WSR 17-08-059

RULES OF COURT

[March 29, 2017]

The Washington State Bar Association, having recommended the suggested amendments to RPC 1.0A—Terminology, RPC 1.10—Imputation of Conflicts of Interest: General Rule, and RPC 1.11—Special Conflicts of Interest for Former and Current Government Officers and Employees, and the Court having considered the amendments and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than July 28, 2017. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 29th day of March, 2017.

A. Name of Proponent: Washington State Bar Association.

C. Purpose: The proposal is result of a member inquiry received by the WSBA Committee on Professional Ethics (CPE). The current Rules of Professional Conduct (RPC) treat public defender imputed conflicts differently depending on whether the public defender is a government employee or works for a private entity (a law firm or nonprofit). The reason for differential treatment is because of the special conflict of interest rules applicable to lawyers who are government employees. After much research, the CPE concluded the issue of public defender imputation of conflicts would be better resolved by a rule amendment rather than an advisory opinion. 

The typical lawyer who is a government employee represents the government, or possibly the government and individual employees of the government. The CPE concluded that the RPCs had overlooked the unusual situation presented by public defenders who are paid by the government to represent private individuals. Public defenders handle similar work regardless of whether they are employed by a private entity or the government. There is no basis for having different rules pertaining to imputed conflicts of interest dependent on the identity of the public defender's employer. The CPE concluded that a rule change was necessary to address this circumstance.

Suggested Rule Amendments:

The preliminary draft rules were circulated to interested parties for comment, including both state and federal public defender agencies, the Council on Public Defense, the WSBA Criminal Law Section, the WSBA Juvenile Law Section, and the Washington Defenders Association. There was widespread support for the proposed changes. Only one comment was received in opposition to the changes.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Redline and clean versions of RPC 1.0A, 1.10 and 1.11.

(a) - (n) [Unchanged.]

[1] – [3] [Unchanged.]

Firm

[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

See also Washington Comments [12] and [13].

Fraud

[5] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

See also Washington Comment [13] [14].

Informed Consent

[6] [Unchanged.]

[7] [Washington revision] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in writing," see paragraphs (n) and (b). Rule 1.8(a) requires that a client's consent be obtained in a writing signed by the client. See also Rule 1.5 (c)(1) (requiring that a contingent fee agreement be "in a writing signed by the client"). For a definition of "signed," see paragraph (n).

See also Washington Comment [14] [15].

Screened

[8] – [9] [Unchanged.]

[10] [Washington revision] In order to be effective, screening measures must be implemented as soon as practical after a lawyer, LLLT, or law firm knows or reasonably should know that there is a need for screening.

See also Washington Comment [15] [16].

Additional Washington Comments (11 - 16 17)

[11] – [12] [Unchanged.]

Fraud

[13] [14] Model Rule 1.0A(d) was modified to clarify that the terms "fraud" and "fraudulent" in the Rules of Professional Conduct do not include an element of damage or reliance.

Informed Consent

[14] [15] In order for the communication to the client to be adequate it must be accomplished in a manner that can be easily understood by the client.

Screened

[15] [16] See Rules 1.10 and 6.5 for specific screening requirements under the circumstances covered by those Rules.

Other

[16] [17] For the scope of the phrase "information relating to the representation of a client," which is not defined in Rule 1.0A, see Comment [19] to Rule 1.6.

(a) - (c) [Unchanged.]

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. However, lawyers appointed or assigned to represent indigent members of the public (public defenders) are subject to this rule regardless of whether they are government employees.

(e) – (f) [Unchanged.]

[1] – [8] [Unchanged.]

Additional Washington Comments (9 - 13 15)

[9] – [14] [Unchanged.]

(a) - (e) [Unchanged.]

[1] – [10] [Unchanged.]