GR 9 COVER SHEET

Proposed New Rule CrR 4.11

PROPONENT: Proposed new rule CrR 4.11 is submitted and endorsed solely by the Adult Criminal Committee of the BJA Court Recovery Task Force. This proposal does not necessarily reflect all of the BJA Court Recovery Task Force members’ perspectives.

SPOKESPERSON: Amy Muth, Chair; amy@amymuthlaw.com

PURPOSE: The proposed rule provides a different hearing notice procedure for courts to follow before issuing a bench warrant for non-appearance in light of the adoption of CrR 3.4. Historically, defendants have been provided notice of court dates solely through the court either on the record or via a summons. With the adoption of CrR 3.4, however, defendants may now appear through counsel unless they have received prior notice that their physical presence is required. When defendants appear through counsel, defense counsel provides notice of new court dates to the defendant, not the court.

 CrR 3.4 has created substantial and significant benefits for courts, attorneys, and defendants; courts can process continuance requests much more efficiently, attorneys save courtroom time, and defendants do not have to take time off from work and travel to court for routine matters. However, when defense counsel provides notice of a hearing for which the defendant fails to appear, defense counsel is ethically prohibited from revealing whether their client received actual notice or when notice was provided, because doing so causes them to reveal attorney-client confidential communications in violation of RPCs 1.6 and 3.3. The Washington State Bar Association Committee on Professional Ethics reached the same conclusion when previously asked to examine this issue:

The Committee reviewed your inquiry concerning informal meetings between you as a public defender and the presiding judge, during which the judge asks whether clients have been meeting with you. The Committee was of the opinion that such information would constitute confidences or secrets of your client, and that pursuant to RPC 1.6 you could not disclose such information unless your client consented to disclosure or you were ordered to do so by the court. The Committee was further of the opinion that RPC 3.3 would prohibit you from making evasive answers to such questions.

WSBA Advisory Op. 1311.

Revealing these communications also risks placing defense counsel in the position of becoming a witness, potentially leading to withdrawal from the case and appointment or retention of a new attorney, which adds court costs and causes delays.

Because of the risks and collateral consequences of issuing a warrant for arrest, when the defendant’s notice is constructive, many stakeholders have asked courts to attempt additional service of notice prior to issuing a bench warrant for failure to appear. If service is mailed by the court, the court can confirm service was timely completed without requiring a declaration or testimony from defense counsel. Our proposed rule ensures that a mailed summons for the hearing has been attempted prior to issuance of a bench warrant when notice of that court date was provided through defense counsel. This process preserves the integrity of the attorney-client privilege while retaining the efficiencies of CrR 3.4. This process is not intended to apply when the defendant has been provided other forms of notice, such as when the court instructs the defendant of their hearing date on the record in court.

Under this rule, when a defendant fails to appear for a hearing for which notice was provided only through defense counsel, the court will issue a summons to the defendant to appear for a new hearing.  The court will also note the nonappearance so as to suspend the time for speedy trial consistent with CrR 3.3(c)(2)(ii). Should the defendant fail to appear for the new hearing, the court has provided two forms of notice to the defendant and a bench warrant may issue at the court’s discretion. We believe this proposal strikes the right balance between preserving the benefits of CrR 3.4 and ensuring that defense counsel follow through on their ethical obligations.

Regarding where to place the proposed language in the court rules, the Adult Criminal Committee discussed at length whether this proposal should be submitted as a proposed amendment to CrR 3.4 or as a stand-alone rule.  The Adult Criminal Committee decided to submit this proposal as a separate rule because there are other proposals seeking to amend CrR 3.4, and it was unclear to the Adult Criminal Committee where the proposed language would best fit.  Otherwise, as CrR 3.4 is currently written, the proposed language could be added to CrR 3.4(d). 

HEARING: We do not believe that a public hearing is necessary.

EXPEDITED CONSIDERATION: We do not believe that expedited consideration is necessary.