Trial Ethics Jeopardy

All Attorneys (no matter whether they practice in the Courtroom or the Boardroom) should be familiar with the Washington State Rules of Professional Conduct. The rules can be found in their entirety on the Washington Court’s Website:

http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=ga&set=RPC

A brief outline of those rules is helpful to focus in on the applicable rule in any given situation.

TITLE 1 CLIENT-LAWYER RELATIONSHIP 1.1 Competence 1.2 Scope of Representation and Allocation of Authority 1.3 Diligence 1.4 Communication 1.5 Fees 1.6 Confidentiality of Information 1.7 Conflict of Interest: Current Clients 1.8 Conflict of Interest: Current Clients: Specific Rules 1.9 Duties to Former Client 1.10 Imputation of Conflicts of Interest: General Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral 1.13 Organization as Client 1.14 Client with Diminished Capacity 1.15A Safeguarding Property 1.15B Required Trust Account Records 1.16 Declining or Terminating Representation 1.17 Sale of Law Practice 1.18 Duties of Prospective Client

TITLE 2 COUNSELOR 2.1 Advisor 2.2 (Deleted) 2.3 Evaluation for Use by Third Persons 2.4 Lawyer Serving as Third-Party Neutral

TITLE 3 ADVOCATE 3.1 Meritorious Claims and Contentions 3.2 Expediting Litigation 3.3 Candor Toward the Tribunal 3.4 Fairness to Opposing Party 3.5 Impartiality and Decorum of the Tribunal 3.6 Trial Publicity 3.7 Lawyer as Witness 3.8 Special Responsibilities of a Prosecutor 3.9 Advocate in Nonadjudicative Proceedings

TITLE 4 TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1 Truthfulness in Statements to Others 4.2 Communication With Person Represented by a Lawyer 4.3 Dealing With Person Not Represented by a Lawyer 4.4 Respect for Rights of Third Person

TITLE 5 LAW FIRMS AND ASSOCIATIONS 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers 5.2 Responsibilities of a Subordinate Lawyer 5.3 Responsibilities Regarding Nonlawyer Assistants 5.4 Professional Independence of a Lawyer 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law 5.6 Restrictions on Right to Practice 5.7 Responsibilities Regarding Law-Related Services 5.8 Misconduct Involving Lawyers and LLLTs Not Actively Licensed to Practice Law 5.9 Business Structures Involving LLLT and Lawyer Ownership 5.10 Responsibilities Regarding Other Legal Practitioners

TITLE 6 PUBLIC SERVICE 6.1 Pro Bono Publico Service 6.2 Accepting Appointments 6.3 Membership in Legal Services Organization 6.4 Law Reform Activities Affecting Client Interests 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

TITLE 7 INFORMATION ABOUT LEGAL SERVICES 7.1 Communications Concerning a Lawyers Services 7.2 Advertising 7.3 Direct Contact with Prospective Clients 7.4 Communication of Fields of Practice and Specialization 7.5 Firm Names and Letterheads 7.6 Political Contributions to Obtain Government Legal Engagements or Appointments by Judges

TITLE 8 MAINTAINING THE INTEGRITY OF THE PROFESSION

8.1 Bar Admission and Disciplinary Matters 8.2 Judicial and Legal Officials 8.3 Reporting Professional Misconduct 8.4 Misconduct 8.5 Disciplinary Authority; Choice of Law

What follows is a SAMPLING of WSBA Advisory Opinions from the Advisory Opinion Database related to Pre-Trial, Trial, and Post Trial Conduct. These

“These opinions have been issued by the WSBA Rules of Professional Conduct Committee or its predecessors, and are advisory only. The Rules of Professional Conduct were substantially revised in 2006. The language and citations in any Advisory Opinion issued prior to this date may not be consistent with the current rules.”

“In September 2010, the Board of Governors eliminated the distinction between Formal and Informal Ethics Opinions and adopted the nomenclature of “Advisory Opinions.” In doing so, the Board recognized the Washington Supreme Court's opinion in In re Disciplinary Proceeding Against DeRuiz 152 Wn.2d 558, 99 P.3d 881 (2004), which emphasized that ethics opinions issued by the Bar Association are advisory only, and that the Court is the ultimate arbiter of the Rules of Professional Conduct.”

Sharp Practices

1415 1991 RPC 4.1; 8.4(a); 8.4(c)

Use of actor posing as client to impeach expert witness; misrepresentation

The Committee reviewed your inquiry concerning use of an actor to pose as a client for an evaluation by a psychologist, with the intent to use that situation for impeachment of the psychologist's testimony at trial. The Committee was of the opinion that this would be a fraudulent scheme and sharp practice in violation of RPC 4.1(a) and RPC 8.4(a) and (c).

1233 1988 RPC 3.1; 8.4(c); 8.4(d); CrR 3.3

Prosecutor; filing criminal charges in violation of procedural right to speedy trial

The Committee reviewed your inquiry concerning whether a prosecutor has an ethical duty not to file a case which would violate a defendant's right speedy trial under CrR 3.3 (not a federal or state constitutional right). After considerable discussion, by a vote of 8-6, the Committee was of the opinion that, based on the facts as presented by you, such conduct would violate RPC 3.1, 8.4(c) and 8.4(d).

1067 1987 RPC 4.4; 5.6(b) Threat by lawyer to sue opposing counsel for calling witness with whom lawyer previously signed settlement agreement containing confidentiality provision

The Committee considered your inquiry concerning the threat by another lawyer to sue you personally if you called a witness to testify after you and that witness in previous litigation had signed a settlement agreement which included a "confidentiality" provision. While the question of the enforceability of the agreement is a legal question which the Committee cannot address, the Committee did want to point out that such an agreement, if in fact it would act to limit a lawyer's right to call any witness in future litigation, would appear to violate RPC 5.6(b) which prohibits lawyers from making agreements restricting a lawyer's right to practice as part of a settlement of a controversy between private parties. Regarding the threat, the Committee was of the opinion that if the other lawyer did believe that the contract was enforceable and that you were threatening to breach the agreement, and it was in fact his client's intent to bring suit if it were breached, then there would be nothing improper in communicating that fact to you. However, if such a threat were merely being used as a trial tactic, then it would appear that such conduct

would violate RPC 4.4, which prohibits a lawyer from using means that have no substantial purpose other than to embarrass, delay, or burden a third person.

1750 1997 RPC 3.3; 3.4; 8.4 Duties toward tribunal; lawyer in possession of tapes of court proceeding needed for appeal that trial court has since lost or destroyed

[The lawyer obtained tapes of court proceedings as part of representing a criminal defendant in an appeal. The trial court said a tape of one relevant proceeding was lost or destroyed. The lawyer did not know whether that tape was among those he received from the court, and intended to destroy the tapes and/or refuse to provide them to the court.] Your recent ethical inquiry regards your ethical obligation to give certain tapes to the court and the consequences of failing to do so. You gave the tapes to your lawyer. 1. The Committee will not issue an opinion on a question regarding an action for which litigation is pending or which may be the subject of disciplinary action. 2. Your proposed course of action would likely be a violation of RPC 3.3, 3.4 and 8.4. 3. While you may wish to review RALJ as recently amended, this question is a mixed question of law and fact that we cannot give a more specific answer.

2072 2004 RAP 10.4(h), RPC 3.1, 3.4(c)

Citing to a trial court as precedential authority an unpublished opinion of the Washinton Court of Appeals

The inquirer asks if it is a violation of the RPCs to cite to a trial court, as precedential authority, an unpublished opinion of the Washington State Court of Appeals in light of the prohibition of RAP 10.4(h). The committee does not issue opinions about the conduct of lawyers other than the one inquiring. Thus, in order to address the inquiry, the committee’s response assumes the requestor is inquiring about his own proposed conduct. Further, the committee does not opine as to questions of law. Citing to an unpublished opinion appears not to result in a per se violation of the RPCs. Nonetheless, citations to such authorities should only be made after consideration of RPC 3.1 and 3.4(c).

2022 2003 CR 45, RCW 5.56.010, RPC

3.4, 4.1. 4.4, 8.4

subpoena without case being filed The committee has reviewed your inquiry as to whether it is a violation of the RPCs to “send” a subpoena prior to commencement of suit without a cause number and without a case being filed demanding release of a client’s employment records. Assuming CR 45 and RCW 5.56.010 are not interpreted to mean that a subpoena is issued by a party’s lawyer or clerk of court, directing a non-party to appear and/or produce documents at deposition or trial, and thus presuppose an action has been filed, issuing a subpoena suggesting it has the force of law when, in fact, it has none, may be a violation of Rules of Professional Conduct 3.4, 4.1. 4.4 and 8.4. To issue a subpoena without the commencement of an action may be a “. . .

frivolous discovery request . . .”. RPC 3.4. To create the impression that a judicial proceeding has been commenced or that a subpoena has the force of law, when in fact it does not, may be a violation of RPC 4.1. You also may be in violation of RPC 4.4 by using a method to obtain evidence that violates the legal rights of a third person. Under 8.4, such action may constitute “engagement and conduct involving dishonesty, fraud, deceit or misrepresentation” and, under subsection (k) may violate your oath as an attorney. Depending upon the nature of your request, the committee suggests you review RCW 42.17 (Public Disclosure Act) and RCW 49.12.250.

2194 2009 RPC 1.1, 1.2, 1.4 Redacted discovery to defendants I. Background/ Facts Inquiry # 2194 is a request by a defense counsel regarding the County Prosecutor’s policies concerning “early” plea offers. Inquiry # 2194 describes the early plea unit (EPU) program adopted by the County Prosecutor’s Office as limiting a defendant’s review of discovery materials as a condition for an early plea offer. The EPU program makes plea bargain offers to defendants quickly after cases are filed, often before arraignment occurs. The prosecutor’s stated purposes for this program are to: 1) recognize and reward defendants who take responsibility for their actions; 2) encourage defense counsel to meet face-to-face with their clients to discuss the discovery rather than merely providing a copy; 3) focus limited EPU resources on negotiations rather than reviewing redactions; and 4) treat requests for reviewing redactions consistently. The Prosecutor’s Office has stated they will revoke an EPU plea offer if a defendant receives a copy of redacted discovery. Compare CrR 4.7(h)(3) (establishing rules for obtaining approval of redactions before passing discovery information to defendants). The inquiring attorney contacted the RPC Committee for advice as to whether she can comply with the EPU restrictions on plea offers and still comport with her obligations under the Rules of Professional Conduct. II. Questions Presented Inquiry # 2194 specifically asks: Under the RPCs, can I ethically plead my client guilty under these circumstances? When my client is wishing for additional information to make a decision, can I ethically attempt to conduct an investigation and speak to the witnesses involved and/or provide my client

with redacted discovery even though it may result in the loss of an offer which my client is interested in? May I attempt to provide my client with redacted discovery and conduct an investigation which would involve speaking to witnesses without the knowledge of the state in order to try to preserve any offers or avoid any amendments? III. Analysis and Applicable RPCs Fundamentally, a lawyer has obligations under the RPCs to represent a client competently (RPC 1.1) and consistently with the directions and decisions of the client (RPC 1.2). In performing those functions, the lawyer must communicate with the client at times and in manners sufficient to enable the client to make decisions and participate in the representation (RPC 1.4). These principles outline the proper response to Inquiry # 2194 and should guide the conduct of the inquiring attorney. Applicable Rules and Comments. RPC 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comment [5] to RPC 1.1 elaborates: Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake… RPC 1.2 Scope of Representation Between Client and Lawyer (a) …A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. Comment [1] to RPC 1.2 elaborates: Paragraph (a) confers upon the client the ultimate authority to determine the purpose to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by

the client. See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions… RPC 1.4 Communication (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information… (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Comments to RPC 1.4 provide further clarity: [1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation. [2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client’s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless that client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer. See Rule 1.2(a). * * * [5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement… Circumstances Presented.

The situation presented by Inquiry # 2194 entails circumstances where the Prosecutor’s plea bargain offer is contingent upon a defendant’s decision to accept the offer in advance of being fully or even partially informed about all possible facts, arguments or explanations, including information that is normally required to be provided to defendants. The plea bargain offer is expressly intended to facilitate a prompt resolution of matters where defendants desire such a result. It is not unusual for cases to be resolved in advance of full and complete disclosure of all possibly relevant facts. Indeed, the justice system would be enormously burdened if complete disclosure were always required in all cases in advance of any resolution. The lawyer’s duty in such instances is to explain the nature of the offer sufficiently to allow the client to make a decision whether to accept the plea bargain offer or not. Such explanation could include any limitations on information known or possessed by the defense or prosecution, as well as any impacts upon the possible ultimate resolution of the matter. For example, in In Re Disciplinary Proceeding Against Longacre, 155 Wash.2d 723, 122 P.3d 710 (2005), the attorney was disciplined for failure to communicate plea bargain offers to his client at times and in manners sufficient to “empower his client with the ability to accept or reject pleas offers by failing to adequately inform him of the offers and the penalties he faced if he were to go to trial.” Longacre, at 740. The lawyer’s problem was not caused by whether the offer was “good” or not; rather, the lawyer’s problem was caused by a failure to communicate to the client the nature of the offer adequately to assure understanding of the opportunities and risks presented by the offer. Thus, if the inquiring attorney believes that the client should consider seeking additional discovery, that is one of the topics that should be covered with the client before the client makes a decision. Similarly, if a risk posed by additional discovery (whether formal or informal) is the withdrawal of the offer, that issue too should be discussed with, and decided by, the client. Ultimately, of course, pursuant to RPC 1.2(a), the lawyer “shall abide by a client’s decision, after consultation with the lawyer, as to a plea to be entered…” To engage in that consultation, the lawyer must employ “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” RPC 1.1. It is a lawyer’s duty to provide the client with necessary information and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” prior to entering a plea on the client’s behalf. RPC 1.4(b). IV. Recommendation

In summary, Inquiry # 2194 asks whether plea bargain offers can be competently evaluated without providing redacted discovery to a client; asks whether a separate defense investigation would be required or permitted in making such an evaluation; and asks whether a proper response to an EPU plea bargain offer would be to provide a client with redacted discovery despite the Prosecutor’s express policy of withdrawing offers if that occurs. The answer in each instance is to communicate the details, scope and restrictions tied to the EPU plea bargain offer to the client, and to abide by the client’s decision to accept the offer, to reject the offer, or to engage in other discovery efforts, after the client is fully informed of the risks or benefits of each such choice. We also note that the scope of permitted discovery, or limitations on provision of permitted discovery, or other rules related to pleas are outside the purview of the RPC Committee.

1317 1989 RPC 1.4(a); 4.2

Lawyer does not attend hearing; duty to communicate with client; claims officer in child support matter directly communicating with represented party

The Committee reviewed your inquiry based upon hypothetical facts concerning a lawyer employed to represent a client at an adversarial hearing for child support. Without advising his client, the lawyer does not attend the hearing. The Committee was of the opinion that the lawyer's conduct violated RPC 1.4(a), which requires that a lawyer "keep a client reasonably informed about the status of a matter." You also asked whether the lawyer would have committed professional malpractice, but that is a legal question upon which the Committee can render no opinion. You also asked whether the claims officer, who is also an attorney, and who proceeded to have communications with the client, is in breach of the rules of professional responsibility including RPC 4.2. The Committee was of the opinion that the hearing officer would not have violated that or any other rules by your described conduct.

Confidences and Secrets

2099 2005 RPC 1.0, 1.6, 1.13 Client competency; client confidentiality

FACTS The inquirer is a public defender. Information revealed by the client during conversations in the course of the representation has given rise to a concern about the client`s competency to stand trial. The client has refused to allow the attorney to disclose the content of these conversations to the court. The inquirer assumes that she has a legal obligation to raise her concern about competency to the court. For purposes of responding to this inquiry, we do not question this assumption. See In re Fleming, 142 Wn.2d 853, 863-67, 16 P.3d 610 (2001) (articulating the constitutional prohibition against trying an incompetent defendant and finding ineffective assistance of counsel for failure to raise a competency question with the court); State v. Colville, 88 Wn.2d

43, 47, 558 P.2d 1346 (1977) (defense counsel may not waive defendant`s rights under the competency statute); State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978) (acknowledging counsel`s dual role as representative of client and officer of the court, and holding that counsel`s opinion about competency is entitled to weight). See also RCW 10.77.050 (no defendant shall be tried as long as incapacity continues). Raising this concern will probably prompt the court to order a competency evaluation. See RCW 10.77.060 (1)(a) (when there is reason to doubt competency, the court shall appoint professionals to evaluate and report on the mental condition of the defendant). The inquirer asks whether she can disclose client communications that form the basis for her competency concerns to the court or to mental health professionals charged with evaluating the client. She also seeks guidance regarding obtaining consent from the client to allow such disclosures to be made. DISCUSSION The Committee can opine on neither the application of the competency statute nor the statutory attorney-client privilege, both of which raise legal questions under Washington law. However, assuming that the lawyer is correct that Washington law required her to disclose to the court her concerns regarding the defendant’s competency, and that the basis for these concerns arose from conversations protected by the attorney-client privilege, this Committee will opine on the application of the relevant ethics rules. Disclosure of Confidential Information RPC 1.6 currently prohibits disclosure of client confidences and secrets, unless: 1) the client gives consent, 2) the disclosure is impliedly authorized in order to carry out the representation, or 3) the disclosure is permitted by other provisions of Rule 1.6. “Confidence” refers to “information protected by the attorney-client privilege under applicable law.” “Secret” refers to “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” RPC Terminology. Under the proposed amendment to RPC 1.6(a), protected “information relating to the representation” would include “confidences” and “secrets” as defined under the current rules. Proposed RPC 1.6(a) & cmt. [19]. Assuming without deciding the propriety of disclosing competency concerns to the court under Washington law, any such authorization does not extend to the disclosure of attorney-client conversations that form the basis of the lawyer’s concerns. These communications are protected under RPC 1.6(a). They must not be disclosed to anyone, including the court or mental health professionals, without the client’s informed consent. See State v. Webbe, 122 Wn. App. 683, 691-92, 94 P.3d 994 (2004). Neither current RPC 1.13 (Client Under a Disability) nor proposed RPC 1.14 (Client with Diminished Capacity) leads to a different result. Under both versions of the rule, the lawyer

must, “as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Raising competency concerns may result in the defendant being involuntarily detained and transported to a mental health facility for the purpose of evaluating or restoring competency. See RCW 10.77.090. In such situations, the client’s rights, including the lawyer’s ethical obligation to maintain confidentiality of information under RPC 1.6, must be zealously protected. See Proposed RPC 1.14, cmt. [8] (where disclosure of a client’s diminished capacity could lead to involuntary commitment proceedings, thereby adversely affecting the client’s interest, information relating to the representation is protected by RPC 1.6 and may not be disclosed by the lawyer unless authorized to do so). Thus, even if Washington law authorizes or requires the lawyer to disclose to the court competency concerns, the diminished capacity rule does not authorize the lawyer to disclose the content of confidential communications relating to the lawyer’s competency concerns absent the client’s informed consent. Finally, the lawyer is permitted to disclose confidences and secrets to the extent the lawyer reasonably believes necessary in order to comply with a court order. RPC 1.6(b)(2); Proposed RPC 1.6(b)(6). If the court orders the lawyer to disclose confidences relating to the competency issue, the lawyer “should assert on behalf of the client all nonfrivolous claims that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.” Proposed RPC 1.6, cmt. [13] (also requiring the lawyer to consult with the client about the possibility of appeal to the extent required by RPC 1.4 in the event of an adverse ruling). Under the circumstances presented here, this would include bringing to the court’s attention its obligations under relevant constitutional and statutory law, including any requirement under RCW Chapter 10.77 to order an evaluation of competency based on the concerns raised by the lawyer. If, notwithstanding these assertions, the court orders the lawyer to reveal information relating to the representation, and no appeal is sought after consultation with the client, the lawyer may comply, being careful to limit disclosure to confidences that the lawyer reasonably believes necessary to comply with the order. Consent Under the facts presented, the client has refused to authorize disclosure. However, the Inquirer seeks guidance regarding obtaining the client’s consent to disclose confidential information in this situation. Under the proposed amendment to RPC 1.6, client consent permitting disclosure of information relating to the client’s representation must be “informed,” denoting “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” RPC 1.6(a),1.0(e). Whether a client has the capacity to give informed consent depends on the particular facts, but the Committee believes that asking for consent is problematic if competence of the person giving it is an issue. In most situations, counsel will be able to disclose a concern to the court without revealing the confidential communication that led to the concern. In other situations, it may be appropriate for the lawyer to seek appointment of a limited guardian ad litem or

independent consent counsel in order to protect and assert the client’s interests on the consent issue. See Webbe, 122 Wn. App. at 689 n.12, 693 n.20 (approving of the trial court’s appointment of a guardian ad litem/independent counsel for purposes of evaluating the client’s possible waiver of the attorney-client privilege).

2190 2009 RPC 1.14, 1.2, 1.6, 1.13, 8.4(d), 3.4(c), 1.4(a)(5),

1.0(3), RCW 10.77, IO 2099

application of RPC 1.14 in competency proceedings under RCW 10.77

1. Background The inquiring lawyer is employed by a non-profit corporation organized for the purpose of providing legal services to the indigent, primarily public defense in criminal cases. The lawyer asks about the duties of counsel in the context of raising competency in a criminal case, and focuses on RPC 1.2, 1.6, and 1.14. The lawyer points out that there may be circumstances in which the client appears to be legally incompetent to participate in the proceedings. The question this raises is what, if any, information the lawyer is impliedly authorized to disclose. There is a prior opinion on a related question, Ethics Inquiry 2099 (2005), but the lawyer points out that there have been changes to former RPC 1.13, presently composed as RPC 1.14. The lawyer then asks: “Under RPC 1.14 (b), is harm to the client’s constitutionally protected interest in competence during the criminal process one that is envisioned by the rule as an “other harm”? “If so, under RPC 1.14(c), may counsel disclose information gained during the course of representation when raising competency? “May counsel disclose statements made by the client? “May counsel disclose observed behaviors? “Should counsel seek appointment of a guardian ad litem prior to making such disclosures? “If counsel is authorized to make disclosures under RPC 1.14(c), are the Courts, prosecutors, and psychological professionals employed by the State of Washington proper parties to those disclosures?” 2. Brief Response If, in a criminal case, a lawyer representing a defendant is legally obligated to raise a concern about the defendant’s competency to the court, then the lawyer is ethically obligated to raise the concern with the court. Such a disclosure, however, reveals information relating to representation of a client under RPC 1.6, and the lawyer should limit the disclosure only to that information necessary to address the reason for the disclosure. In some circumstances, the lawyer may be able to state only that there is an issue with the client’s competency. As a result, the facts presented do not require the Committee to answer whether harm to a client’s constitutionally protected interest would constitute “other harm” for purposes of RPC 1.14.

3. Discussion and Analysis 3.1. Whether a lawyer representing a person charged with a crime has a legal obligation to raise a concern about competency with the court is a legal issue on which the Committee cannot opine. In order to provide guidance to the inquirer, and to be consistent with Informal Opinion 2099, the Committee will assume that a lawyer representing a person charged with a crime has an obligation to raise a concern about that person’s competency to the court. See In re Fleming, 142 Wn.2d 853, 863-67, 16 P.3d 610 (2001) (articulating the constitutional prohibition against trying an incompetent defendant and finding ineffective assistance of counsel for failure to raise a competency question with the court); State v. Colville, 88 Wn.2d 43, 47, 558 P.2d 1346 (1977) (defense counsel may not waive defendant’s rights under the competency statute); State v. Israel, 19 Wn. App. 773, 779, 577 P.2d 631 (1978) (acknowledging counsel’s dual role as representative of client and officer of the court, and holding that counsel’s opinion about competency is entitled to weight). See also RCW 10.77.050 (no defendant shall be tried as long as incapacity continues). 3.2. Assuming a lawyer has such an obligation, the lawyer is ethically obligated to raise the concern with the court. See Washington RPC 8.4(d) (conduct prejudicial to the administration of justice); RPC 3.4(c) (knowingly disobey an obligation under the rules of a tribunal); RPC 8.4(c) (dishonesty, fraud, deceit or misrepresentation). 3.2.1. The disclosure of a client’s competency is “information relating to the representation of a client” under RPC 1.6. See RPC 1.14 cmt [8]. This would be considered a “secret” since it is “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” See RPC 1.6 cmt [17]. 3.2.2. When a disclosure is legally required to be made, a lawyer should limit disclosure only to that information necessary to address the reason for the disclosure. Because a lawyer could simply inform the court of the existence of a competency issue, the lawyer should not disclose any communications that would be protected by the attorney-client privilege, and should not disclose any other secrets, including non-verbal gestures and observations. If asked by the court why the lawyer has formed the opinion, the lawyer should refuse to disclose that information due to the lawyer’s obligations under RPC 1.6(a). 3.2.3. Because, however, a lawyer is obligated to obey court orders, the lawyer is required to inform the court how it formed its opinion if the court so orders. The lawyer should attempt to mitigate any necessary disclosure by asking that the disclosure be made under seal or in chambers. 3.3. The only question remaining then is when, and under what circumstances, the lawyer will conclude that there are issues of competency that must be raised to the court. The Committee cannot opine on whether, and what type of, conduct should raise a concern of competency.

The following points, however, are relevant to the ethics analysis: 3.3.1. A lawyer is required to discuss competency with the client and seek the client’s input about how to proceed. See RPC 1.2(a) (requiring a lawyer to abide by a client’s decisions concerning the objectives of representation and consult with the client as “to the means by which they are to be pursued”). See also RPC 1.4(a)(2) (requiring a lawyer to consult reasonably with the client about the means by which the client’s objectives are to be accomplished); RPC 1.4(a)(5) (requiring the lawyer to consult with the client about any relevant limitations on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the RPCs); RPC 1.4(b) (requiring a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation). 3.3.2. If a defendant informs the lawyer that he or she does not want competency raised in his or her case, a lawyer may take that statement into consideration as one of a number of factors that the lawyer weighs when determining competency. Stated differently, a lawyer may reasonably conclude, based on a consideration of all of the facts, that a defendant’s articulation that competency should not be raised is an indication that the defendant is at least competent enough to stand trial. Other considerations may include whether the defendant has a history of mental illness, whether the defendant has a history of involvement with the criminal justice system and may therefore be familiar with the various procedures, and whether the defendant is otherwise able to give informed consent to proceeding in this manner. See RPC 1.0(3) (stating that informed consent “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct”). Lastly, a lawyer may also wish to obtain an early mental health evaluation to assess client’s competency, which may be especially helpful in the case of a defendant who does not wish competency to be disclosed. 3.3.3. Lawyers should also be aware of RPC 1.14, which requires a lawyer to maintain a normal attorney-client relationship with the defendant. Under the rule, the lawyer may take reasonably necessary protective action if the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest. If a lawyer believes this to be the case, the lawyer may choose to consult family members or medical providers for assistance in maintaining as normal a relationship as possible with the defendant. 3.3.4 The inquiring lawyer also asks whether harm to a client’s constitutionally protected interest would constitute “other harm” for purposes of taking protective measures under RPC 1.14. Due to the above analysis, it is not necessary for the Committee to reach a conclusion on this point. It is worth noting, however, that there is a dearth of case law and no comments to the rule to clarify this point. Because the broad language of the rule, it would not be unreasonable to assume that “other harm” did constitute harm to a client’s constitutionally protected interest.

4. Recommendation All of the above.

Paying the Bills

1908 2000 RCW 3.4(b); RCW 9A.72.090; RCW

9A.72.120

Paying treating physician for trial testimony when doctor testifying as fact, not expert, witness

The inquirer asked if it is ethical for a lawyer to pay for the trial testimony of a doctor who provided medical treatment to the lawyer’s client. The committee opined that it is not unethical for a lawyer to pay a treating physician, testifying as a fact witness, the reasonable expenses incurred by the witness in connection with testifying and the reasonable value of the witness’s time in connection with testifying. A lawyer may not ethically pay a witness to induce particular testimony or make payment contingent on the outcome of the litigation. Nor may a lawyer ethically pay a witness when doing so is prohibited by law. See for example RCW 9A.72.090 (bribing a witness) and RCW 9A.72.120 (tampering with a witness).

1090 1987 RPC 8.4(d) Duty to pay expert witness fees when expert subpoenaed at client's request

The Committee considered your inquiry concerning your responsibility to pay witness fees for an expert witness who has been subpoenaed by you at the request of your client, and who was required to appear in court on three consecutive days, only to testify briefly at the conclusion of the trial. The Committee was of the opinion that as a lawyer is permitted to issue subpoenas over the lawyer's signature as an officer of the court, the failure of the lawyer to pay witness fees when requested or requiring a witness unnecessarily to spend an unreasonable amount of time sitting in court are prejudicial to the administration of justice and violate Rule 8.4(d) of the Rules of Professional Conduct.

1381 1990 Formal Opinion 33;

RCW 19.72.020

Lawyer guaranteeing security on client's bail bond

The Committee reviewed your inquiry concerning whether a lawyer may guarantee the security on a bail bond for a client. You indicated that you had "heard that it is prohibited for an attorney to make arrangements to secure a bail bond for a client." Enclosed are copies of Formal Opinion 33 regarding posting bail for others and RCW 19.72.020 regarding bonds. These may be what you are referring to. Regarding your specific inquiry, it appears to the Committee that you are asking whether another lawyer who posted a security for a bond may now ethically withdraw that security. The rules of procedure given to the Committee by the Board of Governors requires that when an inquiry is raised regarding the conduct of a third party, the identity of that third party must be disclosed so that he or she may have an opportunity to respond. Therefore, if you wish the Committee to issue an opinion, you need to disclose the identity to the Committee. Further, if you believe an ethical violation has occurred you may want to consider filing a disciplinary complaint.

Lawyer - Witness

Opinion Number

Year Issued RPC Subject Opinion

1003 1986 RPC 3.7 Lawyer as witness; representation of client other than at trial

The Committee was of the opinion that after you had been representing a client, and you determined that it would be necessary for you to testify as a witness at a trial concerning that matter, the Rules of Professional Conduct would not prohibit you from continuing to represent the client in matters separate and distinct from the court trial. Neither would you be prohibited from providing legal research, legal opinions, court papers, settlement agreements, and other legal work to the trial attorney. The Committee was of the further opinion that you could bill for your continued services and for your time for testifying at trial.

1227 1988 RPC 3.7 Lawyer as witness; extent of representation permitted

The Committee considered your inquiry concerning actions that may be performed by a lawyer who would be a witness at a trial. The Committee was generally of the opinion that unless such conduct fell within one of the exclusions set out in RPC 3.7, the lawyer must decline to undertake the representation if it is apparent that the lawyer will be called as a witness by either side. If the representation is already underway, the lawyer must withdraw as soon as it becomes obvious that the lawyer will be called as a witness on the client's behalf. In response to your specific questions, the Committee was of the opinion that a lawyer could not argue pre-trial motions to the court if the motion in any way dealt with or could be interpreted to deal with the lawyer's testimony as a witness. However, if the motion involved a purely legal question unrelated to the lawyer's testimony, then the Committee thought that would be in the nature of briefing, preparing court papers and attending settlement conferences, which would not be precluded by Rule 3.7. The Committee was of the opinion that a lawyer who was a witness could not argue motions during trial outside the hearing of the jury, nor conduct examination of witnesses during the trial even if the lawyer did not argue the case to the jury.

1711 1997 RPC 3.7 Former law partner will be necessary witness at trial

[The inquiry concerned] whether RPC 3.7 prohibits a law firm from representing a client in litigation, where the client was, and possibly still is, represented by a former partner of the law firm, who is likely to be a necessary witness at trial. The Committee is of the opinion that assuming that your former partner continues not to be "in the same firm" as you and the other attorneys of your firm and will not rejoin your firm prior to his ultimate retirement, and assuming that no other attorneys of your firm (e.g., any who might have worked with [the former partner] in his representation of [the client]) are likely to be necessary witnesses at trial, RPC 3.7 does not prohibit your firm from representing [the client]. Your inquiry does raise possible conflict of interest issues other than RPC 3.7. The Committee expresses no opinion about whether this representation may be in violation of RPC 1.4 and 1.7(b).

1104 1987 RPC 3.7 Lawyer employed by another The Committee was of the opinion that Rule 3.7 of the Rules of Professional Conduct

law firm to attend a medical examination and later testify as witness

would not prohibit you from being employed by a law firm to attend a medical examination and later testify as a witness regarding that examination because you are not a member of the law firm and would not be acting as an advocate at trial.

998 1986 RPC 3.7 Lawyer as witness; non-lawyer staff as witness

The Committee was of the opinion that RPC 3.7 would prohibit a lawyer who is a member of a law firm from testifying for impeachment purposes in a case in which another lawyer from the firm was representing a party at trial. The Committee did note, however, that the Rules would not prohibit a non-lawyer employee of the firm from testifying.

1306 1989 RPC 3.7 Lawyer as witness in arbitration or administrative proceedings; advocate not member of Washington bar

The Committee reviewed your inquiry concerning whether the requirements of RPC 3.7 applied to private arbitration hearings under collective bargaining agreements and/or unfair labor practice hearings and was of the unanimous opinion that the term "trial" in that rule applies to such administrative proceedings. The Committee was further of the opinion that Washington's rule would not apply if the lawyer acting as the advocate was not a member of the Washington Bar, nor would it, in those circumstances, prohibit a Washington lawyer from acting as a witness.

1520 1993 RPC 3.7 Lawyer as witness; lawyer in prosecuting attorney's office testifying in case prosecuted by another lawyer in office

The committee reviewed your inquiry concerning the application of RPC 3.7 to a situation involving a lawyer from the office of the prosecuting attorney appearing as a witness in a case being prosecuted by that office. The Committee was of the opinion that the requirement that a lawyer shall not act as an advocate at a trial in which another lawyer in the same firm is likely to be a necessary witness does not apply to the office of the prosecutor because such an office does not meet the definition of "law firm" in the Terminology Section of the Rules of Professional Conduct. The committee noted there may be constitutional or legal questions involved in such a situation which the Committee is not in a position to address. [Editor's note: See State v. Bland, 90 W App 677 (1998) for a contrary view]

The Lawyer/Judge:

1429 1991 RPC 1.7 Trial attorney for federal government serving as judge pro tem; conflict of interest

The Committee reviewed your inquiry concerning the propriety of a trial attorney for the U.S. Department of Justice serving as a judge pro tem in municipal court. The Committee was of the opinion that neither the Rules of Professional Conduct nor the Code of Judicial Conduct would prohibit being so employed. If there were any conflict, it would have to be examined on a case by case basis in which any conflict arose.

1790 1997 RPC 1.4(b); 1.7(b); 1.12

Conflict of interest; part time tribal court judge representing litigants in tribal court

The Committee researched and reviewed your inquiry concerning a part-time tribal court judge's ability to accept cases and determined that RPC 1.12 does not prohibit a part-time tribal court judge either at trial or on appeal from representing a litigant in the

court in which the judge sat, either against the tribe or not, so long as the matter is totally unrelated to any case in which the lawyer has sat in a judicial capacity so long as the lawyer does not run afoul of RPC 1.7(b). The lawyer may also be required to disclose his status as part-time judge and his relationship with the tribe. RPC 1.4(b).

1341 1990 RPC 1.10 Conflict of interest; lawyer serving as part-time judge in courts where other members of firm practice

The Committee reviewed your inquiry concerning your conduct as a part time District Court commissioner and a Municipal Court judge. [The lawyer's firm represented defendants in both courts.] The Committee understood that you intend not to represent any clients in District Court and to set up your office so as to have no contact with District Court cases. The Committee was of the opinion that you could not hear any cases in District Court in which members of your firm were involved, and you could not appear in Superior Court on cases previously heard before you in District Court. The Committee rendered no opinion regarding the Code of Judicial Conduct and suggested that you direct any such inquiry to the Judicial Ethics Advisory Committee.

2195 2009 1.7, 1.8 conflict of interest; attorney hearing examiners The issue raised by your inquiry does not, in the Committee’s opinion, implicate the conflict of interest rules, because in your capacity as a hearing officer, you are not representing a client. The committee expresses no opinion on the applicability of other laws, rules, or regulations.

977 1986 RPC 7.5(c) Firm name with name of lawyer employed full time as hearing officer

The Committee was of the opinion that if you continue to practice with your law firm between eight and twenty hours per week while employed full time as a hearing examiner, it would appear that you would be "actively and regularly practicing with the firm" as required by RPC 7.5(c) and therefore your firm could continue to use your name in the firm name.

1333 1990 RPC 1.11; Formal Opinion

160

Conflict of interest; lawyer who also serves as part-time judge practicing before the same court in different practice areas

The Committee reviewed your inquiry setting forth four questions, and was of the opinion that the first, second and fourth questions involved interpretations of the Code of Judicial Conduct. Such an inquiry should be directed to the Judicial Ethics Advisory Committee. Regarding your inquiry concerning a court commissioner hearing juvenile or family cases in Superior Court and also practicing before the same court in other areas of practice, the Committee was of the opinion that the Rules of Professional Conduct would not prohibit such conduct, provided that you advise your clients of your role so that they would not be mislead into believing that their case would receive any preferential treatment. The Committee was also of the opinion that formal opinion 160, issued in 1975, is still applicable and addresses the issue you raise.

1909 2000 RPC 1.7; 1.11

Conflict of interest; lawyer, employed as bailiff, also provides pro bono legal services before federal agency

The inquiring lawyer is a full time bailiff for a superior court judge and also provides pro bono legal services to claimants before [a federal agency]. The inquiring lawyer asks if such pro bono work creates a conflict of interest with the full time employment. Based upon the facts presented in the inquiry, the committee opined that it does not appear that the inquiring lawyer’s pro bono representation of a claimant in actions that are exclusively heard by federal agencies and courts creates a conflict of interest under the Rules of Professional Conduct with the regular employment as a lawyer-bailiff in a superior court.

1 2008 FO 160, RCW

3.34.110, RPC

1.129a), 1.7, 1.8,

1.9, 1.11, CJC, IO 1333, 1881, 1880, 1429

Assistant city attorney supervising prosecutions for city's mental health court while serving as pro tem judge for county's district mental health court

I. QUESTION PRESENTED This inquiry concerns an Assistant City Attorney who is considering serving as a judge pro tempore (footnote 1) in the County District Court’s Mental Health Court (“CD MHC”). The CD MHC is a “collaborative” court in which the prosecution and defense work together to find the best outcome for criminal cases involving the mentally ill. The Municipal Court has its own mental health court (“MC MHC”), which is entirely separate from the county court system, except that both contract with the same public defender agency and occasionally a defendant will have cases in both courts. As part of his duties, the attorney supervises prosecutions in the MC MHC and he has asked the WSBA for an informal opinion as to possible conflicts if he decides to serve as a pro tem judge in the CD MHC. II. SUGGESTED RESPONSE The Committee is of the opinion that Formal Opinion # 160, issued in 1975, is still applicable and addresses the issue you raise. Nothing in the Rules of Professional Conduct, which controls your functions as an assistant city attorney, bars your service as a part-time judge in an unrelated jurisdiction. As a part-time judicial officer, you may wish to consult the Judicial Ethics Advisory Committee of the Washington State Supreme Court through the Office of Administrator to the Court in Olympia regarding the Code of Judicial Conduct implications of your dual role. III. ANALYSIS a. Applicable Rules Washington law provides that a district court judge shall not act as a judge in a case in which the judge “is directly interested, or in which the judge has been an attorney for a party.” RCW 3.34.110. (footnote 2) The Washington Rules of Professional Conduct (“RPCs”) prevent a lawyer from representing a client in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer (including pro tempore and part-time judges) unless all parties to the proceeding give written informed consent. RPC 1.12(a); comment 1. The RPCs also prohibit a lawyer from representing a client if the representation involves a concurrent conflict of interest. RPC 1.7 and 1.8. (footnote 3) Further, the RPCs prohibit a lawyer from representing a client if it involves a conflict of interest with a former client in the same or substantially related matter. RPC 1.9. The Washington Code of Judicial Conduct (CJC) provides that Judges should “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” CJC Canon 2(A). Accordingly, full-time judges may not practice law. CJC Canon 5(F). However, pro tempore judges are permitted to practice. See Application of the CJC (A)(2)(a)(ii) (“pro tempore judges are not required to comply with… [several sections including] 5 (F).”). Nonetheless, “a person who has been a pro tempore judge should not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise

permitted by the Rules of Professional Conduct.” Id. at (A)(2)(b). b. Ethics Opinions The sole WSBA Formal Opinion on this topic, #160 (1975), states: Inquiry has been made whether a part-time district court judge or commissioner may practice in the court on which he or she serves. In its Code of Judicial Conduct, the American Bar Association has taken the position that a part-time judge (and a commissioner is a judge for purposes of the Code) "should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves, or act as a lawyer in a proceeding in which he has served as judge or in any other proceeding related thereto." Compliance with the Code of Judicial Conduct, Section A (2). The Washington State Supreme Court has taken a less restrictive view. In adopting a slightly amended version of the ABA Code, it provided only that a part-time judge "should not act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto." Preamble, Section 1 (A) (2), 83 Wn. 2d 1101 (1973). Accordingly, a part-time district court judge or commissioner in the State of Washington may practice in the court on which he or she serves, except in those proceedings in which he or she has participated as judge or commissioner or in related proceedings. Such practice is, it should be observed, not without its difficulties. In particular, there is the possibility that a judge or commissioner may, in practice, appear to seek or to receive special deference from colleagues on the bench. Every effort should be made to avoid such an appearance.” See RPC 1.11. The RPC Committee (RPCC) has said that Formal Opinion # 160 is still applicable to questions concerning a Washington lawyer serving as a part-time judge. See Informal Opinion #1333 (1990). The RPCC has issued several additional Informal Opinions on this topic. In general, the RPCC has opined that the attorney’s role as a judge is outside of its purview. See e.g. Informal Opinion #1881. Since the issue involves judicial conduct, the RPCC has stated that the applicable rules are the CJCs and inquiry should be directed to the Judicial Ethics Advisory Committee. Id. For example, a city attorney who also acted as a contract public defender in the same jurisdiction and who also acted as a judge pro tem in the district court was not barred from continuing to serve as a city attorney as long as long as the attorney complied with RPC 1.8 and 1.9. Id. In another inquiry, a part time municipal court judge could also be employed as a deputy prosecutor in a county prosecuting attorney’s office, prosecuting criminal cases in the superior court of the county in which the municipality was located. Informal Opinion #1880 (1999). In that opinion, the RPCC stated that “nothing in the Rules of Professional Conduct, which controls your functions as a county deputy prosecutor, bars your service as a part time judge in an unrelated jurisdiction.” Id. Additionally, a trial attorney for the U.S. Department of Justice was allowed to serve as a judge pro tem in municipal court. Informal Opinion #1429 (1991). Finally, in response

to an inquiry from a court commissioner hearing juvenile and family cases in superior court and also practicing before the same court in other areas of practice, the RPCC opined that nothing in the RPCs barred the practice, so long as the attorney advised his clients of his role so that they would not be misled into believing that their case would receive any preferential treatment. Informal Opinion #1333 (1990). c. Discussion In this inquiry, the lawyer has provided the RPCC with two supporting documents, in addition to the relevant WSBA opinions: (1) a copy of a memorandum he sent to the City Ethics Commission (CEC) detailing his background and specific questions, and (2) a copy of a response from the CEC to an earlier similar inquiry. In the earlier response, the CEC stated that the City Code of Ethics did not prohibit an Assistant City Attorney from sitting as a judge pro tem in County District Court, so long as the employee “does not hear cases that involve judging participants with whom the employee must work as a City Attorney” and “does not use City time or facilities for that purpose.” In the memorandum, the lawyer asked whether the earlier opinion applied to his current plans to serve as a pro tem judge on the CD MHC and specifically whether the CEC would require him to recuse himself in certain situations. For instance, he is concerned with cases dealing with defendants who had previously been prosecuted in the city court, cases in which city personnel were involved, and cases involving expert testimony by state hospital staff with whom the lawyer has worked and trained with in the past. Nothing in the Washington RPCs or CJCs specifically addresses the questions in this inquiry. In general, however, the lawyer is prohibited from representing a client where a conflict of interest is present or may arise. Additionally, as a judge, he would have to continue to “act in a manner which promotes the public confidence in the integrity and impartiality of the judiciary.” Furthermore, if he were to ever become a full-time judge, he would likely be required to stop practicing law. Finally, the lawyer’s particular questions about when he should recuse himself clearly involve judicial conduct and should be directed to the Judicial Ethics Advisory Committee. IV. CONCLUSION In conclusion, nothing in the RPCs prohibits an assistant city attorney from serving as a pro tempore judge in a county district court’s mental health court, so long as the attorney abides by conflict of interest rules when applicable. However, this response does not comment on whether the attorney’s service as a judge would violate the CJCs in any particular circumstance and the attorney should be encouraged to consult with the Judicial Ethics Advisory Committee. [footnote 1: For the purposes of this memo, the terms “pro tempore”, “pro tem”, and “part-time” will be used interchangeably. See Black’s Law Dictionary, p. 1239 (7th ed. 1999).] [footnote 2: See also RCW 3.34.130 (qualifications for a judge pro tempore shall be the same as for a district judge).]

[footnote 3: A concurrent conflict exists if: (1) the representation will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client. RPC Rule 1.7.]

Conflicts of Interest

990 1986 RPC 1.10(b) Conflict of interest; imputed disqualification; representation by firm that previously represented adverse co-defendant

The Committee was of the opinion that a law firm who represents a criminal defendant on appeal from a trial in which a co-defendant testified against the defendant-client, and now wants to employ as an associate a lawyer from the public defender agency which represented the co-defendant and who gained confidences or secrets of the co-defendant during that employment, must withdraw from further representation of the client-defendant pursuant to RPC 1.10(b).

934 1987 RPC 1.7; 4.3; 1.15(d)

Conflict of interest; prosecutor in support enforcement/paternity proceedings

This committee has been asked to provide an opinion on conflicts of interest that appear in situations that may occur in support enforcement and paternity actions commenced by a county prosecutor. The committee has received comment from prosecutors and from public defender associations on the issues that exist. The committee is impressed by the apparently large number of cases routinely handled by prosecutors where one or more of the parties in the proceeding may be relying on the prosecutor's expertise in determining whether to accept negotiated terms of settlement. Likewise, the committee recognizes the significant public interest at stake in the proceedings to establish support obligations and secure payment in a practical and expedient manner. It is the committee's feeling that issuance of strict opinions on the existence or lack of existence of conflicts in the hypothetical fact situations presented may lead to misapplication of the committee's opinion. The better response, in the opinion of the committee, is to set forth the applicable rules; the hypotheticals presented; and a description of the analysis that the committee believes should be made by the prosecutor involved in consideration of the potential conflicts. The hypotheticals submitted are as follows: Tracy is an unwed mother of two. She is currently receiving Public Assistance for her children. As a condition of receiving Public Assistance, she has assigned all her child support rights to the State of Washington (D.S.H.S.). She named Bob as the putative father of her children and D.S.H.S has sent the case to the prosecutor's office under a cooperative agreement, asking it to establish paternity and obtain court ordered child support. Bob appears through his attorney. He admits paternity but denies owing any back

support for Public Assistance already paid to Tracy for the children because he claims he, not Tracy, had physical custody of the children during most of the time Tracy received Public Assistance. He also claims he paid support money directly to Tracy while she was on Public Assistance. Tracy denies both of these allegations. Tracy, in a panic, decides to meet with Bob's attorney in an attempt to "settle out of court." The Deputy Prosecuting Attorney advises her not to meet with Bob's attorney, but to hire her own attorney. She ignores the advice and confesses all to Bob's attorney. Bob's attorney then uses her confessions in responsive pleadings which are designed to convince the court that his client does not owe a duty of reimbursement for Public Assistance paid. Shawna is an unwed mother of one. She received Public Assistance for her child from 1969 through 1984, and has been working at K-Mart since then, earning $4.25 per hour. The State filed a paternity suit in 1983 against Rick, whom she named as the putative father. Rick hired a lawyer and denied paternity. The case is set for trial in 1986. Shawna has signed up through D.S.H.S. for what the State calls "451 services." These services authorize D.S.H.S. to collect support on Shawna's behalf. The D.S.H.S agreement does not authorize the Deputy Prosecuting Attorney to act as Shawna's attorney. The Deputy Prosecuting Attorney's authority derives from RCW 74.20.040 (2) as amended, which reads: "The [D.S.H.S.] secretary may accept applications for support services on behalf of persons who are not recipients of Public Assistance and may take action in appropriate cases to establish or enforce support obligations against the parent or other persons owing a duty to pay moneys." The issues at trial will be paternity, reimbursement for past support owed to the State and to Shawna, current support owed to Shawna, custody and visitation. The State is seeking arrears of over $10,000.00. Shawna wants the maximum current support. Doris is a divorced mother of three. Her divorce decree gives her custody of the children and orders her ex-husband to pay $450.00 per month in child support. Doris is not on Public Assistance. Her ex-husband has not paid support. Both live in the county. The Office of Support Enforcement sends the case to the prosecutor for filing of criminal charges under RCW 26.20.030. Doris has signed an agreement with Support Enforcement which authorizes D.S.H.S. to collect support on Doris's behalf. There is no agreement authorizing the Prosecutor to act as Doris's attorney. The Prosecutor sends a letter to Doris's ex-husband informing that he must begin paying current support and a lump sum of accrued support arrears or else criminal non-support charges will be filed against him. Applicable rules of professional conduct are as follows:

Rule 4.3 Dealing with Unrepresented Person: In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. Rule 1.7 Conflict of Interests: (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) A lawyer presumably believes the representation will not adversely affect the relationship with the other client; and (2) Each client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person or by the lawyer's own interests, unless: (1) The lawyer reasonably believes the representation will not be adversely affected; (2) The client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. The Rules of Professional Conduct do not define "Client." The definition in Black's Law Dictionary is commonly accepted and provides: "Client. A person who employs or retains an attorney, or counsellor, to appear for him in courts, advise, assist, and defend him in legal proceedings, and to act for him in any legal business . . . It should include one who disclosed confidential matters to attorney while seeking professional aid, whether attorney was employed or not. In the context of a paternity action commenced at the request of the Department of Social and Health Services, the prosecutor's first client is the State of Washington, Department of Social and Health Services. Clearly the prosecutor is "employed or retained" by D.S.H.S. when his office accepts (either voluntarily or by compulsion of the law) the responsibility to prosecute the action. The prosecutor's second client may be the natural mother is the prosecutor agrees, impliedly or expressly, to appear for her in court; advise, assist or defend her in the proceedings; or act for her in the proceeding. Additionally the prosecutor may form an attorney/client relationship if he receives confidential information in the process of the initial interview with the natural mother. If the prosecutor advises the natural mother from the onset that he will not represent her in the proceedings, he may avoid the analysis that follows. Otherwise, the committee recommends that in each of the above hypotheticals, at

a minimum, the prosecutor should undertake the following analysis: (1) Will the representation of the mother be directly adverse to the attorney's representation of his other client (D.S.H.S., O.S.E., etc.). If so, then: (a) Will the representation of either the mother or the other client of the attorney be adversely affected by the joint representation by the attorney? If so, separate representation should be arranged. If not, then: (b) Has the mother been given a reasonable opportunity to seek advice of independent counsel? If not, the potential conflicts should be explained and such opportunity should be provided. The prosecutor should obtain authority, if not already received, to disclose the material facts and interests of his other clients. The mother should be fully advised of the attorney's other clients and their respective interests in the litigation. (2) Will each of the clients consent in writing after consultation and a full disclosure of the material facts? If so, such consents should be obtained before the representation continues. (3) Does the client have resources with which to retain independent counsel in the event consent is not obtained? If not, then the attorney should advise the client of the possible availability of private counsel appointed by the court and take such action as is reasonably practicable to assist the client in securing such counsel. (RPC 1.15 [d]). Other issues remaining in the hypotheticals are in many cases a mixture of legal questions and ethical questions. This Committee is restricted from giving opinions as to legal questions.

Scope of Representation – Withdrawal, Fees, and Advice

1169 1988 RPC 1.15(c) Withdrawal; refusal of trial judge to permit withdrawal

The Committee reviewed your inquiry concerning the conduct you should pursue in a situation where you had sought to withdraw from representation of a client on the eve of trial, and trial judge refused to allow your withdrawal. The Committee was of the opinion that you were obliged to follow the order of the Court and that nothing in the RPC 1.15(c) would permit you to withdraw under those circumstances.

1372 1990 RPC 3.4(c); 8.4(d) Advice regarding small claims court The Committee reviewed your inquiry concerning the propriety of lawyers advising clients regarding Small Claims Court. The Committee also reviewed the Idaho formal opinion which you submitted with your inquiry. The Committee was of the opinion that there is nothing in the Rules of Professional Conduct that prohibit a lawyer from advising clients about the existence of Small Claims Court nor advising them about the procedure and conduct of a trial in Small Claims Court. Among other things, the Committee noted that in 1988 the Legislature enacted RCW 12.40.800 which directs the Administrator for the Courts to prepare a model small

claims informational brochure to be made available to all parties of any small claims action. In that brochure it is noted that lawyers are not permitted to represent parties at trial in a small claims action, but it suggests that the party should seek the assistance of trained legal counsel for assistance in preparing the case.

1751 1997 RPC 1.5; 1.15; 8.4 Fee agreement permitting lawyer to withdraw if fees unpaid

[The inquiry concerned] the ethical implications of specific language in a proposed fee agreement, to wit: "I further understand that, if applicable, the additional fee for a trial must be paid no later than the date the case is set for trial. If I do not pay the fees or costs as agreed, I understand that [the attorney] will be relieved of any further obligation to represent me or to appear in court on my behalf and, in that event, I authorize him to withdraw from my case." It is the committee's opinion that because the proposed fee agreement language contemplates withdrawal from a case in violation of RPC 1.15, 1.5 and 8.4, it does not comport with the letter, spirit, intent and meaning of the Rules. In addition, the material meaning of the court rules and substantive case law that covers this issue, is inconsistent with your answer.

1815 1998 RPC 1.5(d)(1) Contingent fee agreement for appeal of dissolution decree

The Committee researched and reviewed your inquiry concerning the appeal of a dissolution decree on a contingent fee basis and determined the following: RPC 1.5 (d)(1) prohibits a contingent fee arrangement in the appeal of that portion of a dissolution decree that challenges the property settlement award of the trial court, and the exception under this RPC for "postdissolution proceedings" does not apply to such actions.

1024 1986 RPC 1.5 Contingent fee agreement [A law firm represented a collection agency that was entitled to 25% of the amount collected, or 50% if the case went to trial. The lawyer's agreement with the collection agency gave the lawyer a 50% contingency fee in whatever amount the collection agency received.] The Committee was of the opinion that your proposed contingent fee agreement is not precluded by RPC 1.5, so long as the requirements of that rule are otherwise complied with.

1517 1993 RPC 1.2; 1.5 Contingent fee agreement terms; authority to settle

The Committee reviewed your inquiry concerning the use of contingent fee agreements which would provide (1) in the event of settlement the attorney will receive either a percentage of the recovery or a flat fee, whichever is greater, while in the event of a recovery following trial, the attorney will simply receive 40%; or (2) the client will not settle the case unless the settlement included a reasonable amount for attorney's fees, reasonableness to be submitted to the court if necessary. The Committee was of the unanimous opinion that a fee agreement provision such as that described in item (1) above, would be permissible under the RPCs, but a provision such as that described in (2) might be improper if it would prevent the client from having the determination of whether or not to settle a case as required by RPC 1.2(a). The Committee determined that the question of whether the client could waive the rights under 1.2(a) is a legal question on which it

could render no opinion, but there was strong feeling that any requirement that a client waive that right would be unenforceable.

1572 1994 RPC 1.2(a) Contingent fee based on greater of recovery at trial or settlement offer

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry regarding a contemplated contract provision in a contingent fee contract. In response to your inquiry, the RPC Committee has evaluated your proposed provision for a contingent fee agreement based on the greater of (1) the recovery obtained at trial, or (2) the amount offered in settlement. The provision would be triggered only if the client rejects a settlement offer that the firm deems "reasonable in light of the circumstances." The response by the Committee was that the provision infringes on RPC 1.2(a) that requires an attorney to abide by the client's decision whether to accept or reject a settlement offer. [Editor's Note: See Formal Opinion 191]

2000 2003 RPC 1.14, 1.8(f), 1.6, CrR 3.1,

Formal Opinions 183, 188, 195

County program governing lawyer`s compensation for representation of indigent criminal defendants

The inquiring attorney asks whether it would be ethically permissible for counsel assigned to represent indigent criminal defendants to participate in a proposed county program governing counsel’s compensation and the provision of other client services, in light of RPCs governing trust accounts, independent professional judgment, and client confidences. [Editor`s note: The county in question contracts with private lawyers to provide indigent criminal defense. The contracts for payment of a flat fee plus reasonable court-approved costs, with half paid at appointment and the rest upon completion of the case. In aggravated murder death penalty cases, the lawyer is paid on a designated hourly rate. A minimum budget for the case through the mitigation phase is negotiated by the lawyer with the court. That amount is paid into the lawyer`s trust account and drawn down as the lawyer invoices the county. A similar process is used to arrive at amount for the remainder of the case. Additional amounts are negotiated with the court at the designated hourly rate.] There appears to be no inherent conflict between the county’s proposal and the trust account, independence and confidentiality obligations of counsel under RPC 1.14, 1.8(f) and 1.6 respectively. Because the proposal includes an advance fee deposit, appointed counsel would need to comply with regulations governing trust account management with respect to the fee advance. See RPC 1.14. Although assigned counsel is required by statute to provide sufficient information for the court to determine whether requested fees and expenses are necessary to provide an adequate defense, there would seem to be no reason why providing information sufficient for this purpose would, of necessity, compel disclosure of client confidences or secrets contrary to RPC 1.6. Assuming for the sake of argument that confidences or secrets would need to be disclosed, there are procedures that counsel could use to protect those confidences and secrets; for example, ex parte and sealed pleadings, as

recognized in CrR 3.1 might be employed; appointment of a special master by the court could be sought; or assignment of such review to a judge other than the trial judge would be potential solutions. The same would seem to be true with respect to providing information adequate to document that services for which compensation is claimed have been provided. See Formal Opinions 183, 188 and 195. Finally, although the county’s proposal refers to “negotiating” a minimum budget with the trial/appointing judge, we would not understand the term “negotiate” this context to contemplate the court imposing its views of proper defense strategy on appointed counsel, or to authorize appointed counsel’s subordination of independent professional judgment to such views. See RPC 1.8(f). We caution that the proposal we have been asked to consider is very general, and that we are neither approving particular rules that the county may adopt nor the disclosure of specific information. Appointed counsel will have to determine whether particular rules continue to allow for conduct consistent with ethical obligations and the scope of information that ethically may be provided for purposes of securing compensation and other services.

191 1994 RPC 1.2, 1.5, 1.8 Contingent Fee May Not be Based Upon the Larger of the Recovery Obtained at Trial/Arbitration or the Amount Offered in Settlement

Issue: May a lawyer properly include a provision in a contingent fee contract which states that if the client rejects a settlement offer that the lawyer deems "reasonable in light of all the circumstances," then the contingent fee will be based upon the larger of the recovery obtained at trial/arbitration or the amount offered in settlement? Answer: No. The provision infringes on Rule 1.2(a) of the Rules of Professional Conduct that requires a lawyer to abide by a client’s decision whether to accept or reject a settlement offer. Discussion: Contingent fee contracts are specifically approved by the Rules of Professional Conduct. See, RPC 1 .5(c), 1.8(e)(2), 1.8(i)(2). However, the RPCs also impose certain restrictions upon such agreements. For example, a lawyer may not charge a contingent fee for representation relating to either marital dissolution or criminal defense. See, RPC 1.5(d). A contingent fee agreement must always be in writing, See, RPC 1.5(c), and, as with all fee arrangements, the contingent fee must be reasonable. See, RPC 1.5(a), 1.8(e)(20, 1.8(i)(2). In addition to those Rules which apply to contingent fee agreements by their express terms, any such agreement also must not contravene any other requirement of the RPCs. One such requirement is contained in RPC 1.2(a). That rule provides in relevant part (emphasis added): A lawyer shall abide by a client’s decision whether to settle a matter.

The proscription is phrased in mandatory terms. Although not defined by the RPCs, "abide" is generally understood to mean "to await submissively; accept without question or objection ... to submit to." See, Webster’s Third International Dictionary (1986). Thus, RPC 1.2(a) requires a lawyer to "accept without question" a client’s decision to accept or reject a settlement offer. Moreover, as a legal matter, courts also affirm a client’s unfettered right to accept or reject a settlement offer. See, Bernard v. Moretti, 518 N.E.2d 599, 601 (Ohio App. 1987) (a client does not breach a contingent fee agreement by refusing to accept a settlement offer even if the refusal was foolish; it is solely within the client’s discretion to accept or reject a settlement offer); Goldman v. Home Mutual Ins. Co., 126 N.W.2d 1, 5 (Wis. 1964) ("Claim belongs to the client and not the attorney; the client has the right to compromise or even abandon his claim if he sees fit to do so"); Giles v. Russell, 567 P.2d 845, 850 (Kan. 1977) (". . .neither a valid contingent fee contract nor an attorney’s lien can interfere with a client’s right to settle"); but see, Hagans, Brown & Gibbs v. First National Bank of Anchorage, 783 P.2d 1164, 1167 (Alaska 1989) ("Should the client fail to exercise control over the litigation in a manner consistent with the reasonable expectations of the parties, the client may become liable to his attorney"). The proposed provision is antithetical to a lawyer’s duty to "abide by" a client’s decision regarding settlement. Rather than accept a client’s settlement decision without question, the provision—and thus the lawyer by extension—restricts the client’s freedom to reject a settlement offer. In very real terms, the provision functions to economically coerce the client into accepting an offer that the client might otherwise perceive to be inadequate. The theoretical possibility of a non-coercive use does not justify permitting this provision. Regardless of any coercive effect the provision may have, the client who does exercise his or her rightful prerogative to reject a settlement offer is directly penalized. The provision shifts all downside risk of the litigation—otherwise shared by the lawyer and client alike—to the client alone. Nonetheless, the lawyer remains entitled to share in all upside risk. "It is not necessary that the contract actually caused the feared evil in a given case; its tendency to have that result in [sic] sufficient." Wunschel Law Firm, P.C. v. Clabaugh, 291 N.W.2d 331, 335 (Iowa 1980). For the foregoing reasons, it is the opinion of the Rules of Professional Conduct Committee that a contingent fee contract may not include a provision that bases the contingent fee upon the larger of the recovery obtained at trial/arbitration or the amount offered in settlement in the event that the client rejects a settlement offer that the lawyer deemed reasonable. Such a provision is unduly coercive to a client’s choice with respect to settlement or trial of the client’s matter. [amended 2009]

1647 1995 RPC 1.7; 1.8(f); 1.9

Conflict of interest; public defender agency appointing and paying outside lawyers when conflict arises

The Committee reviewed your inquiry regarding the potential for conflict of interest in entering into a contract in which the public defender office would administer a list of conflict attorneys to be designated by the defender office and paid out of the

defender office budget. The Committee noted that public defenders and public defender agencies are held to the same ethical criteria as private lawyers and/or private law offices. The Committee was of the opinion that the proposed contract language raises conflict of interest issues under RPC 1.7 and 1.9 in requiring the defenders office to recognize a conflict and hire outside counsel out of their budget to provide representation. The Committee thought the situation was analogous to that discussed in Tank v. State Farm Insurance 105 Wn. 2nd 381 (1986). The Committee was also of the opinion that such a plan would raise issues under RPC 1.8(f) in that the public defender could not require that outside attorney to supply confidential information from the client to the public defenders office nor, even for the purposes of reviewing billing, provide information that would reveal trial strategy, work product, or confidences or secrets where the public defender is representing a potential adverse co-defendant. The Committee thought there might be other ethical issues raised by such an agreement as well, and wishes to review the entire contract.

1512 1993 RPC 1.2(a); 1.15 Fee agreement; withdrawal when attorney believes appeal imprudent; authorization of settlement

The Committee reviewed your inquiry wherein you represented a couple on a claim for personal injuries. Prior to undertaking the work, you deleted at the client's request, a portion of your original Legal Representation Agreement, which indicated that the agreement did not extend to representation of the client in any appellate action, unless otherwise stated. The inquiry indicates that the case went to trial and a jury verdict lower than you had anticipated was returned. You then inquired whether or not you were obligated to pursue the appeal given the terms of your agreement. You further inquired whether or not your fee must be based upon the contingent fee percentages provided in the written agreement. The Committee directed that you be advised that you could withdraw from the case/appeal pursuant to RPC 1.15(b)(3), if you honestly and reasonable believe prosecuting the appeal was imprudent [from the client's perspective]. However, the Committee provided no opinion as to whether such action of withdrawal would be in breach of contract or the fee to which you would be entitled. The Committee noted that any withdrawal must be consistent with RPC 1.15(d). The Committee also wished to direct your attention to RPC 1.2(a) which gives the client the right to authorize settlement and noted that your contract, with respect to its provisions that the "client agrees to make no compromise or settlement in this matter without the approval of the Counsel", under Section IIA appears to violate this ethical provision.

Client Relations – False Testimony

1123 1987 RPC 3.3(c); 1.6 Client confidences and secrets; disclosure of false testimony

The Committee considered your inquiry asking what you should do when you discovered your client in a dissolution trial had given false testimony regarding the amount received from the sale of a car. The Committee understood that no findings or decree have yet been entered. The Committee was of the opinion that, pursuant to RPC 3.3(c) and 1.6, you would not be permitted to disclose that information, but that you should seek the consent of your client to disclose it, and if that consent is denied, you should withdraw.

Communication with Jurors, Judges, and Witnesses

2204 2010 RPC 3.5(c), 8.4(d), Informal Opinion

1030, 2133

Post Verdict Communication with Jurors

I. QUESTION PRESENTED Four public defender organizations jointly request a formal opinion on the following issue: Informal Ethics Opinion 1030 and 2133 “agree that Rules of Professional Conduct (“RPC”) 3.5 and 8.4(d) advise lawyers not to disclose to jurors, post-verdict, information that was excluded from evidence.” II. BRIEF ANSWER The Rules of Professional Conduct Committee issued the following informal opinion: Post verdict disclosure to jurors of evidence that was excluded at trial would violate RPC 3.5(c) if the communication with the juror involves misrepresentation, coercion, duress or harassment. Post verdict disclosure of excluded evidence is not a per se violation of RPC 8.4(d); however, disclosure could constitute a violation in certain circumstances. III. RULES OF PROFESSIONAL CONDUCT IMPLICATED RPC 3.5 and RPC 8.4(d). IV. DISCUSSION

A. Background According to the inquirers, the county prosecutor's office does not have a formal policy on whether or not to disclose evidence that was excluded at trial to jurors during post verdict communications. Apparently county prosecutors recently disclosed excluded evidence to jurors during post verdict communications in two cases. On the other hand, the city attorney’s office has apparently agreed with the public defense agencies that it will not disclose evidence in discussions with jurors that was not admitted at trial. 1. Based on this inconsistency, and in light of Informal Opinions 1030 and 2133, the inquiring parties are requesting a formal opinion on this topic. B. Analysis 1. RPC 3.5 RPC 3.5(c) governs communications with jurors: A lawyer shall not: . . . (c) communicate with a juror or prospective juror after discharge of the jury if: (1) the communication is prohibited by law or court order; (2) the juror has made known to the lawyer a desire not to communicate; or (3) the communication involves misrepresentation, coercion, duress or harassment . . . Comment 3 to RPC 3.5 provides: A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication. If RPC 3.5(c)(1) or (2) applies, there will be no communication with jurors. Accordingly, RPC 3.5(c)(3) is the relevant provision. RPC 3.5(c)(3) only prohibits communication with jurors that “involves misrepresentation, coercion, duress or harassment.” Applying this provision to evidence that is excluded from trial, it would be misconduct for a lawyer to disclose excluded evidence to a jury in a manner involving misrepresentation, coercion, duress or harassment. Examples might include misrepresenting the nature of the evidence or the reason for exclusion. Examples might also include disclosing the excluded evidence in a manner that is coercive, harassing or causes duress. Disclosure of excluded

evidence to a juror after the conclusion of a trial would violate RPC 3.5(c) under these circumstances. 2. 2. RPC 8.4(d) RPC 8.4(d) provides that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice[.]” The Washington State Supreme Court has concluded that the “rule only extends to violations of practice norms and physical interference with the administration of justice.” Disciplinary Proceeding Against Curran, 115 Wn.2d 747, 766, 801 P.2d 962 (1990). 3. Informal Ethics Opinion 1030 (1986), which was issued prior to the adoption of RPC 3.5, concluded: A prosecutor informed a juror in discussions following the verdict of the defendant’s criminal record. The Committee was of the opinion that, pursuant to RPC 8.4(d), that prior to the end of the jury term, it is improper for a lawyer to disclose information to the jurors which is inadmissible because it is prejudicial. Informal Ethics Opinion 2133 (2006), which was issued subsequent to the adoption of RPC 3.5, concluded: The inquiring lawyer asks whether Informal Opinion 1030 prohibits prosecutors from informing jurors, after they have been excused from further jury duty, that the defendant has a prior criminal record. The committee unanimously opined the following: The right of trial counsel to communicate with jurors after verdict and discharge is governed by RPC 3.5. The content of that communication is also covered by RPC 8.4(d). Disclosure to discharged jurors of evidence that was excluded by the trial court may have a prejudicial effect on the system of justice by suggesting the juror was deprived of reliable evidence casting the juror’s verdict in doubt. This, in turn, may make jurors less willing to rely on the evidence admitted by the trial court in future trials and may decrease the willingness to limit consideration of evidence in a future case as the juror’s oath requires. Informal Opinion 1030 reflects this concern with jurors who immediately will be subject to call on another jury in the same period of jury service. The committee believes that the same concerns under RPC 8.4(d) may be applicable post juror service. Informal Opinions 1030 and 2133 relied on RPC 8.4(d). Informal Opinion 1030

concluded with little analysis that disclosure of evidence that is inadmissible would violate RPC 8.4(d) if made to jurors after trial but before the jury term was over. 4. Informal Opinion 2133 considered the same question posed in Informal Opinion 1030 as applied to jurors whose term was over. Informal Opinion 2133 concluded that disclosure of excluded evidence may be prejudicial to the administration of justice by “suggesting the juror was deprived of reliable evidence casting the juror’s verdict in doubt.” The opinion suggests that this might make jurors less willing to rely on, and limit consideration to, evidence admitted in future case as the juror’s oath requires. There is the potential that the concerns expressed in Informal Opinion 2133 could be realized. However, to assume that disclosing excluded evidence will cause problems for future jurors presumes that jurors do not know or understand that evidence is often excluded from trial for various reasons, and also presumes that jurors would disregard their oath as well as jury instructions in future cases. In fact the contrary presumption is true. Jurors are presumed to follow the court’s instructions. State v. Lord, 117 Wn.2d 829, 861, 822 P.2d 177 (1991). These instructions include deciding the facts based only on the evidence admitted at trial and disregarding any evidence that was not admitted. 5. Accordingly, there should not be a per se violation of RPC 8.4(d) any time a lawyer discloses excluded evidence to a juror after the conclusion of a trial. Rather, whether RPC 8.4(d) is implicated should depend on the specific facts of the disclosure and whether under the circumstances the lawyer’s conduct was “prejudicial to the administration of justice.” See Curran, 115 Wn.2d at 766. Although there are arguments in favor of a policy of strict non-disclosure, such a rule seems more appropriately addressed by way of a court rule. 6. V. CONCLUSION It is common practice in Washington state court for lawyers to engage in post verdict communication with jurors. Jurors often ask the lawyers questions that touch on excluded evidence. Lawyers may discuss the case, including excluded evidence, as long as they are careful to do so in a manner that does not violate RPC 3.5(c) (communication involving misrepresentation, coercion, duress or harassment) or RPC 8.4(d) (conduct prejudicial to the administration of justice). Informal Ethics Opinions 1030 and 2133 are hereby withdrawn. Footnotes: 1. While the county example involves evidence excluded from trial, the city

example involves evidence that was not admitted at trial – which could include excluded evidence as well as evidence that was not offered by either party for whatever reason. Because the inquiry asks about excluded evidence, this memorandum is limited to that question. 2. Other states have concluded that post verdict disclosure of excluded evidence is prohibited if made with an improper intent. For example, California Formal Opinion No. 1987-95 concludes: . . . [A]bsent a court directive to the contrary, an attorney may disclose to jurors after the trial evidence which was excluded at trial as long as in doing so the attorney does not intend to harass or embarrass or influence the juror in future jury service. Colorado Formal Opinion No. 70 (1985)(Addendum Issued 1995) concluded: After a verdict has been returned, it is improper for an attorney who has participated in the trial to tell the jury about information that was not presented at trial, if such information is disclosed to the jury with the intention of or in the spirit of criticizing the jury’s decision, influencing the actions of jurors in future jury service, harassing the jury, or otherwise behaving improperly toward jurors in any manner prohibited by the Code of Professional Responsibility. This rule applies whether the information not presented was suppressed or inadmissible pursuant to a ruling by the judge in the case. A Texas Ethics opinion concluded that “[a] letter to a juror is improper if written for improper purpose, such as the purpose of suggesting that the law unjustifiably kept important, relevant evidence from the jurors in a case previously before the jurors.” Opinion 278 (1964). 3. The Curran Court explained: Decisions in this jurisdiction show that conduct deemed prejudicial to the administration of justice has generally been conduct of an attorney in his official or advocatory role or conduct which might physically interfere with enforcing the law. See, e.g., In re Johnson, 114 Wn.2d 737, 738-42, 790 P.2d 1227 (1990) (conversion of trust fund money to personal use); In re Lynch, 114 Wn.2d 598, 600-01, 789 P.2d 752 (1990) (taking photos of undercover police to show to a friend who had a cocaine problem); In re Krogh, 85 Wn.2d 462, 464, 536 P.2d 578 (1975) (conspiracy in official capacity to violate civil rights by breaking into the office of Daniel Ellsberg's psychiatrist and stealing documents). Curran, 115 Wn.2d at 764-65.

4. RPC 3.5 did not exist at the time Informal Opinion 1030 was issued and did not incorporate the conclusion of Informal Opinion 1030. 5. Washington Pattern Jury Instructions Criminal (WPIC) 1.02 (2008) provides in part: It is your duty to decide the facts in this case based upon the evidence presented to you during this trial. . . . . . . The evidence that you are to consider during your deliberations consists of the testimony that you have heard from witnesses and the exhibits that I have admitted during the trial. If evidence was not admitted or was stricken from the record, then you are not to consider it in reaching your verdict. . . . 6. The local civil rules for the United States District Court, Western District of Washington prohibit any post verdict contact with jurors, absent leave of court. The rule provides: “counsel shall not contact or interview jurors or cause jurors to be contacted or interviewed after trial without first having been granted leave to do so by the court.” Local Rules W.D. Wash. CR 47(b). The note following the rule explains that this prohibition is based on federal law: In Smith v. Cupp, 457 F.2d 1098[,1100] (9th Cir. 1972) the Court of Appeals for the Ninth Circuit stated: ". . . this court has held, in a federal case, that it is improper and unethical for lawyers to interview jurors to discover what was the course of deliberations of a trial jury. Northern Pacific Railway Co. v. Mely, 210 F.2d 199, 202 (9th Cir. 1954).” Florida similarly prohibits contact with jurors “after the discharge of the jury for any purpose before filing notice with the court.” Opinion 69-17 (1969).

1250 1988 RPC 3.3(f); 3.5(b) Criminal defense; ex parte communication with judge.

RPC 3.3 (f) requires an attorney to inform a tribunal of all relevant facts known to the attorney when in an ex parte proceeding. The purpose of such disclosure is to permit the tribunal to make an informed decision. The disclosure of relevant facts is required whether adverse to a client. In RPC Inquiry #1250, we assume that the defense attorney did not inform the tribunal of the Prosecuting Attorney's sentencing recommendation. The defense attorney did not inform the Prosecutor he/she would have his client enter a guilty plea and receive sentence. The Prosecutor's recommendation is a relevant fact requiring disclosure so that the tribunal can make an informed decision on sentencing. Thus, under these facts as assumed here, RPC 3.3(f) would not sanction the non-disclosure to the tribunal.

Apparently, we can assume that there is a standard procedure known to the local bar relating to Pre-trial Agreements. The defense attorney is assumed to have told the Prosecutor that he/she would get back as to executing the Agreement. This created a situation in which the Prosecutor could reasonably expect the defense attorney to respond to the Agreement before having his client appear before a judge to be sentenced. As such, the defense attorney's conduct in not getting back to the Prosecutor before taking his client to court is dishonest and may be deceitful and misrepresentative as those terms are commonly used. Accordingly, such conduct would violate RPC 8.4 (c). Assuming that a tribunal is being fully informed in ex parte proceedings [see RPC 3.3(f)] serves the purpose of judicial administration, the defense attorney's conduct may violate RPC 8.4 (d). We note also that the RPC preamble states that "A consequence obligation of lawyers is to maintain the highest standards of ethical conduct." This urges the highest, not the minimally acceptable, level of conduct. A lawyer who gives his word should abide by it.

1020 1986 RPC 3.4(a), 8.4(a), 88-2

Advice by Prosecuting Attorneys to Prospective Witnesses [Published Informal Opinion 88-2.]

[Formerly published as Published Informal Opinion 88-2. All Informal Opinions are consolidated in this database.] We have been requested by both defense and prosecuting attorneys to provide guidance as to what advice a prosecutor may ethically offer to witnesses regarding interviews with defense attorneys or investigators. The inquiries raise the issues of whether a prosecutor may advise a witness to refuse to be interviewed by the defense, whether a prosecuting attorney may encourage witnesses not to be interviewed unless a prosecutor is present and whether a witness may be advised of his or her right to be represented by the prosecutor or a person of his or her choice during the defense interview. We offer the following advice. Question (1): May a prosecutor discourage witnesses from talking with a defense attorney or investigator? It is well established that neither the prosecutor nor the defense may obstruct an attempt by opposing counsel or their agent to communicate with a prospective witness. RPC 3.4(a) provides that a lawyer shall not: "Unlawfully obstruct another party`s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value." A lawyer shall not counsel or assist another person to do any such act. RPC 8.4(a). Similarly, the American Bar Association`s Standards for Criminal Justice, "The Prosecution Function," explicitly states the prosecutor`s obligation:

"A prosecutor should not obstruct communication between prospective witnesses and defense counsel. It is unprofessional conduct to advise any person to decline to give information to the defense." Section 3.3.1(c), "The Prosecution Function," ABA Standards for Criminal Justice, 2d Ed (1980) at 3-37. The comments to the ABA Standards enunciate the rationale underlying the standard, and suggest guidelines for prosecutorial conduct in contacting witnesses. Prospective witnesses are nonpartisan; they should be regarded as impartial spokesmen for the facts as they see them. Because witnesses do not "belong" to either party it is improper for a prosecutor, defense counsel, or anyone acting for either to suggest to a witness that he not submit to an interview by opposing counsel. It is not only proper but it may be the duty of the prosecutor and defense counsel to interview any person who may be called as a witness in the case (except that the prosecutor is not entitled to interview a defendant represented by counsel). In the event a witness asks the prosecutor or defense counsel or a member of their staffs whether it is proper for a witness to submit to an interview by opposing counsel or whether he is under a duty to do so, the witness should be informed that, although he is not under legal duty to submit to an interview, it is proper and may be the duty of both counsel to interview all persons who may be witnesses and that it is in the interests of justice that a witness make himself available for interview by counsel. Standards (Commentary), supra, at 3-38, 39. We believe this reasoning is sound and conclude that a prosecutor who discourages or otherwise obstructs witnesses from consenting to defense interviews would violate RPC 3.4. We note that this ethical principle is embodied in CrR 4.7(h), which provides: (1) Investigations not to be impeded. Except as otherwise provided with respect to protective orders and matters not subject to disclosure, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons other than the defendant having relevant material or information to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel`s investigation of the case. While the Committee may not render legal advice, we note that the Washington Supreme Court has held that conduct by the prosecution which interferes with defense counsel`s ability to interview alibi witnesses is a violation of a defendant`s constitutional rights. In State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976) the prosecution held a special inquiry judge hearing and summoned all of the defense alibi witnesses to appear. The prosecutor instructed the alibi witnesses not to discuss their testimony before the inquiry judge with defense counsel. The trial court`s order dismissing the case was affirmed. The Supreme

Court held: A defendant is denied his right to counsel (U.S. Const. amend. 6; Const. art 1 §22, (amendment 10)) if the actions of the prosecution deny the defendant`s attorney the opportunity to prepare for trial. Such preparation includes the right to make a full investigation of the facts and law applicable to the case. Id. at 180. Question (2): May a prosecutor encourage witnesses not to be interviewed unless a prosecutor is present? We believe that encouraging witnesses not to be interviewed unless a prosecutor is present constitutes obstructing access to the witness, which is prohibited by RPC 3.4. The comments to Section 33.1(c) of the ABA Standards state: Counsel may properly request an opportunity to be present at opposing counsel`s interview of the witness, but he may not make his presence a condition of the interview. Standards (Commentary), supra, at 3-39. The leading federal case on this issue is Gregory v. United States, 369 F2d 185, 188 (D.C. Cir. 1966), cert. denied, 396 U.S. 865 (1969). The court stated: ...He (the prosecutor) did admit that he advised the witnesses not to talk to anyone unless he, the prosecutor, were present. We accept the prosecutor`s statement as to his advice to the witnesses as true. But we know nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have equal opportunity to determine, through interviews with the witnesses, what they will testify to. In fact, Canon 39 of the Canons of Professional Ethics makes explicit the propriety of such conduct. "A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party. The court held that the prosecutor`s advice to the witnesses that they not talk to anyone unless the prosecutor was present was an impermissible interference with the defense preparation and denied the defendant a fair trial. See also Coppolino v. Helpern, 266 F. Supp. 930, 935-36, (S.D. N.Y 1967). Ethics Opinion 84-3 of the Alaska Bar Association reached the same conclusion: A prosecutor or defense counsel may not mail a brochure to his potential witnesses which states that they should refuse to talk to the opposing counsel unless the lawyer or a member of his office is present for the interview and that they should not allow themselves to "be pressured into an on the spot interview." State policy, as evidenced by the statutory and disciplinary rules, is to facilitate the process of interviewing witnesses by requiring cooperation, disclosure and

noninterference of both the prosecutor and defense counsel. Crim. R. 16(b)(1); DRs 7-102(A)(3), 7-103(B), 7-109 (3/9/84). ABA/BNA Lawyers` Manual on Professional Conduct Sec. 801:1202. Question (3): May a prosecutor advise a witness of his or her right to be represented by a person of the witness`s choice during a defense interview? We believe it is permissible for the prosecutor to advise a witness of his or her rights as a witness. Those rights include the right, if the witness chooses, to have the prosecution present at a defense interview. The commentary to §3.3.1(c), ABA Standards, "Prosecution Function," states: Counsel may properly request an opportunity to be present at opposing counsel`s interview of a witness, but he may not make his presence a condition of the interview. Id., at 3-39. The Wisconsin Supreme Court adopted this commentary as a guideline for Wisconsin prosecutors, State v. Simmons, 203 N.W. 2d 887 (1973) and Illinois, People v. Steele, 124 Ill. App. 2nd 761, 464 Ne. 2d 788 (1984); People v. Fuller, 117 Ill. App.2nd 1026, 454 N.E. 2d 334 (1983) and a number of federal circuit courts see e.g., U.S. v. Bittner, 728 F.2d 1038 (8th Cir. 1984); U.S. v. Rich, 580 F.2d 929 (9th Cir. 1978); U.S. v White, 454 F.2d 435 (7th Cir. 1972) have reached the same result. In recognizing the right to provide this advice, however, we caution that a prosecutor may not condition the interview on the prosecutor`s presence or in any other way obstruct the ability of the defense attorney to properly prepare for trial. As the Ninth Circuit stated: It is imperative that prosecutors and other officials maintain a posture of strict neutrality when advising witnesses of their duties and rights. Their role as public servants and as protectors of the integrity of the judicial process permits nothing less. U.S. v. Rich, supra at p. 934. We believe that the best practice is for a prosecutor to include in the advice given to witnesses regarding their rights the essence of the following from the commentary to the ABA Standards for the Prosecution Function. . . . The witness should be informed that, although he is not under a legal duty to submit to an interview, it is proper and may be the duty of both counsel to interview all persons who may be witnesses and that it is in the interests of justice that a witness make himself available for interview by counsel.

Id. at p. 3-38-39. 801 1986 RPC 4.2, 8.4(a),

86-2 Interviews By Prosecuting Attorneys of Represented Defendants Concerning Matters Unrelated to the Representation [Published Informal Opinion 86-2]

[Formerly published as Published Informal Opinion 86-2. All Informal Opinions are consolidated in this database.] An inquiry has been submitted to the Rules of Professional Conduct Committee concerning the ethical propriety of a prosecuting attorney requesting a law enforcement officer to contact and interview a defendant, who is incarcerated pending trial and is represented by counsel, concerning the defendant`s knowledge of the criminal activities of third persons. In the situations at issue, the purpose of the interview with the incarcerated defendant is not to obtain information concerning the defendant`s criminal activity but to obtain information concerning that defendant`s knowledge of the criminal activities of a third person. A frequent situation involves asking the incarcerated defendant whether a cellmate has made admissions concerning the cellmate`s involvement in crimes totally separate and independent from the crime the defendant is charged with. In the situation presented, the prosecuting attorney knows the defendant is represented by counsel in connection with the pending case but does not contact counsel to seek permission for the interview prior to the interview occurring. The inquiring attorney contends that a reasonable defendant would believe that cooperation with the prosecuting attorney or the law enforcement officer in providing information concerning the third person`s criminal conduct would benefit the defendant because a defendant would believe that he or she would receive some future leniency or consideration because of cooperation. RPC 4.2 provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." In addition, RPC 8.4(a) provides that it is professional misconduct for a lawyer to violate the Rules of Professional Conduct either personally or "through the acts of another." The Committee is of the opinion that contacts as described above would not violate the Rules of Professional Conduct unless the conduct of the prosecuting attorney personally, or a law enforcement officer acting at the direction of the prosecuting attorney, was such that the discussions with the prosecuting attorney or those acting on behalf of the prosecuting attorney would affect the defendant`s case. If the prosecuting attorney or a law enforcement officer acting on behalf of the prosecuting attorney were to lead a defendant to the belief that future leniency or consideration in connection with the pending case could result, then a violation of RPC 4.2 would occur because the future considerations relate to the

pending case which is the "subject of the representation." In such situations, RPC 4.2 requires the consent of the defendant`s lawyer before the communication occurs. Mere questioning concerning an unrelated matter such as a jail crime does not violate RPC 4.2. However, the Committee recognizes that a significant number of defendants in custody might expect that their cooperation might result in leniency in their own case. To avoid uncertainty, the better practice would be for the interviewer expressly to advise the defendant that the discussion with regard to the third person has no relation to the defendant`s pending case and that whether the defendant answers or not, and regardless of the answers given, such will not be given any consideration whatsoever in the handling or outcome of his or her case. The Committee recognizes that law enforcement officers act independently and that the Rules of Professional Conduct apply only to the conduct of lawyers. A prosecuting attorney, however, is responsible for the actions of law enforcement officers acting at the direction or with the permission of the prosecuting attorney. RPC 8.4(a). Dissenting Opinion I would make the following changes in the next to last paragraph of the Opinion: Mere questioning concerning an unrelated matter may or may not give rise to a reasonable belief that the discussion will benefit the defendant`s case depending on the circumstances. However, the Committee recognizes that a significant number of defendants in custody might expect that the cooperation might result in leniency in their own case. The interviewer should expressly advise the defendant that the discussion with regard to the third person has no relation to the defendant`s pending case and that whether the defendant answers or not and regardless of the answers given, such will not be given any consideration whatsoever in the handling or outcome of his or her case. The majority acknowledges that a "significant number of defendants in custody might expect that their cooperation might result in leniency" in their pending case. If that is true, and I agree that it is, a defendant having such expectations needs the assistance of his or her lawyer before and in connection with any such discussions. I am concerned that the majority opinion may be read by some as making it optional or discretionary for the interviewer to give the cautionary language which the majority identifies as the "better practice." I believe that the prosecuting attorney should have the right to interview regarding unrelated matters but faced with the finding that "a significant number of defendants" may construe the situation as one which potentially impacts their pending case, then, and in those circumstances, I believe that the prosecuting attorney should refrain from the discussion unless it is first made unmistakably clear that whether the defendant

participates in the discussion or not, or answers or not, and regardless of the answers given, such will not be given any consideration whatsoever in the handling or outcome of his or her case. That would lay the cards on the table and would tend to correct the misunderstanding which everyone agrees will affect "a significant number of defendants in custody."

2010 2003 RPC 4.2 public defender, communication with represented parties

The inquirer asked: (1) Whether a public defender who is representing a client on a matter before a court may represent the same client on a different and unrelated matter before the same court when the client consents to the public defender’s representation on the record, but a different attorney had been assigned to represent the client on the second matter? (2) Whether the public defender must contact the client’s attorney on the second matter before asking for the client’s consent to the public defender representing the client on the second matter when the second matter is being heard by the same court as the first matter? The committee opined the following: (1) A public defender may represent a client on more than one matter if the client consents to such representation and the public defender is competent to represent the client on each matter. (2) The Rules of Professional Conduct do not require the public defender to contact the attorney assigned to represent the client on the second matter prior to discussing such representation with the client. The committee’s opinion is based on the following: Some courts may enter into agreements to hear matters such as release or bail issues that are before other courts. A client who has more than one matter pending in more than one court may have more than one attorney assigned to handle each of the matters. Because of the authority given to a court to adjudicate a matter that did not originate in that court, the assigned counsel for each matter may not be present when all of the client’s matters are adjudicated. DISCUSSION A. A public defender may represent a client on more than one matter if the client consents. There is nothing in the Rules of Professional Conduct that prohibits a public defender from representing a client on more than one matter if the client consents so long as the public defender meets the requirements for representation in RPCs 1.1 (competence), 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication), 1.6 (confidentiality), 1.7 and 1.8 (conflicts of interest) and 1.13 (disability). State of Washington Ethics Advisory Opinion 02-22 implicitly recognizes that a client who is represented by counsel on a matter may nevertheless choose to represent himself pro se on the

same matter. The opinion holds that a judge will not violate the Code of Judicial Conduct by accepting such representation. The judge need only make it known on the record that (1) the judge is aware of the representation and (2) that the defendant has chosen to waive his right to counsel. B. A public defender undertaking to represent a client on more than one matter need not contact the client’s assigned attorney before doing so. RPC 4.2 regulates an attorney’s communications with a party known to be represented by counsel. However, RPC 4.2 is not implicated here as the purpose of RPC 4.2 is to prevent improper contact with an opposing party represented by counsel. RPC 4.2 states: In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. RPC 4.2 is meant to prohibit communication with a represented party about a “matter” if an attorney has an interest in the “matter” (i.e., has an interest in the matter or represents a party with an interest in the matter that is opposite to that of the represented party.) If the attorney seeks to communicate with a party about a matter and the attorney clearly has no interest whatsoever in the matter upon which he seeks to communicate, then such communication would not be prohibited by RPC 4.2. See Wright v. Group Health Hospital, 103 Wash.2d 192, 197 (1984); see also Barrie Althoff, Ethics and the Law: Communicating With Represented Persons (2000). Because the public defender is not adversarial to the client, RPC 4.2 does not prohibit the public defender from communicating with the client about the second matter even though the client is represented by different counsel.

Lawyer Client Relationship - Scope

1463 1992 RPC 1.2; 1.4; 3.3 Decisionmaking authority; waiver of speedy trial right in juvenile proceeding without client's permission

The Committee reviewed your inquiry regarding waiver of an absent juvenile defendant's speedy trial rights. The Committee is of the opinion that pursuant to Rules 1.2 and 1.4 of the Rules of Professional Conduct, a lawyer has a duty to consult with a client if possible. If it were not possible because the client had never contacted the lawyer and was absent from the court appearance, the lawyer must make inquiry of the court whether the client had received notice to appear. That is required by CrR 3.3. If so, then the lawyer must use his or her best judgment whether it is in the client's best interest to waive the speedy trial right. The Committee also directed me to remind you of your obligations of candor toward the tribunal as set out in RPC 3.3.

1201 1988 RPC 1.6; 1.7 Conflict of interest; client confidences and secrets; motion to withdraw; scope of representation of appointed criminal defense lawyer

The Committee reviewed the many issues raised by your letters concerning your representation of a client in a criminal proceeding wherein your relationship with a client has been very difficult, but the trial court has not permitted you to withdraw. In answer to the questions presented, the Committee had the following opinions. First, the Committee was of the opinion that since you had been appointed only in the criminal trial, you would not be ethically required to continue to represent the client on appeal, except that you would be required to file and perfect the appeal and cooperate with the new counsel when appointed. Second, the Committee was of the opinion that you are not required to assist your client in civil matters, whether against you or other parties, because you are only appointed to represent the client in the criminal case, and there is clearly a conflict if the client wished you to assist him in taking actions against yourself. Third, the Committee was of the opinion that you are not required to assist the client with matters outside of the area of your appointment, and that you should ask the Court to define the requirements and limitations of your appointment. Regarding the question of whether you are required to comply with your client's request to provide him with the itemized time sheets you have prepared which the county does not want released to the client, the Committee was of the opinion that the defendant is your client, and therefore is entitled to the files and records including the time sheets. Regarding the question of what you can reveal to the Court in support of your motion to withdraw, the Committee was of the opinion you could not disclose information that is secret or which would be damaging to your client except as it directly relates to the need to defend yourself against allegations made by the client. Finally, the Committee determined it could not give you an opinion on the question of whether the documents signed between you and the client have the effect of a contract because that is a legal question which is outside of the Committee's jurisdiction.

1395 1991 RPC 3.2 Duty to expedite criminal case against client's wishes

[The inquiring lawyer represented a defendant in a criminal case, who was found guilty at a stipulated trial. The defendant was allowed to remain free pending entry of judgment and an appeal. A month after the lawyer returned proposed findings, conclusions, judgment and sentence to the prosecutor, the lawyer wrote to the prosecutor asking if the documents had been entered. Eighteen months later, the court still had not signed any of the documents.] The Committee reviewed your inquiry concerning your duty to move a criminal case forward by advising the court or prosecuting attorney that, even after a long delay, written findings, conclusions, judgment and sentence had not been entered. The Committee understood that your client, who is aware of the situation, does not want you to contact the prosecutor or clerk regarding this. Based upon all of the facts presented, the

Committee was of the opinion that you had made reasonable efforts to expedite the litigation consistent with RPC 3.2 and that no provision of the rules obligates you to do more.

Lawyers, Trial, & Money:

2148 2007 RPCs 1.2(a), 1.5, & 1.8(e)(1)

A client`s obligation to pay all or part of advanced costs being conditioned on client`s acceptence of attorney`s advice with respect to settlement of the claim

May a lawyer properly include a provision in a written contingent fee agreement requiring a client to pay costs advanced towards litigation if the client rejects a settlement offer that appears to counsel to be fair and reasonable under the circumstances? ANSWER No. An imposition of adverse financial consequences impermissibly restricts a client’s freedom to accept or reject a settlement offer pursuant to RPC 1.2(a). INQUIRY “We represent clients in medical negligence cases where the costs and risks of going to trial are often quite high. If the defendant makes what we believe to be a reasonable offer prior to trial, given the risks, costs and likely recovery at trial, and if the client refuses to accept our advice to accept that offer and instead insists on going to trial, we would like to be able to say that while we will continue to advance the costs to do so, if we lose, the client would have to be responsible for at least the additional costs if not all the costs which we have advanced in this case. I am assuming that the amount of the offer which is refused would have been sufficient to repay all the costs which had been advanced in the case. …. What I would like to know is whether it is ethical for the fee agreement to provide that the contingent nature of the client’s obligation to repay all of part of the advanced costs is further conditioned upon the client’s acceptance of the attorney’s advice with respect to settlement of the claim.” APPLICABLE RULES Rules 1.2(a) (Scope of Representation) Rule 1.5 (Fees) Rule 1.8(e)(1) (Conflict of Interest: Current Clients: Specific Rules) DISCUSSION

Revised Rule 1.8(e)(1) which became effective on September 1, 2006 dispensed with the prohibition of repayment of costs advanced towards litigation contingent upon the outcome of a matter. Advancement of costs associated with litigation such as court costs, medical examinations and investigation are “virtually indistinguishable” from contingency fees and helps improve access to the courts. See Rule 1.8, Comment 10. Rule 1.2(a) states that, “A lawyer shall abide by a client’s decision whether to settle a matter.” A client has an unfettered right to be free from economic coercion in accepting or rejecting a settlement offer. See Washington State Bar Association, Committee on Rules of Professional Conduct, Formal Opinion 191 (1994) (Rule 1.2(a) violated by a contingency fee agreement where a lawyer’s contingent fee is based upon the larger of the recovery obtained at trial/arbitration or the amount offered in settlement). See also Philadelphia Bar Association, Professional Guidance Opinion No. 88-16 (July 25, 1988) (disapproving contingent fee agreement in which costs of litigation would be contingent on recovery, but requiring client to pay costs “where the client has rejected an offer of settlement which appears to counsel to be ‘fair and reasonable under the circumstances.’”). A client’s net recovery under the contemplated provision may be reduced by some or all costs a lawyer advanced towards litigation if he or she disagrees with a lawyer’s advice with respect to a settlement offer. A lawyer could wield the repayment of costs as a sword to force settlement, that a client deems inadequate. Furthermore, it would undermine the purpose and intent of improving access to the courts. A lawyer may have a provision in a contingency agreement wherein a client is responsible for reimbursement of reasonable costs advanced towards litigation. See e.g. Hagans, Brown & Gibbs v. First National Bank of Anchorage, 783 P.2d 1164, 1167 (Alaska 1989) (“Should the client fail to exercise control over the litigation in a manner consistent with the reasonable expectations of the parties, the client may become liable to his attorney”). However, that provision cannot be based upon any contingency.

2051 2003 RPC Rules of Procedure

Duty to disclose notice of lien Multiple plaintiffs brought a civil rights action against a city and some of its police officers. The police officers counterclaimed against the plaintiffs for malicious prosecution. One of the plaintiffs obtained money judgment at trial on the claim. The court referred the police officers’ counterclaim to mediation. When it learned of the results of the trial, a state government agency placed a lien on the judgment for the prevailing plaintiff because of an unrelated past due financial obligation. The city did not disclose the existence of that lien during the mediation on the

police officers’ counterclaim. The mediation was completed, and the city paid the settlement amount to the state agency, the lien holder. The prevailing plaintiff complained to the court that knowledge of the lien was something that the city should have disclosed during the mediation. The court expressed concern that the city might have violated RPC 3.3 and/or 4.1. For future reference, lawyers for the city wish to know whether there was a violation. The inquirer has asked about an issue that arose during a case that is now complete. The Rules of Procedure of the RPC Committee prohibit it from issuing opinions involving past conduct.