GR 9 COVER SHEET   

Suggested Amendments

RULES OF PROFESSIONAL CONDUCT (RPC) Rules 1.0B, 1.7, 1.10 and 1.13

Submitted by the Washington State Bar Association

A.           Name of Proponent:

Washington State Bar Association, Committee on Professional Ethics

B.           Spokesperson:

Sunitha Anjilvel, Acting President, Washington State Bar Association, 1325 4th

Avenue, Suite 600, Seattle, WA 98101-2539

Terra Nevitt, Executive Director, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539

WSBA Staff Contact:

Jeanne Marie Clavere, Senior Professional Responsibility Counsel Washington State Bar Association

1325 Fourth Avenue, Suite 600

Seattle, WA 98101-2539

jeannec@wsba.org • 206-727-8298

C.           Purpose:

These suggested revisions to the Rules of Professional Conduct are meant to address inconsistencies between RPC 1.7(a) and Washington court decisions on potential conflicts arising from lawyers in a government law office representing separate government agencies in adjudicated disputes.

These suggestions relate to situations in which lawyers in a single government law office—such as the Office of the Attorney General or a city attorney’s office— represent separate subdivisions of that government adverse to each other in litigation or other adjudicated disputes. RPC 1.7(a) states that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Although RPC 1.7(b) allows clients to consent to certain conflicts of interest, RPC 1.7(b)(3) limits those waivers to situations where “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.”

Notwithstanding the RPC 1.7(b)(3) ban on consents to conflicts in litigation, for at least 40 years the Washington State Supreme Court and the Court of Appeals have declined to disqualify lawyers from the Attorney General’s Office or other government law offices when they represent different government officials or agencies in intra-governmental disputes. For example, in Sammamish Community Municipal Corporation v. City of Bellevue, Division I Court of Appeals Judge Joseph Coleman wrote:

Washington courts have recognized the ‘difference between the relationship of a lawyer in a private law firm and a lawyer in a public law firm such as a prosecuting attorney, public defender, or attorney general’ with respect to compliance with the conflict-of-interest rules. Thus, it is accepted practice for different attorneys within the same public office to represent different clients with conflicting or potentially conflicting interests, so long as an effective screening mechanism exists within the office sufficient to keep the clients' interests separate.

(References omitted.) See also, Wash. Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 480-81 (1983); Amoss v. Univ. of Washington, 40 Wn.App. 666 (1985); Sherman v. Univ. of Washington, 128 Wn.2d 164 (1996).

Nevertheless, these Washington Supreme Court and Court of Appeals decisions are not consistent with RPC 1.7(a), which, combined with RPC 1.10 (imputation), does not allow the same law office to represent two sides of a dispute “in the same litigation or other proceeding before a tribunal.” In practice, the inconsistency between RPC 1.7(a) and Washington caselaw leads to confusion among lawyers and leads to trial court disqualifications of lawyers that should not occur because of the appellate court decisions.

It would be helpful to clarify the situation by conforming Washington’s RPC 1.7 and RPC 1.10 to Washington practice. This would reduce confusion among in-house government lawyers and eliminate both the potential for disqualifications and for disciplinary grievances filed against government attorneys. The suggested amendments also seek to address the lack of consistent language and definitions in the ABA Model Rules relating to governments, government sub-entities, and government lawyers.

Specific Recommendations

The language changes were initially suggested by the Washington State Association of Municipal Attorneys and further developed by the Washington State Bar Association’s Committee on Professional Ethics. Drafting involved consultation with the Office of the Attorney General, the Washington Association of Prosecuting Attorneys, and the Government Lawyers Bar Association.

The accompanying suggestions propose:

·         A suggested new Washington definition in RPC 1.0B(f)

·         A new Washington RPC 1.7(c)

·         A new Washington RPC 1.7 Comment [42]

·         An amendment to Washington RPC 1.10(a)

·         An amendment to Washington RPC 1.13 Comment [9]

D.           Hearing:  A hearing is not requested.

E.           Expedited Consideration:  Expedited consideration is not requested.