Hunter M. Abell, President,
Washington State Bar Association, 1325 4th Avenue, Suite 600,
Seattle, WA98101-2539
Terra Nevitt, Executive Director,
Washington State Bar Association, 1325 4th Avenue, Suite 600,
Seattle, WA98101-2539
Monte Jewell, Chair, Committee on
Professional Ethics, Project DVORA/Jewish Family Service of Seattle, 1601 16th Avenue, Seattle, WA 98122
Jeanne Marie Clavere, Senior
Professional Responsibility Counsel, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539
C.Purpose: These suggested
revisions to the “Special Circumstances” Comments to RPC 1.2 and RPC 8.4 would replace
existing language that focuses on lawyer counsel about cannabis. The new
broader language protects lawyer counsel and assistance to clients about
conduct the lawyer reasonably believes is permitted under Washington laws (for
example laws related to reproductive health care and gender-affirming care as
well as cannabis), even if that guidance might be viewed as violating the laws
of anotherjurisdiction.
Background
In 2022, the Office of the Attorney
General communicated concerns to the WSBA Board of Governors and suggested
revisions to the “Special Circumstances” Comments to RPC 1.2 and RPC 8.4. That
office recommended adjustments to RPC 1.2 and 8.4 aimed at addressing
situations in which a Washington lawyer gives assistance on reproductive rights
that is treated by a prosecutor in another jurisdiction as possible criminal
activity. An example would be advising a health care provider, a parent, or
minor child, practicing, or residing in another state, about providing, or
obtaining an abortion or gender-affirming care in Washington where such care
violate the laws in the other jurisdiction. In such a scenario, a
family member, political group, member of
the public, opposing party, or prosecutor might file one or more disciplinary grievances
against the Washington lawyer.
Attorneys general and prosecutors in some
jurisdictions already are acting to zealously enforce statutes criminalizing
access to reproductive health services and gender affirming care. In
jurisdictions that criminalize reproductive health care and assistance to
patients/clients, law enforcement routinely investigates these “crimes” using
digital evidence. Washington lawyers thus have credible concerns that law
enforcement outside of Washington will investigate conduct associated with
guidance given by Washington attorneys on Washington reproductive rights law.
In addition, Washington lawyers should not expect that abortion-ban statutes
enacted outside Washington state would include express exceptions for
communications between lawyers and clients.
Two primary RPCs are involved
here. RPC 1.2(d) states:
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.
Comment [18] to Washington’s RPC 1.2
currently addresses “Special Circumstances Presented by Washington’s Marijuana
Laws,” asfollows:
[18] Under Paragraph (d), a lawyer may
counsel a client regarding Washington’s marijuana laws and may assist a client
in conduct that the lawyer reasonably believes is permitted by those laws. If
Washington law conflicts with federal or tribal law, the lawyer shall also advise
the client regarding the related federal or tribal law andpolicy.
RPC
8.4 (b) states that it is professional misconduct for a lawyer to “commit a
criminal act that reflects adversely on the lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects….”
Comment
[8] to Washington’s RPC 8.4 currently states:
[8] A lawyer who counsels a client
regarding Washington’s marijuana laws or assists a client in conduct that the
lawyer reasonably believes
is permitted by those laws does not
thereby violate RPC 8.4. See also RPC 1.2 Washington Comment [18].
Recommendation
At their August 12, 2023, meeting, the
WSBA Board of Governors approved a suggestion from the Committee on
Professional Ethics that the Washington Supreme Court revise the “special
circumstances” Comments to RPC 1.2 and RPC 8.4. The replacement Comments would
include broader language encompassing more than just guidance on Washington’s
cannabis laws. The Comments to be replaced were adopted in 2014 (updated in
2018 and 2023) to provide clarification to Washington lawyers who advise
clients on Washington cannabis laws that their counsel is not in violation of
the RPCs, notwithstanding the fact that cannabis is a controlled substance
under federal law and many tribal laws. This proposal recognizes that the
issues of criminalized reproductive care and gender-affirming care in other
states presents similarly fundamental, practical, and urgent questions under
the RPCs for members of the Washington Bar.
Redline and clean versions of the
suggested rules are attached for consideration.
D.Hearing: A hearing is notrequested.
E.Expedited Consideration:Expedited
consideration is notrequested.
F.SupportingMaterial:
·Exhibit A: Suggested Amendment to Comment [18]
to RPC 1.2, redline and cleanversions.
·Exhibit B: Suggested Amendment to Comment [8] to
RPC 8.4, redline and clean versions.