Suggested Amendments to

 

RULES OF PROFESSIONAL CONDUCT (RPC)

 

Rule 1.8(e) and Comments

 

 

 

 

A.    Proponent:  Washington State Bar Association, Board of Governors, Committee on Professional Ethics

 

B.     Spokepersons:

 

Brian Tollefson, President, Washington State Bar Association, 1325 4^th Avenue, Suite 600, Seattle, WA  98101-2539

 

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

 

Jeanne Marie Clavere, Professional Responsibility Counsel, Washington State Bar Association, 1325 4^th Avenue, Suite 600, Seattle, WA  98101-2539

 

C.    Purpose: Based on changes to the Model Rules of Professional Conduct, the amendment would permit lawyers to pay court costs and expenses of litigation on behalf of indigent clients, and to provide modest gifts for living expenses to indigent clients in limited circumstances.

 

Background

 

On April 30, 2020, Chief Justice Debra Stephens asked for review of potential regulatory modifications to improve access to justice during the Covid-19 pandemic, including whether to amend 1.8(e) to permit attorneys to provide financial assistance to clients in limited circumstances. See Memo to WSBA President from WSBA Chief Disciplinary Counsel and Chief Regulatory Counsel (May 8, 2020) (attached hereto as Exhibit A) and Supplemental Memo to WSBA President from WSBA Chief Disciplinary Counsel (August 5, 2020) (attached hereto as Exhibit B).

 

The WSBA Office of Disciplinary Counsel, in a memo dated May 8, 2020 (Exhibit A), provided information regarding the complicated history of attempted modifications of this Rule. Furthermore, the Chief Disciplinary Counsel’s August 5, 2020 memo to the WSBA President summarized updates regarding the developments in New York and at the American Bar Association which had changed the analytic landscape around the issue. See Exhibit B. Pursuant to a request by the WSBA Board of Governors then President Rajeev Majumdar on August 6, 2020, the Committee on Professional Ethics (CPE) formed a subcommittee and studied the changes to ABA Model Rule 1.8(e) and commentary as well as the history of Washington RPC 1.8(e), the Washington revised Comment [10] and additional Washington Comment [21]. The CPE then consulted with key WSBA and public stakeholders including the Northwest Justice Project, Pro Bono Council of the Washington Alliance for Public Justice, and WSBA Chief Disciplinary Counsel.

 

Recommendation

 

The CPE concurred with the reasoning of the ABA Standing Committees on Ethics and Professional Responsibility and Legal Aid and Indigent Defendants as described in their August 2020 report.  (https://www.americanbar.org/content/dam/aba/directories/policy/annual-2020/107-annual-2020.pdf, last accessed December 7, 2021).  The CPE concluded that a financial assistance exception in RPC 1.8(e) could serve to increase access to justice for the public and serve the public interest.

 

The CPE recommended to the WSBA Board of Governors appropriate changes to Washington RPC 1.8(e) and comments, (redlined and clean versions attached hereto as Exhibits C and D). These recommended changes differ from the new ABA Model Rule in the following key respects:

 

·         The word “pro bono” as a modifier is removed from recommended Subsection (3) for lawyers representing clients through a non-profit legal service, public interest organization, law school clinical, or pro bono program to clarify that attorneys employed as staff in such programs are included in the rule together with private attorneys who are volunteering with such programs. 

·         Model Rule 1.8(e)(2) only allows for an attorney’s payment of litigation and court expenses in the case of an indigent client and pro bono representation.  The CPE recommends that such payment be allowed in other non-profit contexts as well, for instance by staff attorneys of legal aid organizations, law school clinics, and others.   

·         Washington Comment [21] and Comment [10] [Washington Revision] are amended and combined into a new Comment [10] [Washington Revision] to clarify that the prohibition in Rule 1.8(e) is intended to prevent attorneys from influencing clients to pursue litigation primarily for the private financial gain or to advance other interests of the attorney. The CPE does not believe the public interest is served by discouraging litigants who lack resources from pursuing otherwise meritorious lawsuits.

·         Washington Comment [21] and Comment [10] [Washington Revision] are also amended and combined into a new Comment [10] [Washington Revision] to preserve the original interpretation of RPC 1.8 that, other than in indigent client context, the client remains ultimately liable.

·         The proposed Washington revised Comment [11] mirrors, with slight modifications, ABA Model Comment [11]. Proposed Washington Comment [12] and [13] have the same language as Model Rules of Professional Conduct RPC 1.8 Comments [12] and [13].

 

The CPE concluded that creating a clear, permissible financial assistance exception in RPC 1.8(e) will serve the public and their lawyers who want to ethically provide financial assistance to their clients within the parameters of RPC 1.8(e).

 

At their board meeting dated January 13, 2022, the WSBA Board of Governors approved the request by the Committee on Professional Ethics to submit these amendments to the Washington Supreme Court for consideration.

 

D.    Hearing:  A hearing is not requested.

 

E.     Expedited Consideration:  Expedited consideration is not requested.

 

F.     Supporting Material: 

 

·         Exhibit A:  Memo to WSBA President from WSBA Chief Disciplinary Counsel and Chief Regulatory Counsel dated May 8, 2020.

·         Exhibit B:  Supplemental Memo to WSBA President from WSBA Chief Disciplinary Counsel dated August 5, 2020.

·         Exhibit C: Proposed redline changes to RPC 1.8(e) and Comments

·         Exhibit D: Proposed clean changes to RPC 1.8(e) and Comments