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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.]
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