)
APR 16
Mediation Program
(a) Policy. It is the policy of the Supreme Court to encourage through a
conciliatory process the informal and prompt resolution of disputes
between lawyers and their clients, disputes between lawyers and other
lawyers, and other disputes, including disputes between lawyers and
other professionals regarding expert witness fees.
(b) Mediation Program. The Washington State Bar Association is authorized
to maintain and administer a Mediation Program for the resolution of
disputes voluntarily submitted by the parties, or referred by the
Office of Disciplinary Counsel, when mediation appears appropriate,
and to be governed by such guidelines as may be adopted by the Bar
Association's Board of Governors and approved by the Supreme Court.
(c) Confidentiality. Mediation under this rule shall be confidential, and
communications made or materials submitted in, or in connection with,
the mediation proceeding will be privileged and confidential as
provided by RCW 5.60.070, provided that no party to the mediation
will be precluded from filing or pursuing a grievance under the Rules
for Enforcement of Lawyer Conduct.
(d) Selection and Appointment of Mediators. Mediators may be agreed upon
by the parties or shall be assigned from a list approved by the Board
of Governors and maintained by the Bar Association of both lawyers
and non-lawyers with the appropriate training and experience to serve
effectively in a facilitative role. Lawyers assigned as mediators
shall be active members of the Bar Association for at least 7 years.
(e) Communications to the Association.
Communications to the Bar Association, Board of Governors, mediator,
mediation staff, or any other individual acting under authority of
these rules, are absolutely privileged, and no lawsuit predicated
thereon may be instituted against any party to a mediation, witness
or other person providing information.
[Adopted effective September 1, 1999; amended effective October 1, 2002; January 2, 2008.]
APR 17
SUSPENSION FROM PRACTICE
(a) Suspension from Practice: The Washington State Bar
Association shall request that the Supreme Court suspend a
member from the practice of law upon the execution of
written findings from an adjudicative process that: (1) the
member is more than six months delinquent in noncompliance
with a valid and enforceable order entered by a court of
competent jurisdiction requiring the member to pay child
support, and (2) the member has had the opportunity for an
adjudicative proceeding to contest the issue of compliance
with the child support order, and (3) there are currently no
good faith negotiations for a repayment agreement or other
modification of the order, and (4) there are no pending
judicial or administrative proceedings to determine whether
child support is delinquent. A member shall be considered
in compliance with an order of child support if the member
is current with a payment arrangement pursuant to an order
which contemplates payments for past due child support. The
hearing will be held, on actual notice to the member of no
less than sixty days. The hearing shall otherwise be
conducted pursuant to and in accordance with the Rules for
Enforcement of Lawyer Conduct but will be for an
administrative suspension only so long as the conditions set
forth above exist.
(b) Order of Suspension: After 60 days from the
execution of the written findings the Court may enter an
order suspending the member from practice, unless the member
submits satisfactory proof one of the conditions set forth
above does not exist.
(c) Reinstatement: A member who has been
administratively suspended under this rule shall have a
right to submit proof of a condition for suspension no
longer exists. The Court may enter an order of
reinstatement upon determination said proof is satisfactory
and so long as the member meets all other requirements to
practice law.
(d) Rules of Professional Conduct not Superseded:
Nothing in this rule supersedes any of the Rules of
Professional Conduct.
[Adopted effective September 1, 1999; October 1, 2002.]
APR 18
ADMISSION OF LAWYERS LICENSED IN OTHER STATES OR TERRITORIES
OF THE UNITED STATES OR THE DISTRICT OF COLUMBIA
TO PRACTICE LAW IN WASHINGTON
(a) Purpose. This rule prescribes the procedure,
conditions, and limitations for admission of lawyers from other
states or territories of the United States or the District of
Columbia, except as provided in rule 3. Lawyers from other
states or territories or the District of Columbia will be
admitted in Washington pursuant to this rule under procedures and
conditions that, in the judgment of the Washington State Supreme
Court, are substantially similar to the procedures and conditions
under which the other licensing state or territory or the
District of Columbia allows the admission of licensed Washington
lawyers to their states.
(b) Qualifications. Before a lawyer licensed to practice law
in another state or territory of the United States or the
District of Columbia qualifies for admission to the practice of
law in the State of Washington, the lawyer must:
(1) Present satisfactory proof of both admission to the
practice of law, together with current good standing, in another
state or territory of the United States or the District of
Columbia, and active legal experience as a lawyer or counselor at
law at the time of the application;
(2) Possess the good moral character and fitness requisite
for a member of the Bar of the State of Washington;
(3) Execute under oath and file with the Bar Association two
copies of an application in such form as may be required by the
Board of Governors; and
(4) File with the application a certificate from the
authority in such other state or territory or the District of
Columbia having final jurisdiction over professional discipline,
certifying as to the applicant's admission to practice, and the
date thereof, and as to the good standing of such lawyer or
counselor at law or the equivalent; and
(5) Provide with the application such other evidence of the
applicant's educational and professional qualifications, good
moral character and fitness and compliance with the requirements
of this rule as the Board of Governors may require; and
(6) Establish to the satisfaction of the Board of Governors
that the state or territory or the District of Columbia that
licensed the lawyer applicant allows the admission of licensed
Washington lawyers under terms and conditions substantially
similar to those set forth in these rules, provided that if the
state or territory or the District of Columbia that licensed the
lawyer applicant requires Washington lawyers to complete or meet
other conditions or requirements, the applicant must meet a
substantially similar requirement for admission in Washington; and
(7) Pay upon the filing of the application the fee
established for such admission which shall be at least equal to
that required pursuant to rule 3(d)(2) to be paid by a lawyer
applicant to take the bar examination.
(c) Procedure.
(1) The Board of Governors shall approve or disapprove
applications for admission of lawyers admitted to the practice of
law in other states or territories of the United States or the
District of Columbia. The Board may require additional proof of
any facts stated in the application. In the event of the failure
or refusal of the applicant to furnish any information or proof,
or to answer any inquiry of the Board pertinent to the pending
application, the Board may deny the application. Upon approval
of the application by the Board of Governors, the Board shall
recommend to the Supreme Court the admission of the applicant for
the purposes herein stated. The Supreme Court may enter an order
admitting to practice those applicants it deems qualified,
conditioned upon such applicant:
(i) Completing a minimum of 4 hours approved preadmission
education pursuant to rule 5(b); and
(ii) Taking and filing with the Clerk of the Supreme Court
the Oath of Attorney pursuant to rule 5; and
(iii) Paying to the Bar Association its membership fee for
the current year in the maximum amount required of active
members; and
(iv) Filing with the Bar Association in writing his or her
address in the State of Washington, together with a statement
that the applicant has read the Rules of Professional Conduct and
Rules for Enforcement of Lawyer Conduct, is familiar with their
contents and agrees to abide by them.
(2) Upon the entry of an order of admission, the filing of
the required materials and payment of the membership fee, the
applicant shall be admitted to the practice of law in the State
of Washington as specified by this rule.
[Adopted effective September 21, 1999; October 1, 2002; amended effective June 1, 2006.]
APR 19
LAWYER SERVICES
(a) Purpose. The purpose of this rule 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.
(b) Lawyers' Assistance Program (LAP).
(1) Authorization. The Washington State Bar Association is authorized to
create a program to help prevent and alleviate problems that may detrimentally
influence a lawyer's performance, including physical illnesses, emotional
problems or addictions.
(2) Confidentiality. Confidential communications between a lawyer-client and
staff or peer counselors of the Lawyers' Assistance Program shall be privileged
against disclosure without the consent of the lawyer-client to the same extent
and subject to the same conditions as confidential communications between a
client and psychologist.
(3) Exoneration From Liability.
(i) Bar Association and Its Agents. No cause of action shall accrue in
favor of any person, arising from any action or proceeding pursuant to these
rules, against the Bar Association, or its officers or agents (including but not
limited to its staff, members of the Board of Governors, or any other individual
acting under the authority of these rules) provided only that the Bar Association,
officer or agent shall have acted in good faith. The burden of proving
bad faith in this context shall be upon the person asserting it. The Bar
Association shall provide defense to any action brought against an officer or
agent of the Bar Association for actions taken in good faith under these rules
and shall bear the costs of that defense and shall indemnify the officer or agent
against any judgment taken therein.
(ii) Other persons. Communications to the Bar Association, Board of Governors,
staff, or any other individual acting under the authority of these rules, are
absolutely privileged, and no lawsuit predicated thereon may be instituted
against them or other person providing information.
(c) Fee Arbitration Program. [Reserved.]
(d) Law Office Management Assistance Program.
(1) Authorization. The Washington State Bar Association is authorized to
create a program to help improve the quality of legal services by assisting
lawyers to manage better their offices and improve the professional delivery of
legal services.
(2) Confidentiality. Information obtained by staff or agents of the Law
Office Management Assistance Program shall be confidential unless:
(i) the assisted lawyer consents to disclosure;
(ii) disclosure, based upon reasonable belief, is necessary to prevent the
assisted lawyer from committing a crime; or
(iii) pursuant to court order.
(e) Professional Responsibility Program.
(1) Authorization. The Washington State Bar Association is authorized
to maintain a program to assist lawyers in complying with their obligations
under the Rules of Professional Conduct, thereby enhancing the quality
of legal representation provided by Washington lawyers.
(2) Professional Responsibility Counsel. "Professional responsibility
counsel" denotes a lawyer employed or appointed by the Bar
Association to act as counsel on the Bar Association's behalf in
performing duties under part (e) of this rule, and any other
lawyer employed or appointed by the Bar Association, including
but not limited to disciplinary counsel or general counsel,
whenever such lawyer is temporarily performing those duties.
(3) Ethics Inquiries. Any member of the Bar Association, or any
lawyer or legal intern permitted by rule to practice law in this
state, may direct an ethics inquiry to professional
responsibility counsel. Such inquiries should be made by
telephone to the Bar Association's designated ethics inquiry
telephone line. The provisions of this rule also apply to ethics
inquiries initially submitted in writing, including facsimile, e-
mail, or other electronic means, but do not apply to requests for
written ethics opinions directed to the Bar Association's Rules
of Professional Conduct Committee or its equivalent.
(4) Scope. An inquirer may request the guidance of professional
responsibility counsel in identifying, interpreting or applying
the Rules of Professional Conduct as they relate to his or her
prospective ethical conduct. If the inquiry presents a set of
facts, those facts should ordinarily be presented in hypothetical
format. Professional responsibility counsel provides only
informal guidance. Professional responsibility counsel provides
no legal advice or opinions, and the inquirer is responsible for
making his or her own decision about the ethical issue presented.
The inquiry shall be declined if it (i) requires analysis or
resolution of legal issues other than those arising under the
Rules of Professional Conduct; (ii) seeks an opinion about the
ethical conduct of a lawyer other than the inquirer; or (iii)
seeks an opinion about the ethical propriety of the inquirer's past conduct.
(5) Limitations and Inadmissibility. Neither the making of an inquiry
nor the providing of information by professional responsibility
counsel under this rule creates a client-lawyer relationship. Any
information or opinion provided during the course of an ethics
inquiry is the informal, individual view of professional
responsibility counsel only. No information relating to an ethics
inquiry, including the fact that an inquiry has been made, its
content, or the response thereto, may be asserted in response to
any grievance or complaint under the Rules for Enforcement of
Lawyer Conduct, nor is such information admissible in any
proceeding under the Rules for Enforcement of Lawyer Conduct.
(6) Records. Professional responsibility counsel shall not make or
maintain any permanent record of the identity of an inquirer or
the substance of a specific inquiry or response. Professional
responsibility counsel may keep records of the number of
inquiries and the nature and type of inquiries and responses.
Such records shall be used solely to aid the Bar Association in
developing the Professional Responsibility Program and developing
additional educational programs. Such records shall be exempt
from public inspection and copying and shall not be subject to
discovery or disclosure in any proceeding.
(7) Confidentiality. Communications between an inquirer and
professional responsibility counsel are confidential and shall be
privileged against disclosure except by consent of the inquirer
or as authorized by the Supreme Court. Professional
responsibility counsel shall not use or reveal information
learned during the course of an ethics inquiry except as RPC 1.9
would permit with respect to information of a former client. The
provisions of RPC 8.3 do not apply to information received by
professional responsibility counsel during the course of an ethics inquiry.
(f) Communications to the Association.
Communications to the Bar Association, Board of Governors,
staff, or any other individual acting under the authority of this
rule, are absolutely privileged, and no lawsuit predicated
thereon may be instituted against them or other person providing information.
[Adopted effective September 1, 2001; amended effective April 1, 2003; December
4, 2007; January 2, 2008; December 28, 2010.]
APR 20
CHARACTER AND FITNESS BOARD
(a) Composition. The Board shall consist of not less than three nonlawyer
members, appointed by the Supreme Court, and not less than one lawyer member
from each congressional district, appointed by the Board of Governors.
(b) Qualifications. Lawyer members must have been active members of the Bar
Association for at least 7 years.
(c) Board Chair. The Board of Governors shall annually designate one lawyer
member of the Board to act as chair and another as vice-chair. The vice-chair
shall serve in the absence of or at the request of the Board chair.
(d) Vacancies. Vacancies in lawyer membership on the Board and in the office
of the Board chair and the vice-chair shall be filled by the Board of
Governors. Vacancies in nonlawyer membership shall be filled by the Supreme
Court. A person appointed to fill a vacancy shall complete the unexpired term
of the person he or she replaces, and if that unexpired term is less than 24
months he or she may be reappointed to a consecutive term.
(e) Quorum. A majority of the Board members shall constitute a quorum. Given
a quorum, the concurrence of a majority of those present shall constitute
action of the Board. In the even of a quorum is not present, the Applicant or
Petitioner may waive the requirement of a quorum.
(f) Disqualification. In the event a grievance is made to the Bar Association
alleging an act of misconduct by a lawyer member of the Board the procedures
specified in ELC2.3(b)(5) shall apply.
(g) Pro Tempore Members. When a member of the Board is disqualified or unable
to function on a case for good cause, the chair of the Board may, by written
order, designate a member pro tempore to sit with the Board to hear and
determine the cause. A member pro tempore may be appointed from among those
persons who have previously served as members of the Character and Fitness
Board (or its predecessor Character and Fitness Committee), or from among
lawyers appointed as alternate Board members by the Board of Governors and
nonlawyers appointed as alternate Board members by the Supreme Court. A lawyer
shall be appointed to substitute for a lawyer member of the Board, and a
nonlawyer to substitute for a nonlawyer member of the board.
(h) Voting. Each member, whether nonlawyer or lawyer, shall have one vote.
(i) Terms of Office. The term of office for a member of the Board shall be 3
years. Newly created Board positions may be filled by appointments of less than
3 years, as designated by the Supreme Court or the Board of Governors, to
permit as equal a number of positions as possible to be filled each year. All
terms of office begin October 1 and end September 30 or when a successor has
been appointed whichever occurs later. Members may not serve more than one term
except as otherwise provided in these rules. Members shall continue to serve
until replaced.
(j) Application of Rules. These rules and any subsequent amendments will
apply in their entirety, on the effective date as ordered by the Supreme Court,
to any pending matter, except as would not be feasible or would work an
injustice. The Chair may rule on the appropriate procedure with a view to
insuring a fair and orderly proceeding.
[Adopted effective October 1, 2002; September 1, 2006.]
RULE 20.1
AUTHORITY OF BOARD
The Board shall have the power and authority to:
(a) Accept referrals from the Bar Counsel concerning matters of character and
fitness bearing upon the qualification of Applicants for Admission of
Petitioners for Reinstatement.
(b) Review each Application for Admission or Petition for Reinstatement to
practice law in the state of Washington.
(c) Investigate matters relevant to the admission or reinstatement of any
Applicant or Petitioner and conduct hearings concerning such matters.
(d) Perform such other functions and take such other actions as provided in
these rules or as may be delegated to it by the Board of Governors or Supreme
Court, or as may be necessary and proper to carry out its duties.
[Adopted effective October 1, 2002; September 1, 2006.]
RULE 20.2
MEETINGS
The Board shall hold meetings at such times and places as it may determine.
Where the chair of the Board determines that prompt action is necessary for
protection of the public, and that circumstances do not permit a full meeting
of the Board, the Board may vote on a matter otherwise ready for review without
meeting together, through telephone, electronic or written communication.
[Adopted effective October 1, 2002; September 1, 2006.]
RULE 20.3
BAR COUNSEL
The Bar Association shall be represented by a lawyer appointed by the
Executive Director of the Bar Association, who shall act as counsel to the
Board and who may make a recommendation in support of or in opposition to the
admission or reinstatement of an Applicant or Petitioner.
[Adopted effective October 1, 2002; September 1, 2006.]
RULE 20.4
CLERK
The Executive Director of the Bar Association may appoint a suitable person
or persons to act as Clerk to the Board, and to assist the Board in carrying
out its functions under these rules.
[Adopted effective October 1, 2002; September 1, 2006.]
RULE 20.5
SERVICE
Service of papers and documents shall be made by first class postage prepaid
mail to the Applicant's or Petitioner's, or his or her counsel's, last known
address on record with the Bar Association. If properly made, service by mail
is deemed accomplished on the date of the mailing. Any notice of change of
address shall be submitted in writing to the Bar Association.
[Adopted effective October 1, 2002; September 1, 2006.]
APR 21
CHARACTER DEFINED
Good moral character is a record of conduct manifesting
the qualities of honesty, fairness, candor, trustworthiness,
observance of fiduciary responsibilities, adherence to the
law, and a respect for the rights of other persons and the
judicial process.
[Adopted effective September 1, 2006.]
APR 22
FITNESS DEFINED; INDEPENDENT FITNESS EXAMINATION
(a) Fitness - defined. Fitness is the absence of any current
mental impairment or current drug or alcohol dependency or abuse
which, if extant, would substantially impair the ability of the
Applicant or Petitioner to practice law.
(b) Testimony and Evidence: If it appears that the Applicant
or Petitioner has engaged in conduct that was or may have been
caused in whole or in part by a mental impairment or drug or
alcohol dependency or abuse, the Applicant or Petitioner may
present testimony or evidence from a licensed or certified mental
health professional (hereafter "examining professional").
(c) Independent Fitness Examination: If after reviewing such
testimony or evidence the Board finds that further examination is
necessary, the Board by majority vote may require an examination
of the Applicant or Petitioner by an examining professional
approved by the Lawyers' Assistance Program of the Washington
State Bar Association.
(d) Failure to Comply: The failure of an Applicant or a
Petitioner to agree or submit to a required independent fitness
examination shall result in the Applicant's or Petitioner's
application or petition being denied.
(e) Costs: The cost of any examination required by the Board
shall be borne by the Bar Association.
(f) Report: The examining professional shall issue a written
report of his or her findings which report shall be provided to
the Applicant or Petitioner and his or her counsel, Bar Counsel
and the Character and Fitness Board.
(g) Confidentiality: Any report and testimony of an examining
professional may be admitted into evidence at a hearing on, or
review of, the Applicant's or Petitioner's fitness and
transmitted with the record on review by the Disciplinary Board
or the Supreme Court. Reports and testimony regarding the
Applicant's or Petitioner's fitness shall otherwise be kept
confidential in all respects and neither the report nor the
testimony of the examining professional shall be discoverable or
admissible in any other proceeding or action.
[Adopted effective September 1, 2006.]
APR 23
CHARACTER AND FITNESS BOARD - PREHEARING PROCEDURE -
APPLICATIONS FOR ADMISSION
(a) Admissions Staff Review. All applications for
admission to practice law in Washington State shall be
reviewed by the Bar Association Admissions staff for
purposes of determining whether any of the factors set forth
in rule 24.2(a) are present.
(b) Admissions Staff Review - Standard. All applications
which reflect one or more of the factors set forth in rule 24.2(a)
shall be referred to Bar Counsel for review.
(c) Review By Bar Counsel - Standard. Upon receiving
a referral from the admissions staff, Bar Counsel may
conduct such further investigation as he or she deems
necessary and thereafter, applying the factors and
considerations set forth in rule 24.2, and upon reviewing
the material evidence in the light most favorable to the Bar
Association's obligation to recommend the admission to the
practice of law only those persons who possess good moral
character and fitness, Bar Counsel shall refer to the
Character and Fitness Board for hearing any Applicant about
whom there is a substantial question whether the Applicant
possesses the requisite good moral character and fitness to practice law.
[Adopted effective September 1, 2006.]
APR 24
APPLICATIONS FOR ADMISSION
[Adopted effective September 1, 2006.]
APR 24.1
DUTY OF APPLICANT
It shall be the duty of every Applicant to cooperate in good faith with any
investigation by promptly furnishing written or oral explanations, documents, releases,
authorizations, or anything else reasonably required by the Board or Bar Counsel. Failure
to appear as directed or to furnish additional proof or answers as required or to cooperate
fully shall be sufficient reason for the Board to recommend the rejection of an application.
[Adopted effective September 1, 2006.]
APR 24.2
FACTORS CONSIDERED WHEN DETERMINING CHARACTER AND FITNESS
(a) Factors. The following factors shall be considered by the Admissions staff
and Bar Counsel when determining whether an applicant shall be referred to
the Character and Fitness Board for a determination of the applicant's character
and/or fitness to practice law:
(1) unlawful conduct.
(2) academic misconduct.
(3) making of false statements or omitting material information in connection
with an application to sit for a bar examination.
(4) misconduct in employment.
(5) acts involving dishonesty, making false statements, fraud, deceit or
misrepresentation.
(6) abuse of legal process.
(7) neglect of financial responsibilities.
(8) disregard of professional obligations.
(9) violation of a court order.
(10) evidence of a current substantial mental impairment, including without
limitation, drug or alcohol dependency or abuse.
(11) denial of admission to the bar in another jurisdiction on character and
fitness grounds.
(12) disciplinary action by any professional disciplinary agency of any jurisdiction.
(13) any other conduct or condition which reflects adversely on moral character
or fitness of the Applicant to practice law.
(b) Factors Considered by the Character and Fitness Board When Determining Good
Moral Character. When determining whether past conduct disqualifies the
Applicant from taking the Washington Bar Examination, or for admission to the Bar,
the Character and Fitness Board shall consider those factors specified in rule
24.2(a) and the following factors in mitigation or aggravation:
(1) Applicant's age at the time of the conduct.
(2) Recency of the conduct.
(3) Reliability of the information concerning the conduct.
(4) Seriousness of the conduct.
(5) Factors or circumstances underlying the conduct.
(6) Cumulative nature of the conduct.
(7) Candor in the admissions process and before the Board.
(8) Materiality of any omissions or misrepresentations.
(9) Evidence of rehabilitation, which may include but is not limited to the following:
(i) absence of recent misconduct.
(ii) compliance with any disciplinary, judicial
or administrative order arising out of the misconduct.
(iii) sufficiency of punishment.
(iv) restitution of funds or property, where applicable.
(v) Applicant's attitude toward the misconduct, including without limitation
acceptance of responsibility and remorse.
(vi) personal assurances, supported by corroborating evidence, of a desire and
intent to engage in exemplary conduct in the future;
(vii) constructive activities and accomplishments since the conduct in question.
(viii) the Applicant's understanding and acceptance of the factors leading to
the misconduct and how similar misconduct may be avoided in the future.
(c) Factors Considered by the Character and Fitness Board in Fitness Cases Involving
Drug or Alcohol Dependence or Abuse. When determining whether an Applicant is unfit
to practice law due to drug or alcohol dependence or abuse, the Character and Fitness
Board shall consider the following factors, no single one of which is determinative:
(1) Whether the Applicant is currently using drugs or alcohol.
(2) Whether the Applicant's drug or alcohol dependence or abuse is likely to cause
or contribute to any of the conduct specified in rule 24.2(a).
(3) The nature, extent and duration of the Applicant's drug or alcohol dependence
or abuse, and the Applicant's candor in the admissions process and before the Board
when describing the problem.
(4) Whether the Applicant has been or is now in treatment and, if so:
(i) The nature and duration of the treatment.
(ii) Whether treatment was or is voluntary or involuntary.
(iii) Consistency of participation in or compliance with treatment.
(iv) Whether the treatment was effective.
(5) Whether the Applicant has undergone a drug or alcohol evaluation by a certified
chemical dependency counselor or other professional with credentials acceptable to
the Board and, if so, whether the substance of such person's opinion the findings have
been made available to the Committee.
(6) The length of time the Applicant has been in recovery. In cases where the period
of recovery is less than two years, the Applicant must demonstrate through appropriate
expert opinion that there has been an adequate period of recovery.
(d) Factors Considered by the Character and Fitness Board in Fitness Cases Involving
a Mental Impairment. When determining whether an Applicant is unfit to practice
law due to a mental impairment, the Character and Fitness Board shall consider the
following factors, no single one of which is determinative:
(1) Whether there is a current mental impairment.
(2) Whether the Applicant's mental impairment is likely to cause or contribute to any
of the conduct specified in rule 24.2(a).
(3) The nature, extent and duration of the Applicant's mental impairment, and the
Applicant's candor in the admissions process and before the Board when describing the impairment.
(4) Whether the Applicant's mental impairment is chronic or situational in nature.
(5) Whether the applicant has received or is receiving professional mental health treatment
appropriate for the impairment, and if so:
(i) Whether the Applicant's impairment has been in remission for at least two years as
verified by an appropriate mental health professional and, if not, whether the
Applicant has demonstrated through appropriate expert opinion that the period of
remission has been adequate.
(ii) Whether a mental health professional has identified any conditions, including without
limitation further treatment, that must be complied with to continue the Applicant's
state of remission and, if so, whether the Applicant is in compliance with those conditions.
(e) Factors Not Considered by the Character andFitness Board. The following factors
shall not be considered as evidence of an Applicant's character or fitness:
(1) Racial or ethnic identity.
(2) Sex.
(3) Sexual orientation.
(4) Marital status.
(5) Religious or spiritual beliefs or affiliation.
(6) Political beliefs or affiliation.
(7) Physical disability.
(8) National origin.
(9) Age.
(10) Learning disabilities.
[Adopted effective September 1, 2006.]
APR 24.3
HEARINGS
(a) Notice. The Character and Fitness Board may fix a time and
place for a hearing on the application, and shall serve notice
thereof not less than 30 days prior to the hearing upon the
Applicant and upon such other persons as may be ordered by the
Character and Fitness Board. This notice requirement may be
waived by the Applicant.
(b) Right to Counsel. An Applicant may be represented by counsel.
(c) Burden of Proof. An Applicant must establish by clear and
convincing evidence that he or she is of good moral character and
possesses the requisite fitness to practice law.
(d) Proceedings Not Civil or Criminal. Hearings before the
Character and Fitness Board are not civil nor criminal but are
sui generis hearings to determine whether an Applicant possesses
good moral character and fitness to be admitted to practice law.
(e) Rules of Evidence.
(1) Evidentiary rulings shall be made by the Board
chairperson. A majority of Board members present may by vote
overrule a ruling by the chairperson.
(2) Consistent with section (d) of this rule, evidence,
including hearsay evidence, is admissible if in the chairperson's
judgment it is the kind of evidence on which reasonably prudent
persons are accustomed to rely in the conduct of their affairs.
The chairperson may exclude evidence that is irrelevant,
immaterial, or unduly repetitious.
(3) Witnesses shall testify under oath; all testimony shall be
transcribed by a certified court reporter.
(4) Expert witnesses shall appear and testify in person before
the Board, unless in the discretion of the Board their appearance
before the Board is waived.
(5) Generally, all documentary evidence submitted to the Board
for consideration must be delivered to Bar Counsel not less than
14 days prior to the hearing. Bar Counsel will provide copies of
all documentary evidence, and any hearing briefs, memoranda, or
other documentary material, to the Board members and to the
Applicant prior to the hearing date.
(6) The Board may take notice of any judicially cognizable
facts, or technical or scientific facts within a Board member's
specialized knowledge.
(7) Questioning of the Applicant and the Applicant's witnesses
shall be conducted by Bar Counsel or his or her designee and by
two members of the Board designated by the chair.
(f) Confidentiality: All hearings and documents before the
Character and Fitness Board on applications for admission to the
bar are confidential.
[Adopted effective September 1, 2006.]
APR 24.4
DECISION AND RECOMMENDATION.
(a) Decision. Within 20 days after the proceedings are
concluded, unless a greater or shorter period is directed by the
Board chair, the Board will file with the Bar Association written
findings of fact, conclusions of law, and a recommendation. Any
Board member or members may file a written dissent within the same time period.
(b) Action on Board Recommendation. The recommendation of the
Character and Fitness Board shall be served upon the Applicant
pursuant to rule 20.5. If the Board recommends admission, the
record, recommendation and all exhibits shall be transmitted to
the Supreme Court for disposition. If the Board recommends
against admission, the record and recommendation shall be retained
in the office of the Bar Association unless the Applicant requests
that it be submitted to the Supreme Court by filing a Notice of
Appeal with the Board within 15 days of service of the
recommendation of the Character and Fitness Board. If the
Applicant so requests, the Board will transmit the record,
including the transcript, exhibits, and recommendation to the
Supreme Court for review and disposition. If the Applicant does
not so request, the bar examination fee shall be refunded to the Applicant.
[Adopted effective September 1, 2006.]
APR 24.5
ACTION ON SUPREME COURT'S DETERMINATION
(a) Application Approved. If the application is approved by
the Supreme Court, admission shall be subject to the Applicant's
taking and passing the bar examination and complying with rule 5.
(b) Application Denied. If the application is denied, the bar
examination fee shall be refunded to the Applicant.
[Adopted effective September 1, 2006.]
APR 25
PETITIONS FOR REINSTATEMENT AFTER DISBARMENT
[Adopted effective September 1, 2006.]
APR 25.1
RESTRICTIONS ON REINSTATEMENT
(a) Petitions For Reinstatement. All Petitions for
Reinstatement after Disbarment shall be referred for hearing
before the Character and Fitness Board.
(b) When Petition May Be Filed. No petition for reinstatement
shall be filed within a period of 5 years after disbarment or
within a period of 2 years after an adverse decision of the
Supreme Court upon a former petition, or within a period of 1
year after an adverse recommendation of the Character and Fitness
Board on a former petition when that recommendation is not
submitted to the Supreme Court. If prior to disbarment the lawyer
was suspended from the practice of law pursuant to the provisions
of Title 7 of the Rules for Enforcement of Lawyer Conduct, or any
comparable rule, the period of such suspension shall be credited
toward the 5 years referred to above.
(c) When Reinstatement May Occur. No disbarred lawyer may be
reinstated sooner than 6 years following disbarment. If prior to
disbarment the lawyer was suspended from the practice of law
pursuant to the provisions of Title 7 of the Rules for
Enforcement of Lawyer Conduct, or any comparable rule, the period
of such suspension shall be credited toward the 6 years referred to above.
(d) Payment of Obligations. No disbarred lawyer may file a
petition for reinstatement until costs and expenses and
restitution ordered by the Disciplinary Board or the Supreme
Court have been paid and until amounts paid out of the Lawyers'
Fund for Client Protection for losses caused by the conduct of
the Petitioner have been repaid to the client protection fund, or
until periodic payment plans for costs and expenses, restitution
and repayment to the client protection fund have been entered
into by agreement between the Petitioner and disciplinary
counsel. A Petitioner may seek review by the Chair of the
Disciplinary Board of an adverse determination by disciplinary
counsel regarding the reasonableness of any such proposed
periodic payment plan. Such review will proceed as directed by
the Chair of the Disciplinary Board and the decision of the Chair
of the Disciplinary Board is final unless the Chair of the
Disciplinary Board determines that the matter should be reviewed
by the Disciplinary Board, in which case the Disciplinary Board
review will proceed as directed by the Chair and the decision of
the Board will be final.
[Adopted effective September 1, 2006.]
APR 25.2
REVERSAL OF CONVICTION
If a lawyer has been disbarred solely because of his or her
conviction of a crime and the conviction is later reversed and
the charges dismissed on their merits, the Supreme Court may in
its discretion, upon direct application by the lawyer, enter an
order reinstating the lawyer upon such conditions as determined
by the Supreme Court. At the time such direct application is
filed with the court a copy shall be filed with the Bar Association.
The Supreme Court may request a response to the application from the
Bar Association.
[Adopted effective September 1, 2006.]
APR 25.3
PETITIONS AND INVESTIGATIONS
(a) Form of Petition. A petition for reinstatement after
disbarment shall be in writing in such form as the Character and
Fitness Board may prescribe. The petition shall be filed with
the Character and Fitness Board. The petition shall set forth the
age, residence and address of the Petitioner, the date of
disbarment, and a concise statement of facts claimed to justify
reinstatement. The petition shall be accompanied by the total
fees required of a lawyer Applicant under these rules.
(b) Investigations. The petition for reinstatement shall be
referred to the Character and Fitness Board.
(c) Duty to Cooperate. It shall be the duty of every
Petitioner to cooperate in good faith with any investigation by
promptly furnishing written or oral explanations, documents,
releases, authorizations, or anything else reasonably required by
the Board or Bar Counsel. Failure to appear as directed or to
furnish additional proof or answers as required or to cooperate
fully shall be sufficient reason for the Committee to recommend
the rejection of a petition.
(d) Proceedings Public. A petition for reinstatement after
disbarment shall be a public proceeding from the time the
petition is filed.
(e) Protective Orders. To protect a compelling interest, a
Petitioner may, on a showing of good cause, move for a protective
order prohibiting the disclosure or release of specific
information, documents, or pleadings, and directing that the
proceedings be conducted so as to implement the order.
[Adopted effective September 1, 2006.]
APR 25.4
HEARING BEFORE CHARACTER AND FITNESS BOARD
(a) Notice. The Character and Fitness Board may fix a time and
place for a hearing on the petition, and shall serve notice
thereof not less than 30 days prior to the hearing upon the
Petitioner and upon such other persons as may be determined by
Bar Counsel or as ordered by the Character and Fitness Board.
Notice of the hearing shall also be published at least once in
the Washington State Bar News and such other newspaper or
periodical as the Character and Fitness Board may direct. Such
published notice shall contain a statement that a petition for
reinstatement has been filed and shall give the date fixed for the hearing.
(b) Statement in Support or Opposition. On or prior to the
date of hearing, anyone wishing to do so may file with the
Character and Fitness Board a written statement for or against
the petition, such statements to set forth factual matters
showing that the Petitioner does or does not meet the
requirements for reinstatement as set forth in these rules.
(c) Hearings. Hearings shall be conducted pursuant to rule 24.3.
[Adopted effective September 1, 2006.]
APR 25.5
ACTION BY CHARACTER AND FITNESS BOARD
(a) Requirements for Favorable Recommendation. Reinstatement
may be recommended by the Character and Fitness Board only upon a
showing, supported by clear and convincing proof, that the
Petitioner possesses the qualifications and meets the
requirements for reinstatement as set forth in these rules and
that the Petitioner has been rehabilitated.
(b) Factors Considered by the Character and Fitness Board. In
reaching the decision of whether the Petitioner has been
rehabilitated, the Board shall consider the factors set forth in
Rule 24.2 (b), (c) and (d), where applicable, and the following factors:
(i) The Petitioner's character, standing, and professional
reputation in the community in which the Petitioner resided
and practiced prior to disbarment.
(ii) The ethical standards which the Petitioner observed in
the practice of law.
(iii) The nature and character of the conduct for which the
Petitioner was disbarred.
(iv) The sufficiency of the punishment undergone in
connection therewith, and the making or failure to make
restitution where required.
(v) The Petitioner's attitude, conduct, and reformation
subsequent to disbarment.
(vi) The time that has elapsed since disbarment.
(vii) The Petitioner's current proficiency in the law; and
(viii) The sincerity, frankness, and truthfulness of the
Petitioner in presenting and discussing the factors relating
to the Petitioner's disbarment and reinstatement.
(c) Factors Not Considered by the Character and Fitness Board.
The following factors shall not be considered as evidence of a
Petitioner's character or fitness:
(1) Racial or ethnic identity.
(2) Sex.
(3) Sexual orientation.
(4) Marital status.
(5) Religious or spiritual beliefs or affiliation.
(6) Political beliefs or affiliation.
(7) Physical disability.
(8) National origin.
(9) Learning disabilities.
(d) Action on Board Recommendation. The recommendation of the
Character and Fitness Board shall be served upon the Petitioner
pursuant to rule 20.5. If the Board recommends reinstatement, the
record and recommendation shall be transmitted to the Supreme
Court for disposition. If the Board recommends against
reinstatement, the record and recommendation shall be retained in
the office of the Bar Association unless the Petitioner requests
that it be submitted to the Disciplinary Board by filing with the
Clerk of the Disciplinary Board a request for Disciplinary Board
review within 15 days of service of the recommendation of the
Character and Fitness Board. If the Petitioner so requests, the
record and recommendation shall be transmitted to the
Disciplinary Board for disposition and the review will be
conducted under the procedure of rules 11.9 and 11.12 of the
Rules for Enforcement of Lawyer Conduct. If the Petitioner does
not so request, the bar examination fee shall be refunded to the
Petitioner, but the Petitioner shall still be responsible for
payment of the costs incidental to the reinstatement proceeding
as directed by the Character and Fitness Board.
(e) Action on Disciplinary Board Recommendation. The
recommendation of the Disciplinary Board shall be served upon the
Petitioner. If the Disciplinary Board recommends reinstatement,
the record and recommendation shall be transmitted to the Supreme
Court for disposition. If the Disciplinary Board recommends
against reinstatement, the record and recommendation shall be
retained in the office of the Bar Association unless the
Petitioner requests that it be submitted to the Supreme Court by
filing with the Clerk of the Disciplinary Board a request for
Supreme Court review within 30 days of service of the
recommendation. If the Petitioner so requests, the record and
recommendation shall be transmitted to the Supreme Court for
disposition. If the Petitioner does not so request, the bar
examination fee shall be refunded to the Petitioner, but the
Petitioner shall still be responsible for payment of the costs
incidental to the reinstatement proceeding as directed by the
Disciplinary Board under the procedure of rule 13.9 of the Rules
for Enforcement of Lawyer Conduct.
[Adopted effective September 1, 2006.]
APR 25.6
ACTION ON SUPREME COURT'S DETERMINATION
(a) Petition Approved. If the petition for reinstatement is
approved by the Supreme Court, the reinstatement shall be subject
to the Petitioner's taking and passing the bar examination,
paying to the Bar Association its membership fee for the current
year and paying the costs incidental to the reinstatement
proceeding as directed by the Supreme Court.
(b) Petition Denied. If the petition for reinstatement is
denied, the bar examination fee shall be refunded to the
Petitioner, but the Petitioner shall still be responsible for
payment of the costs incidental to the reinstatement proceeding.
[Adopted effective September 1, 2006.]
APR 26
INSURANCE DISCLOSURE
(a) Each active member of the Bar Association shall certify annually
in a form approved by the Board of Governors by the date specified by
the form (1) whether the lawyer is engaged in the private practice of
law; (2) if engaged in the private practice of law, whether the lawyer
is currently covered by professional liability insurance; (3) whether
the lawyer intends to maintain insurance during the period of time the
lawyer is engaged in the private practice of law; and (4) whether the
lawyer is engaged in the practice of law as a full-time government
lawyer or is counsel employed by an organizational client and does not
represent clients outside that capacity. Each lawyer admitted to the
active practice of law who reports being covered by professional
liability insurance shall notify the Bar Association in writing within
30 days if the insurance policy providing coverage lapses, is no longer
in effect or terminates for any reason.
(b) The information submitted pursuant to this rule will be made
available to the public by such means as may be designated by the Board
of Governors, which may include publication on the website maintained
by the Bar Association.
(c) Any lawyer admitted to the active practice of law who fails
to comply with this rule by the date specified in section (a) may
be ordered suspended from the practice of law by the Supreme
Court until such time as the lawyer complies. Supplying false
information in response to this rule shall subject the lawyer to
appropriate disciplinary action.
Adopted effective July 1, 2007.
APR 27
PROVISION OF LEGAL SERVICES FOLLOWING DETERMINATION OF MAJOR DISASTER
(a) Determination of Existence of Major Disaster. Solely for purposes of
this Rule, the Supreme Court shall determine when an emergency affecting
the justice system as a result of a natural or other major disaster has
occurred in:
(1) Washington and whether the emergency caused by the major disaster
affects the entirety or only a part of the State of Washington, or
(2) another jurisdiction, but only after such a determination and its
geographical scope have been made by the highest court of that
jurisdiction. The authority to engage in the temporary practice of
law in Washington pursuant to paragraph (c) shall extend only to
lawyers who principally practice in the area of such other
jurisdiction determined to have suffered a major disaster causing an
emergency affecting the justice system and the provision of legal services.
(b) Temporary Practice in Washington Following Major Disaster in
Washington. Following the determination of an emergency affecting the
justice system in Washington pursuant to paragraph (a) of this Rule, or a
determination that persons displaced by a major disaster in another
jurisdiction and residing in Washington are in need of pro bono services
and the assistance of lawyers from outside of Washington is required to
help provide such assistance, a lawyer authorized to practice law in
another United States jurisdiction, and not disbarred, suspended from
practice or otherwise restricted from practice in any jurisdiction, may
provide legal services in Washington on a temporary basis. Such legal
services must be provided on a pro bono basis without compensation,
expectation of compensation or other direct or indirect pecuniary gain to
the lawyer. Such legal services shall be supervised by a lawyer licensed
to practice in Washington and assigned by a qualified legal services
provider as defined in Rule 8(e) or as otherwise ordered by the Supreme
Court. A qualified legal services provider shall be entitled to receive
all court-awarded attorney fees for any representation rendered by the
assigned lawyer pursuant to this Rule. When a lawyer authorized to
practice under this rule signs correspondence or pleadings, the lawyer's
signature shall be followed by the title "active disaster relief lawyer."
(c) Temporary Practice in Washington Following Major Disaster in Another
Jurisdiction. Following the determination of a major disaster in another
United States jurisdiction, a lawyer who is authorized to practice law and
who principally practices in that affected jurisdiction, and who is not
disbarred, suspended from practice or otherwise restricted from practice in
any jurisdiction, may provide legal services in Washington on a temporary
basis. Those legal services must arise out of and be reasonably related to
that lawyer's practice of law in the jurisdiction, or area of such other
jurisdiction, where the major disaster occurred.
(d) Duration of Authority for Temporary Practice. The authority to practice
law in Washington granted by paragraph (b) of this Rule shall end when the
Supreme Court determines that the emergency affecting the justice system
caused by the major disaster in Washington has ended except that a lawyer
then representing clients in Washington pursuant to paragraph (b) is
authorized to continue the provision of legal services for such time as is
reasonably necessary to complete the representation, but the lawyer shall
not thereafter accept new clients. The authority to practice law in
Washington granted by paragraph (c) of this Rule shall end 60 days after
the Supreme Court declares that the emergency affecting the justice system
caused by the major disaster in the affected jurisdiction has ended.
(e) Court Appearances. The authority granted by this Rule does not include
appearances in court except:
(1) pursuant to Rule 8(b) and, if such authority is granted, any
fees for such admission shall be waived; or
(2) if the Supreme Court, in any determination made under paragraph (a)
of this Rule, grants blanket permission to appear in all or
designated courts of Washington to lawyers providing legal services
pursuant to paragraph (b) of this Rule. If such an authorization is
included, any admission fees shall be waived.
(f) Disciplinary Authority and Registration Requirement and Approval.
Lawyers providing legal services in Washington pursuant to paragraphs (b)
or (c) are subject to the disciplinary authority of Washington and the
Washington Rules of Professional Conduct as provided in Rule 8.5 of the
Rules of Professional Conduct. Lawyers providing legal services in
Washington under paragraphs (b) or (c) must file a registration statement
with the Washington State Bar Association. The registration statement shall
be in a form prescribed by the Bar Association. Any lawyer seeking to
provide legal services pursuant to this rule must be approved by the
Supreme Court before being authorized to provide such legal services. Any
lawyer who provides legal services pursuant to this Rule shall not be
considered to be engaged in the unlawful practice of law in Washington.
(g) Notification to Clients. Lawyers licensed to practice law in another
United States jurisdiction who provide legal services pursuant to this Rule
shall inform clients in Washington of the jurisdiction in which they are
licensed to practice law, any limits on that license, and that they are not
authorized to practice law in Washington except as permitted by this Rule.
They shall not state or imply to any person that they are otherwise
licensed to practice law in Washington.
[Adopted effective September 1, 2008.]
APR 28
[New]
LIMITED PRACTICE RULE FOR LIMITED LICENSE LEGAL TECHNICIANS
A. Purpose. The Civil Legal Needs Study (2003),
commissioned by the Supreme Court, clearly established that the
legal needs of the consuming public are not currently being met.
The public is entitled to be assured that legal services are rendered
only by qualified trained legal practitioners. Only the legal
profession is authorized to provide such services. The purpose of
this rule is to authorize certain persons to render limited legal
assistance or advice in approved practice areas of law. This rule
shall prescribe the conditions of and limitations upon the provision
of such services in order to protect the public and ensure that only
trained and qualified legal practitioners may provide the same.
This rule is intended to permit trained Limited License Legal
Technicians to provide limited legal assistance under carefully
regulated circumstances in ways that expand the affordability of
quality legal assistance which protects the public interest.
B. Definitions. For purposes of this rule, the following
definitions will apply:
(1) "APR" means the Supreme Court's Admission to Practice
Rules.
(2) "Board" when used alone means the Limited License Legal
Technician Board.
(3) "Lawyer" means a person licensed and eligible to practice
law in any United States jurisdiction.
(4) "Limited License Legal Technician" (LLLT) means a
person qualified by education, training and work experience who is
authorized to engage in the limited practice of law in approved
practice areas of law as specified by this rule and related
regulations. The legal technician does not represent the client in
court proceedings or negotiations, but provides limited legal
assistance as set forth in this rule to a pro se client.
(5) "Paralegal/legal assistant" means a person qualified by
education, training, or work experience; who is employed or
retained by a lawyer, law office, corporation, governmental agency,
or other entity; and who performs specifically delegated
substantive law-related work for which a lawyer is responsible.
(6) "Reviewed and approved by a Washington lawyer" means
that a Washington lawyer has personally supervised the legal work
and documented that supervision by the Washington lawyer's
signature and bar number.
(7) "Substantive law-related work" means work that requires
knowledge of legal concepts and is customarily, but not
necessarily, performed by a lawyer.
(8) "Supervised" means a lawyer personally directs, approves;
and has responsibility for work performed by the Limited License
Legal Technician.
(9) "Washington lawyer" means a person licensed and eligible
to practice law in Washington and who is an active or emeritus
member of the Washington State Bar Association.
(10) Words of authority:
(a) "May" means "has discretion to," "has a right to," or "is
permitted to."
(b) "Must" or "shall" means "is required to."
(c) "Should" means "recommended but not required."
C. Limited License Legal Technician Board
(1) Establishment. There is hereby established a Limited
License Legal Technician Board. The Board shall consist of 13
members appointed by the Supreme Court of the State of
Washington, nine of whom shall be active Washington lawyers,
and four of whom shall be nonlawyer Washington residents. At
least one member shall be a legal educator. The members shall
initially be appointed to staggered terms of one to three years.
Thereafter, appointments shall be for three year terms. No member
may serve more than two consecutive full three year terms.
(2) Board Responsibilities. The Board shall be responsible for
the following:
(a) Recommending practice areas of law for LLLTs, subject to
approval by the Supreme Court;
(b) Processing applications and fees, and screening applicants;
(c) Administering the examinations required under this rule
which shall, at a minimum, cover the rules of professional conduct
applicable to Limited License Legal Technicians, rules relating to
the attorney-client privilege, procedural rules, and substantive law
issues related to one or more approved practice areas;
(d) Determining LLLT Continuing Legal Education (LLLT
CLE) requirements and approval of LLLT CLE programs;
(e) Approving education and experience requirements for
licensure in approved practice areas;
(f) Establishing and overseeing committees and tenure of
members;
(g) Establishing and collecting examination fees, LLLT CLE
fees, annual license fees, and other fees in such amounts approved
by the Supreme Court as are necessary to carry out the duties and
responsibilities of the Board; and
(h) Such other activities and functions as are expressly
provided for in this rule.
(3) Rules and Regulations. The Board shall propose rules and
regulations for adoption by the Supreme Court that:
(a) Establish procedures for grievances and disciplinary
proceedings;
(b) Establish trust account requirements and procedures;
(c) Establish rules of professional and ethical conduct; and
(d) Implement the other provisions of this rule.
D. Requirements for Applicants. An applicant for licensure
as a Limited License Legal Technician shall:
(1) Age. Be at least 18 years of age.
(2) Moral Character and Fitness to Practice. Be of good moral
character and demonstrate fitness to practice as a Limited License
Legal Technician.
(3) Education and Experience. Have the following education
and experience:
(a)(i) An associate degree or equivalent program, or a bachelor
degree, in paralegal/legal assistant studies approved by the
American Bar Association or the Board, together with a minimum
of two years' experience as a paralegal/legal assistant doing
substantive law-related work under the supervision of a lawyer,
provided that at least one year is under a Washington lawyer; or
(ii) A post-baccalaureate certificate program in paralegal/legal
assistant studies approved by the Board, together with a minimum
of three years' experience as a paralegal/legal assistant doing
substantive law-related work under the supervision of a lawyer,
provided that at least one year is under a Washington lawyer; and
(b) Complete at least 20 hours of pro bono legal service in
Washington as approved by the Board, within two years prior to
taking the Limited License Legal Technician examination.
In all cases, the paralegal/legal assistant experience must be
acquired after completing the education requirement, unless
waived by the Board for good cause shown.
(4) Application. Execute under oath and file with the Board
two copies of his/her application, in such form as the Board
requires. An applicant's failure to furnish information requested by
the Board or pertinent to the pending application may be grounds
for denial of the application.
(5) Examination Fee. Pay, upon the filing of the application,
the examination fee and any other required application fees as
established by the Board and approved by the Supreme Court.
E. Licensing Requirements. In order to be licensed as a
Limited License Legal Technician, all applicants must:
(1) Examination. Take and pass the examinations required
under these rules;
(2) Annual License Fee. Pay the annual license fee;
(3) Financial Responsibility. Show proof of ability to respond
in damages resulting from his or her acts or omissions in the
performance of services permitted by this rules. The proof of
financial responsibility shall be in such form and in such amount as
the Board may by regulation prescribe; and
(4) Meet all other licensing requirements set forth in the rules
and regulations proposed by the Board and adopted by the
Supreme Court.
F. Scope of Practice Authorized by Limited Practice Rule.
The Limited License Legal Technician shall ascertain whether the
issue is within the defined practice area for which the LLLT is
licensed. If it is not, the LLLT shall not provide the services
required on this issue and shall inform the client that the client
should seek the services of a lawyer. If the issue is within the
defined practice area, the LLLT may undertake the following:
(1) Obtain relevant facts, and explain the relevancy of such
information to the client;
(2) Inform the client of applicable procedures, including
deadlines, documents which must be filed, and the anticipated
course of the legal proceeding;
(3) Inform the client of applicable procedures for proper service
of process and filing of legal documents;
(4) Provide the client with self-help materials prepared by a
Washington lawyer or approved by the Board, which contain
information about relevant legal requirements, case law basis for
the client's claim, and venue and jurisdiction requirements;
(5) Review documents or exhibits that the client has received
from the opposing side, and explain them to the client;
(6) Select and complete forms that have been approved by the
State of Washington, either through a governmental agency or by
the Administrative Office of the Courts or the content of which is
specified by statute; federal forms; forms prepared by a
Washington lawyer; or forms approved by the Board; and advise
the client of the significance of the selected forms to the client's
case;
(7) Perform legal research and draft legal letters and documents
beyond what is permitted in the previous paragraph, if the work is
reviewed and approved by a Washington lawyer;
(8) Advise a client as to other documents that may be
necessary to the client's case (such as exhibits, witness
declarations, or party declarations), and explain how such
additional documents or pleadings may affect the client's case;
(9) Assist the client in obtaining necessary documents, such as
birth, death, or marriage certificates.
G. Conditions Under Which A Limited License Legal
Technician May Provide Services
(1) A Limited License Legal Technician must have a principal
place of business having a physical street address for the
acceptance of service of process in the State of Washington;
(2) A Limited License Legal Technician must personally
perform the authorized services for the client and may not delegate
these to a nonlicensed person. Nothing in this prohibition shall
prevent a person who is not a licensed LLLT from performing
translation services;
(3) Prior 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, that includes the following provisions:
(a) An explanation of the services to be performed, including a
conspicuous statement that the Limited License Legal Technician
may not appear or represent the client in court, formal
administrative adjudicative proceedings, or other formal dispute
resolution process or negotiate the client's legal rights or
responsibilities, unless permitted under GR 24(b);
(b) Identification of all fees and costs to be charged to the
client for the services to be performed;
(c) A statement that upon the client's request, the LLLT shall
provide to the client any documents submitted by the client to the
Limited License Legal Technician;
(d) A statement that the Limited License Legal Technician is
not a lawyer and may only perform limited legal services. This
statement shall be on the first page of the contract in minimum
twelve-point bold type print;
(e) A statement describing the Limited License Legal
Technician's duty to protect the confidentiality of information
provided by the client and the Limited License Legal Technician's
work product associated with the services sought or provided by
the Limited License Legal Technician;
(f) A statement that the client has the right to rescind the
contract at any time and receive a full refund of unearned fees.
This statement shall be conspicuously set forth in the contract; and
(g) Any other conditions required by the rules and regulations
of the Board.
(4) A Limited License Legal Technician may not provide
services that exceed the scope of practice authorized by this rule,
and shall inform the client, in such instance, that the client should
seek the services of a lawyer.
(5) A document prepared by an LLLT shall include the
LLLT's name, signature, and license number beneath the signature
of the client.
H. Prohibited Acts. In the course of dealing with clients or
prospective clients, a Limited License Legal Technician shall not:
(1) Make any statement that the Limited License Legal
Technician can or will obtain special favors from or has special
influence with any court or governmental agency;
(2) Retain any fees or costs for services not performed;
(3) Refuse to return documents supplied by, prepared by, or
paid for by the client, upon the request of the client. These
documents must be returned upon request even if there is a fee
dispute between the Limited License Legal Technician and the
client;
(4) Represent or advertise, in connection with the provision of
services, other legal titles or credentials that could cause a client to
believe that the Limited License Legal Technician possesses
professional legal skills beyond those authorized by the license held
by the Limited License Legal Technician;
(5) Represent a client in court proceedings, formal
administrative adjudicative proceedings, or other formal dispute
resolution process, unless permitted by GR 24;
(6) Negotiate the client's legal rights or responsibilities, or
communicate with another person the client's position or convey to
the client the position of another party, unless permitted by GR
24(b);
(7) Provide services to a client in connection with a legal matter
in another state, unless permitted by the laws of that state to
perform such services for the client;
(8) Represent or otherwise provide legal or law related services
to a client, except as permitted by law, this rule or associated rules
and regulations;
(9) Otherwise violate the Limited License Legal Technicians'
Rules of Professional Conduct.
I. Continuing Licensing Requirements
(1) Continuing Education Requirements. Each Limited License
Legal Technician annually must complete the Board-approved
number of credit hours in courses or activities approved by the
Board, provided that the Limited License Legal Technician shall
not be required to comply with this subsection during the calendar
year in which he or she is initially licensed.
(2) Financial Responsibility. Each Limited License Legal
Technician shall annually provide proof of financial responsibility
in such form and in such amount as the Board may by regulation
prescribe.
(3) Annual Fee. Each Limited License Legal Technician shall
pay the annual license fee established by the Board and approved
by the Supreme Court.
J. Existing Law Unchanged. This rule shall in no way modify
existing law prohibiting nonlawyers from practicing law or giving
legal advice other than as authorized under this rule or associated
rules and regulations.
K. Professional Responsibility and Limited License Legal
Technician-Client Relationship
(1) Limited License Legal Technicians acting within the scope
of authority set forth in this rule shall be held to the standard of
care of a Washington lawyer.
(2) Limited License Legal Technicians shall be held to the
ethical standards of the Limited License Legal Technicians' Rules
of Professional Conduct, which shall create an LLLT IOLTA
program for the proper handling of funds coming into the
possession of the Limited License Legal Technician.
(3) The Washington law of attorney-client privilege and law of
a lawyer's fiduciary responsibility to the client shall apply to the
Limited License Legal Technician-client relationship to the same
extent as it would apply to an attorney-client relationship.
Adopted effective September 1, 2012
Rules for Lawyer Discipline (RLD)
The Rules for Lawyer Discipline (RLD) have been superseded by
the Rules for Enforcement of Lawyer Conduct (ELC) effective October 1, 2002.
Rules for Enforcement of Lawyer Conduct (ELC)
Table of Rules
Title 1 – Scope, Jurisdiction, and Definitions
ELC 1.1 Scope of Rules
ELC 1.2 Jurisdiction
ELC 1.3 Definitions
ELC 1.4 No Statute of Limitation
ELC 1.5 Violation of Duties Imposed by These Rules
Title 2 – Organization and Structure
ELC 2.1 Supreme Court
ELC 2.2 Board of Governors
ELC 2.3 Disciplinary Board
ELC 2.4 Review Committees
ELC 2.5 Hearing Officer or Panel
ELC 2.6 Hearing Officer Conduct
ELC 2.7 Conflicts Review Officer
ELC 2.8 Disciplinary Counsel; Special Disciplinary Counsel
ELC 2.9 Adjunct Investigative Counsel
ELC 2.10 Removal of Appointees
ELC 2.11 Compensation and Expenses
ELC 2.12 Communications to the Association Privileged
ELC 2.13 Respondent Lawyer
Title 3 – Access and Notice
ELC 3.1 Open Meetings and Public Disciplinary Information
ELC 3.2 Confidential Disciplinary Information
ELC 3.3 Application to Stipulations, Disability Proceedings, and Diversion Contracts
ELC 3.4 Release or Disclosure of Otherwise Confidential Information
ELC 3.5 Notice of Discipline
ELC 3.6 Maintenance of Records
Title 4 – General Procedural Rules
ELC 4.1 Service of Papers
ELC 4.2 Filing; Orders
ELC 4.3 Papers
ELC 4.4 Computation of Time
ELC 4.5 Stipulation to Extension or Reduction of Time
ELC 4.6 Subpoena Under the Law of Another Jurisdiction
ELC 4.7 Enforcement of Subpoenas
Title 5 – Grievance Investigations and Disposition
ELC 5.1 Grievants
ELC 5.2 Confidential Sources
ELC 5.3 Investigation of Grievance
ELC 5.4 Privileges
ELC 5.5 Discovery Before Formal Complaint
ELC 5.6 Disposition of Grievance
ELC 5.7 Advisory Letter
Title 6 -- Diversion
ELC 6.1 Referral to Diversion
ELC 6.2 Less Serious Misconduct
ELC 6.3 Factors For Diversion
ELC 6.4 Notice to Grievant
ELC 6.5 Diversion Contract
ELC 6.6 Affidavit Supporting Diversion
ELC 6.7 Effect of Non-Participation In Diversion
ELC 6.8 Status of Grievance
ELC 6.9 Termination of Diversion
Title 7 – Interim Procedures
ELC 7.1 Interim Suspension For Conviction of A Crime
ELC 7.2 Interim Suspension In Other Circumstances
ELC 7.3 Automatic Suspension When Respondent Asserting Incapacity
ELC 7.4 Stipulation to Interim Suspension
ELC 7.5 Interim Suspensions Expedited
ELC 7.6 Effective Date of Interim Suspensions
ELC 7.7 Appointment of Custodian to Protect Clients' Interests
Title 8 – Disability Proceedings
ELC 8.1 Action On Adjudication of Incompetency
ELC 8.2 Determination of Incapacity to Practice Law
ELC 8.3 Disability Proceedings During the Course of Disciplinary Proceedings
ELC 8.4 Appeal of Transfer to Disability Inactive Status
ELC 8.5 Stipulated Transfer to Disability Inactive Status
ELC 8.6 Costs In Disability Proceedings
ELC 8.7 Burden and Standard of Proof
ELC 8.8 Reinstatement to Active Status
ELC 8.9 Petition For Limited Guardianship
Title 9 – Resolutions Without Hearing
ELC 9.1 Stipulations
ELC 9.2 Reciprocal Discipline and Disability Inactive Status; Duty to Self-Report
ELC 9.3 Resignation In Lieu of Disbarment
Title 10 – Hearing Procedures
ELC 10.1 General Procedure
ELC 10.2 Hearing Officer or Panel
ELC 10.3 Commencement of Proceedings
ELC 10.4 Notice to Answer
ELC 10.5 Answer
ELC 10.6 Default Proceedings
ELC 10.7 Amendment of Formal Complaint
ELC 10.8 Motions
ELC 10.9 Interim Review
ELC 10.10 Prehearing Dispositive Motions
ELC 10.11 Discovery and Prehearing Procedures
ELC 10.12 Scheduling Hearing
ELC 10.13 Disciplinary Hearing
ELC 10.14 Evidence and Burden of Proof
ELC 10.15 Bifurcated Hearings
ELC 10.16 Decision of Hearing Officer or Panel
Title 11 – Review by Board
ELC 11.1 Scope of Title
ELC 11.2 Decisions Subject to Board Review
ELC 11.3 Sua Sponte Review
ELC 11.4 Transcript of Hearing
ELC 11.5 Record On Review
ELC 11.6 Designation of Bar File Documents and Exhibits
ELC 11.7 Preparation of Bar File Documents and Exhibits
ELC 11.8 Briefs For Reviews Involving Suspension or Disbarment Recommendation
ELC 11.9 Briefs For Reviews Not Involving Suspension or Disbarment Recommendation
ELC 11.10 Supplementing Record on Review
ELC 11.11 Request For Additional Proceedings
ELC 11.12 Decision of Board
ELC 11.13 Chair May Modify Requirements
Title 12 – Review by Supreme Court
ELC 12.1 Applicability of Rules of Appellate Procedure
ELC 12.2 Methods of Seeking Review
ELC 12.3 Appeal
ELC 12.4 Discretionary Review
ELC 12.5 Record to Supreme Court
ELC 12.6 Briefs
ELC 12.7 Argument
ELC 12.8 Effective Date of Opinion
ELC 12.9 Violation of Rules
Title 13 – Sanctions and Remedies
ELC 13.1 Sanctions and Remedies
ELC 13.2 Effective Date of Suspensions and Disbarments
ELC 13.3 Suspension
ELC 13.4 Reprimand
ELC 13.5 Admonition
ELC 13.6 Discipline For Cumulative Admonitions
ELC 13.7 Restitution
ELC 13.8 Probation
ELC 13.9 Costs and Expenses
Title 14 – Duties on Suspension or Disbarment
ELC 14.1 Notice to Clients and Others; Providing Client Property
ELC 14.2 Lawyer to Discontinue Practice
ELC 14.3 Affidavit of Compliance
ELC 14.4 Lawyer to Keep Records of Compliance
Title 15 – Audits and Trust Account Overdraft Notification
ELC 15.1 Audit and Investigation of Books and Records
ELC 15.2 Cooperation of Lawyer
ELC 15.3 Disclosure
ELC 15.4 Trust Account Overdraft Notification
ELC 15.5 Declaration or Questionnaire
ELC 15.6 Regulations
Title 16 – Effect of These Rules On Pending Proceedings
ELC 16.1 Effect On Pending Proceedings
JUDICIAL INFORMATION SYSTEM
COMMITTEE RULES (JISCR)
TABLE OF RULES
Rule
1 Judicial Information System
2 Composition
3 Staff
4 Budgets
5 Standard Data Elements
6 Reports
7 Codes and Case Numbers
8 Retention
9 Communications Link With Other Systems
10 Attorney Identification Numbers
11 Security, Privacy, and Confidentiality
12 Dissemination of Court Information
13 Local Court Systems
14 Control of Data Processing Equipment
15 Data Dissemination of Computer-Based Court Information
16 Record and Dissemination Data Processing
17 Effective Date
18 Adding Records to the Judicial Information System
ELC 1.1
SCOPE OF RULES
These rules govern the procedure by which a lawyer may be
subjected to disciplinary sanctions or actions for violation
of the Rules of Professional Conduct adopted by the
Washington Supreme Court.
[Adopted effective October 1, 2002.]
ELC 1.2
JURISDICTION
Except as provided in RPC 8.5(c), any lawyer admitted, or permitted by rule,
to practice law in this state, and any lawyer specially admitted by a court of
this state for a particular case, is subject to these Rules for Enforcement of
Lawyer Conduct. Jurisdiction exists regardless of the lawyer's residency or
authority to practice law in this state.
[Adopted effective October 1, 2002; amended effective September 1, 2010]
ELC 1.3
DEFINITIONS
Unless the context clearly indicates otherwise, terms used
in these rules have the following meanings:
(a) "Association" means the Washington State Bar
Association.
(b) "Bar file" means the pleadings, motions, rulings,
decisions, and other formal papers filed in a proceeding.
(c) "Board" when used alone means the Disciplinary Board.
(d) “Chair” when used alone means the Chair of the
Disciplinary Board.
(e) “Clerk” when used alone means the Clerk to the
Disciplinary Board.
(f) “Disciplinary action” means sanctions under rule 13.1
and admonitions under rule 13.5.
(g) “Final” means no review has been sought in a timely
fashion or all appeals have been concluded.
(h) “Grievant” means the person or entity who files a
grievance, except for a confidential source under rule 5.2.
(i) “Hearing officer” means the person assigned under rule
10.2(a)(1) or, when a hearing panel has been assigned, the
hearing panel chair.
(j) “Mental or physical incapacity” includes, but is not
limited to, insanity, mental illness, senility, or
debilitating use of alcohol or drugs.
(k) "Panel" means a hearing panel under rule 10.2(a)(2).
(l) “Party” means disciplinary counsel or respondent, except
in rules 2.3(h) and 2.6(e) “party” also includes a grievant.
(m) “Respondent” means a lawyer against whom a grievance is
filed or a lawyer investigated by disciplinary counsel.
(n) “APR” means the Admission to Practice Rules.
(o) “CR” means the Superior Court Civil Rules.
(p) “RAP” means the Rules of Appellate Procedure.
(q) “RPC” means the Rules of Professional Conduct adopted by
the Washington Supreme Court.
(r) Words of authority.
(1) “May” means “has discretion to,” “has a right to,” or
“is permitted to”.
(2) “Must” means “is required to”.
(3) “Should” means recommended but not required, except:
(A)in rules 2.3(h) and 2.6, “should” has the meaning
ascribed to it in the Code of Judicial Conduct; and
(B) in title 12, “should” has the meaning ascribed to it in
the Rules of Appellate Procedure.
[Adopted effective October 1, 2002.]
ELC 1.4
NO STATUTE OF LIMITATION
No statute of limitation or other time limitation restricts
filing a grievance or bringing a proceeding under these
rules, but the passage of time since an act of misconduct
occurred may be considered in determining what if any action
or sanction is warranted.
[Adopted effective October 1, 2002.]
ELC 1.5
VIOLATION OF DUTIES IMPOSED BY THESE RULES
A lawyer violates RPC 8.4(l) and may be disciplined under these
rules for violating duties imposed by these rules, including but
not limited to the following duties:
· respond to inquiries or requests about matters under investigation, rule 5.3(f);
· file an answer to a formal complaint or to an amendment to a formal
complaint, rule 10.5;
· cooperate with discovery and comply with hearing orders, rules 10.11(g) and 5.5;
· attend a hearing and bring materials requested by disciplinary counsel,
rule 10.13(b) and (c);
· respond to subpoenas and comply with orders enforcing subpoenas, rule 10.13(e);
· notify clients and others of inability to act, rule 14.1;
· discontinue practice, rule 14.2;
· file an affidavit of compliance, rule 14.3;
· maintain confidentiality, rule 3.2(f);
· report being disciplined or transferred to disability inactive status in another
jurisdiction, rule 9.2(a);
· cooperate with an examination of books and records, rule 15.2;
· notify the Association of a trust account overdraft, rule 15.4(d);
· file a declaration or questionnaire certifying compliance with RPC 1.15A, rule 15.5;
· comply with conditions of probation, rule 13.8;
· comply with conditions of a stipulation, rule 9.1;
· pay restitution, rule 13.7; or
· pay costs, rule 5.3(f) or 13.9.
[Adopted effective October 1, 2002; September 1, 2006.]
RULE 1
JUDICIAL INFORMATION SYSTEM
It is the intent of the Supreme Court that a statewide Judicial
Information System be developed. The system is to be designed and operated
by the Administrator for the Courts under the direction of the Judicial
Information System Committee and with the approval of the Supreme Court
pursuant to RCW 2.56. The system is to serve the courts of the state of
Washington.
[Effective May 15, 1976.]
RULE 2
COMPOSITION
(a) Membership. The Judicial Information System Committee (JISC) shall be
appointed by the Chief Justice. The Chief Justice will consider for appointment
those individuals who have been suggested by representative groups and
associations from within the judicial system but shall not be bound thereby. In
addition, the Chief Justice shall consider for appointment only those
individuals who have demonstrated an interest and commitment to judicial
administration and to automation of judicial systems and functions. The
committee shall be composed of four members from the appellate court level
(Supreme Court and Court of Appeals), five members from the superior court
level, two of whom shall be members of the Superior Court Judges' Association,
and one of whom shall be a member of the Washington Association of Juvenile
Court Administrators, five members from the courts of limited jurisdiction
level, one of whom shall be a member of the Misdemeanant Corrections
Association, and three at large members from outside the judiciary, one of whom
will be a member of the Washington State Bar Association, one of whom will be a
member of the Washington Association of Sheriffs and Police Chiefs, and one of
whom will be a member of the Washington State Association of Prosecuting Attorneys.
(b) Terms of Office. The term of membership for those who are appointed to
represent specific organizations shall be for a term of 3 years with the
initial term as determined by lot, staggered so as to insure that an equal
number of terms expire each year. Any vacancy in the membership of the
committee shall be filled in the same manner in which the original appointment
was made and the term of membership shall expire on the same date as the
original appointment expiration date.
(c) Operation. The Supreme Court Justice shall be the chairperson. The
members of the committee shall elect a vice-chairperson from among themselves.
Meetings of the committee shall be called regularly and at a minimum of four
times per year at the discretion of the chair. Any members with two unexcused
absences from regularly scheduled JISC meetings during any calendar year shall
be requested to resign and the respective association shall appoint a successor
to fulfill the unexpired term. User advisory committees shall be established
for each level of court and will be representative of the users at each level.
Ad hoc committees shall also be established for the purpose of monitoring
specific projects undertaken by the Judicial Information System.
[Adopted effective July 1, 1976; amended effective July 1, 1987; June 4, 1996;
December 29, 1998; February 11, 2010.]
RULE 3
STAFF
Staff for the Judicial Information System Committee will be provided by
and be responsible to the Administrator for the Courts who will be charged
with providing operational, statistical, and other information to
legitimate and appropriate users of judicial information.
[Effective May 15, 1976.]
RULE 4
BUDGETS
The Administrator for the Courts, under the direction of the Judicial
Information System Committee, and with the approval of the Supreme Court,
shall prepare funding requests for personnel, hardware, and software as
required for a phased implementation of the Judicial Information System.
Any budget requests prepared by the Administrator for the Courts shall
address the issues of control and dissemination of data from court files,
developmental and operational priorities, a clear definition of operational
expenses and security, and privacy of information and facilities within the
system.
[Effective May 15, 1976.]
RULE 5
STANDARD DATA ELEMENTS
A standard court data element dictionary for the Judicial Information
System shall be prepared and maintained by the Administrator for the Courts
with the approval of the Judicial Information System Committee. Any
modifications, additions, or deletions from the standard court data element
dictionary must be reviewed and approved by the Judicial Information System
Committee.
[Effective May 15, 1976.]
RULE 6
REPORTS
The Administrator for the Courts shall furnish to the courts and clerks
of the state standard report formats as recommended and approved by the
Judicial Information System Committee. Records and reports either in
computerized or manual formats shall be in accordance with the standard
court data elements established by the Judicial Information System
Committee and consistent with the definitions contained therein.
[Effective May 15, 1976.]
RULE 7
CODES AND CASE NUMBERS
The Administrator for the Courts shall establish, with the approval of
the Judicial Information System Committee, a uniform set of codes and case
numbering systems for criminal charges, civil actions, juvenile referrals,
attorney identification, and standard disposition identification codes.
[Effective May 15, 1976.]
RULE 8
RETENTION
The Administrator for the Courts shall establish retention periods for
all computerized records based upon the recommendations of the Judicial
Information System Committee and consistent with state law.
[Effective May 15, 1976.]
RULE 9
COMMUNICATIONS LINK WITH OTHER SYSTEMS
The Judicial Information System will serve as the communications link
for the courts with all local, regional, statewide, and national noncourt
systems. The Judicial Information System shall perform all functions
relating to the transfer of computerized judicial data or information
except as specifically approved by the Supreme Court upon the
recommendations of the Judicial Information System Committee.
[Effective May 15, 1976.]
RULE 10
ATTORNEY IDENTIFICATION NUMBERS
The Office of the Administrator for the Courts will assign and maintain
a uniform attorney identification number consistent with the number
currently utilized by the Washington State Bar Association. The use of such
code numbers will be subject to rules promulgated by the Supreme Court upon
recommendations by the Judicial Information System Committee and the Board
of Governors of the Washington State Bar Association.
[Effective May 15, 1976.]
RULE 11
SECURITY, PRIVACY, AND CONFIDENTIALITY
All court record systems must conform to the privacy and
confidentiality rules as promulgated by the Supreme Court upon the
recommendation of the Judicial Information System Committee, which rules
shall be consistent with all applicable law relating to public records. Any
modifications, additions, or deletions from the established rules must be
reviewed by the Judicial Information System Committee and approved by the
Supreme Court. Additionally:
(a) Courts obtaining information from computerized files subject to
special security and privacy administrative rules or legislative direction
must insure that all such rules or legislative enactments are followed in
the handling of such information.
(b) In all automated systems, duplicate records must be prepared
regularly and stored separately and a transaction log kept of all record
changes covering the entire time period since the preparation of the last
duplicate set of records.
(c) The Office of the Administrator for the Courts will maintain a
library of court system documentation for the state. All automated
information systems which have received approval from the Supreme Court to
collect, store, and/or disseminate computerized judicial information must
submit to the Office of the Administrator for the Courts and maintain on
file a copy of all system documentation related to the collection, storage,
and dissemination of such information.
[Effective May 15, 1976.]
RULE 12
DISSEMINATION OF COURT INFORMATION
The Judicial Information System Committee will adopt rules, consistent
with all applicable law relating to public records, governing the release
of information contained within the Judicial Information System. Such rules
and any amendments thereto shall be forwarded to the Supreme Court and,
unless altered by the court or returned to the Judicial Information System
Committee for its further consideration and recommendations, shall take
effect 45 days after the receipt of such rules by the Supreme Court.
[Effective May 15, 1976.]
RULE 13
LOCAL COURT SYSTEMS
Counties or cities wishing to establish automated court record systems
shall provide advance notice of the proposed development to the Judicial
Information System Committee and the Office of the Administrator for the
Courts 90 days prior to the commencement of such projects for the purpose
of review and approval.
[Effective May 15, 1976.]
RULE 14
CONTROL OF DATA PROCESSING EQUIPMENT
Data processing for courts shall be processed on computer equipment
managed and controlled by the courts. In exceptional instances where
extreme care has been taken to insure the integrity of the internal
function of the courts, explicit approval may be obtained from the Supreme
Court upon the recommendation of the Administrator for the Courts and the
Judicial Information System Committee to utilize facilities not totally
managed and controlled by the courts.
[Effective May 15, 1976.]
RULE 15
DATA DISSEMINATION OF COMPUTER-BASED
COURT INFORMATION
It is declared to be the policy of the courts to facilitate public
access to court records, provided such disclosures in no way present an
unreasonable invasion of personal privacy and will not be unduly burdensome
to the ongoing business of the courts.
Due to the confidential nature of some court information, authority
over the dissemination of such information shall be exercised by the
judicial branch. This rule establishes the minimum criteria to be met by
each information request before allowing dissemination.
(a) Application. This rule applies to all requests for computer-based
court information submitted by an individual, as well as public and private
associations and agencies. This rule |
