Cover Sheet for Proposed Amendment to RPC 6.1

Proponent

Kevin Flannery, WSBA #54890

Spokesperson

Kevin Flannery, WSBA #54890

Contact Information for Spokesperson 

kflannery@stollberne.com

Purpose of the Proposed Amendment

RPC 6.1 sets a non-mandatory, aspirational benchmark for Washington lawyers to provide pro bono publico service and defines the ways in which lawyers may provide that service.  The rule also establishes a mechanism for the Washington State Bar Association to honor lawyers who provide a certain amount of pro bono publico service. 

This proposed amendment would broaden the scope of the rule such that pro bono publico service also encompasses a lawyer’s provision of court-appointed representation to a person entitled to counsel at public expense, regardless of whether the lawyer is paid to accept and carry forth the appointment.  The proposed amendment would also make a more technical edit to replace an outdated phrase with more inclusive language when referring to individuals affected by domestic violence.  The court should adopt this proposed amendment for three related reasons. 

First, Washington is experiencing an urgent crisis in recruiting and retaining public defense attorneys.  Experienced public defenders are leaving public defense because of excessive caseloads and difficult working conditions.  When no qualified attorney is available to provide court-appointed representation, cases—and lives—languish.[1]  Moreover, Washington’s existing caseload limits under the Standards for Indigent Defense will very likely need to be reconsidered—and substantially reduced—in light of a new comprehensive workload study that was recently completed.[2]  To address both the current shortage of public defense attorneys and the likely need for additional public defense attorneys in the near future, the court and the bar association must encourage more lawyers working in private practice to provide court-appointed representation.  This proposed amendment to RPC 6.1 would place a modicum of substance behind that encouragement and formally communicate to the private bar the need for lawyers to engage in public defense work. 

          Second, providing court-appointed representation is meaningful legal work that can have positive, life-changing effects for the client, their families, and the community.  RPC 6.1 exists to help prod lawyers to represent more than just wealthy interests.  The rule tells lawyers that they should aspire to spend at least a minimum number of hours per year advocating for those with limited means.  Representing indigent Washingtonians facing criminal charges, involuntary civil commitment, family separation, or other deprivations of liberty belongs in this category of work.  The fact that an appointed attorney is paid (and can therefore—thankfully—make out a living and continue to take future appointments) does not change or detract from the nature of the representation as a public service. 

          Third, ethics rules generally prohibit full-time line defenders from providing pro bono publico service and gaining a commendation.[3]  Attorneys who provide court‑appointed representation in criminal and juvenile offender cases are bound by the Standards for Indigent Defense.  Standard 3.2 provides that “[t]he caseload of public defense attorneys shall allow each lawyer to give each client the time and effort necessary to ensure effective representation,” and Standard 3.4 sets maximum caseloads for full-time public defense attorneys.  Public defense attorneys must also comply with RPC 1.1 and RPC 1.3, which require that they provide competent and diligent representation.  As Comment [2] to RPC 1.3 puts it, “A lawyer’s workload must be controlled so that each matter can be handled competently.”  In practice, these overlapping professional responsibility requirements generally prohibit full-time public defense attorneys from providing any other legal services, including those contemplated by paragraphs (a)(1)-(2) and (b)(1)-(2).  Additionally, while undertaking system‑improvement efforts under paragraph (b)(3) may not conflict with a public defense attorney’s obligation under Standard 3.4 to numerically limit the number of cases that they handle, system‑improvement efforts will still add work to a workload that unquestionably “must be controlled” to ensure that clients receive competent and constitutionally guaranteed effective representation.  Comment [2] to RPC 1.3.  In other words, full-time public defense attorneys—already stretched too thin—will rarely have the time to dedicate to activities under paragraph (b)(3).  The consequence is that a full-time public defense attorney appearing on behalf of dozens or even hundreds of poor and marginalized Washingtonians each year will never receive a commendation under RPC 6.1.  This proposed amendment fixes that anomaly. 

          As a final note, no one should think that the court’s adoption of this proposed amendment to RPC 6.1 will solve Washington’s public defense crisis.  Adoption of this proposed amendment is only a very small step, among many more to come, that are necessary to bring balance and dignity to a legal system that has historically treated public defense as the dregs of legal work. 

Hearing

A hearing is not requested.

Expedited Consideration

Expedited consideration is requested, given the urgency of the public defense crisis.