Proposed Rules Archives

• Proposed Changes to ELC - All - Rules for Enforcement of Lawyer Conduct (in Word Format)
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Submitted by the Board of Governors of the Washington State Bar Association

Purpose: This proposal is a substantial revision of Washington’s Rules of Professional Conduct (RPC). Washington’s current rules—based primarily on the ABA Model Rules of Professional Conduct—were adopted in 1985. The ABA significantly revised the Model Rules in 2002 and 2003 as a result of the work of the ABA’s Ethics 2000 Commission, the ABA Commission on Multijurisdictional Practice, and the ABA Task Force on Corporate Responsibility. In 2003, the WSBA Board of Governors appointed a Special Committee for the Evaluation of the Rules of Professional Conduct (Ethics 2003 Committee), composed of knowledgeable lawyers with diverse experience in the practice of law, along with a nonlawyer member. The Board directed the Committee to undertake a comprehensive study and evaluation of the revised ABA Model Rules, to consider the suitability of adopting the ABA Ethics 2000 revisions, and to evaluate the desirability of other appropriate changes to Washington’s RPC. The Ethics 2003 Committee issued a report with its recommendations in March 2004. A copy of the report of the Committee, with a detailed discussion of the various recommended changes, accompanies this submission and is available at the WSBA website (referenced below). The great majority of the Committee’s recommendations were approved and adopted by the Board of Governors. Instances in which the Board revised the Committee’s recommendation are noted in the Supplement to the Ethics 2003 Report, which also accompanies this submission and is available at the WSBA website (referenced below).

Recognizing the importance of consistency and uniformity in rules regulating lawyer conduct, the Ethics 2003 Committee recommended adoption of the Model Rules, together with associated commentary, unless there was a compelling and articulable reason for deviation. And, in general, the content of this proposal substantially parallels the ABA Model Rules in form and substance. In some instances the Committee and the Board concluded that the Model Rules are silent on a subject that has traditionally and successfully been addressed in Washington, or that an existing Rule is clearly more suited to the regulation of Washington lawyers than its Model Rule counterpart. In such instances, it is suggested that existing RPC provisions be retained or that new Washington-specific provisions be adopted.

Among the significant elements of the submission are the following:

• Inclusion of official Comments throughout the RPC, based on the comments to the Model Rules, to provide guidance on the interpretation and application of the rules.

• Substitution of the term “zealous” in the Model Rules Preamble with the phrase “conscientious and ardent.”

• Extension of the “reasonableness” requirement applicable to fees under RPC 1.5 to the amount of expenses charged to a client, along with inclusion of the Model Rule requirement that contingent fee agreements be set forth in a writing “signed by the client.”

• Inclusion of additional exceptions to the RPC 1.6 duty of confidentiality, including an exception that would permit disclosure “to prevent reasonably certain death or substantial bodily injury” and an exception that would permit disclosure “to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services.”

• A substantial number of clarifications to the rules governing conflicts of interest (RPC 1.7, 1.8, 1.9, 1.10).

• Retention of RPC 1.8(e), requiring that a client remain ultimately liable for advanced court costs and litigation expenses, in lieu of the Model Rule approach that would permit advanced costs and expenses to be contingent on the outcome of litigation.

• Retention and expansion of RPC 1.8(i) (a provision not retained in the revised Model Rules), which expressly addresses conflicts arising when lawyers are related as parent, child, sibling, spouse, or—in the proposed version—when the lawyers are in a “close familial or intimate relationship.”

• At the urging of ATJ/legal services representatives, a recommendation against adoption of that aspect of Model Rule 1.8(g) requiring that client consent to aggregate settlements be confirmed in a writing “signed by the client,” the suggested rule instead requiring client consent that is “confirmed in writing” only.

• Retention of RPC 1.8(k), prohibiting sex with clients, which, unlike the Model Rule, includes specific provision relating to sexual relations with a representative of an organizational client.

• Retention of Washington’s screening provisions in RPC 1.10, which may be used to avoid disqualification arising from a conflict of interest when a lawyer changes law firms.

• Addition of new Rule 1.13 (Organization as Client) clarifying the lawyer’s role when representing an organization and defining the lawyer’s obligation upon learning that an officer, employee, or other constituent is violating or intends to violate the law.

• Clarifications to the rule governing trust accounts and addition of a new rule governing trust account recordkeeping (Rules 1.15A & 1.15B).

• Addition of new Rule 1.17 governing the sale of a law practice.

• Addition of new Rule 1.18 governing a lawyer’s duties to a prospective client.

• Addition of new Rule 2.4 governing a lawyer’s duties when serving as a third-party neutral.

• A significant revision to Rule 3.3, which governs a lawyer’s duty of candor to the tribunal, requiring a lawyer who gains actual knowledge of an offer of false material evidence by a client to take remedial measures, up to and including disclosure to the tribunal.

• Significant revisions to Rules 5.5 and 8.5 to address issues of the multijurisdictional practice of law, disciplinary jurisdiction, and choice of law.

• Retention of Rule 6.1 (Voluntary Pro Bono Publico Service) as amended by the Court in 2003, with the addition of official comments designed, inter alia, to assist practitioners in tracking and voluntarily reporting pro bono service hours to the WSBA.

• Adoption of Model Rule 8.3(a) & (b), imposing a mandatory reporting requirement when a lawyer knows that another lawyer or a judge has committed serious professional or judicial misconduct.

• Retention of Washington’s existing RPC Preamble in a prefatory section captioned “Fundamental Principles of Professional Conduct.”

• Numerous other suggested changes, mostly conforming to the ABA Model Rules, discussed in detail in the report of the Ethics 2003 Committee.

In addition to the substantive changes, the rules have been reorganized to correspond directly to the structure of the ABA Model Rules of Professional Conduct.