November 2003
The Special Committee for the Evaluation of the Rules of Professional Conduct ("Ethics 2003 Committee")
by J. Scott Miller
Guest Columnist
Washington's RPCs Are Under Review
Washington's Rules of Professional Conduct (RPCs) were adopted effective September 1, 1985, and have been only sporadically amended since that time. Like those of 43 other jurisdictions, Washington's rules are based on the American Bar Association (ABA) Model Rules of Professional Conduct, which were adopted in 1983 and have been amended intermittently since that time.
In 1997, the ABA, concerned with nationwide disparity in state regulation of lawyer conduct, appointed a Commission on Evaluation of the Rules of Professional Conduct (the "Ethics 2000 Commission" or "ABA E2K"). After numerous and exhaustive public hearings and vast public and lawyer input, the Ethics 2000 Commission issued a final report in May 2001. In August 2002, the ABA House of Delegates adopted most of the Ethics 2000 Commission's recommended changes, as well as changes recommended by the ABA Commission on Multijurisdictional Practice. Collectively these changes represented a significant revision of the ABA model rules and the official ABA comments to those rules.
In response to the action of the ABA House of Delegates, the WSBA Board of Governors appointed a Special Committee for the Evaluation of the Rules of Professional Conduct ("Ethics 2003 Committee") to review the model rules and make recommendations for changes to Washington's RPCs. The Ethics 2003 Committee began its work in February of this year.
In August 2003, the ABA House of Delegates further amended model rules 1.6 and 1.13. The changes were made at the recommendation of the ABA Task Force on Corporate Responsibility, which was responding to certain aspects of the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley"). Additional details on the background and intent of those changes can be found in the final report of the ABA Task Force at www. abanet.org/buslaw/corporateresponsibility/final_report. pdf.
The purpose of the WSBA Ethics 2003 Committee is to review all the revised ABA model rules; to undertake a comprehensive study and evaluation of the ABA revisions; to consider the suitability of adopting the ABA revisions and official comments in Washington; to consider other appropriate changes to Washington's RPCs; and to submit its recommendations to the WSBA Board of Governors. A comparison of Washington's RPCs with the ABA model rules, and the rules that the Ethics 2003 Committee has already approved for recommendation, can be found on the Ethics 2003 Committee's webpage at www.wsba.org/lawyers/groups/ethics2003. The committee expects to issue a final report in spring 2004.
Washington's RPCs, like all other Washington court rules, are within the sole and exclusive jurisdiction of the Washington State Supreme Court. The Board of Governors will review the Ethics 2003 Committee's final report and will, in turn, forward its own recommendations to the Court. It is anticipated that the board's recommendations for changes will be submitted to the Supreme Court by July 2004.
It was the hope of the ABA Ethics 2000 Commission that, as state supreme courts considered implementation of the revised rules, uniformity would be the "guiding beacon." Recognizing the importance of uniformity in rules regulating lawyer conduct, the WSBA Ethics 2003 Committee expects in general to recommend adoption of the ABA model rules, together with the associated commentary, unless there is a compelling and articulable reason for deviation.
Some states have completed their review of the ABA model rules, but most are still in the process. The ABA maintains a website that identifies the current status of which jurisdictions have adopted some or all of the new rules, at www.abanet.org/cpr/jclr/jclr_home.html.
Overview of the Committee's Work
There are a number of changes in the newest version of the ABA model rules that differ significantly from the current RPCs in Washington state. The primary purpose and intent of the ABA model rules is to develop consistency and uniformity throughout all jurisdictions in the United States. The interplay among the various model rules is intended to be quite complex. Clarifying the complexity is achieved primarily through the comments following each rule.
Historically, Washington has not adopted the ABA comments to the model rules, relying primarily on case law to develop (and sometimes expand on) the concepts articulated in the model rules. The Ethics 2003 Committee has decided to adopt the comments, as appropriate, because it appears to the committee that in order to achieve the goal of uniformity and consistency it would be necessary to adopt the rules without amendment, insofar as possible. Wherever possible, existing case law will be reviewed and considered, and in many cases has already been found to be consistent with the amendments to the model rules.
Although the work of the Ethics 2003 Committee is only partially complete, so far the ABA model rules that have been voted on have been adopted largely without change, and with commentary intact. There are a few significant exceptions to this generalization. However, because the interplay among all the rules is delicate and complex, the Ethics 2003 Committee has agreed that recommendation of the adoption of any rule, amended or not, is temporary, and the committee will go back and look at all the rules as a group after each individual rule has been reviewed in detail.
Finally, it is important to recognize that, in the past, Washington adopted some but not all of the model rules. In so doing, the rules were renumbered. As a result, it has become extraordinarily difficult to cross-reference our rules with the model rules. This in turn made comparing ethics opinions from other jurisdictions very challenging. The Ethics 2003 Committee has determined that it will adopt the numbering of the model rules, and add numbers if necessary in order to include unique Washington rules. Also, if a rule is not adopted substantially in the form proposed by the ABA, it will be given a number that is different from the model rules in order to minimize confusion.
Some Rules of Particular Interest
It would be virtually impossible to even mention, let alone discuss in detail, each model rule that could have an impact upon the practice of law in this state. There are several, though, that merit particular attention.
Rule 1.6: Confidentiality. In its current Washington iteration, RPC 1.6 uses the phrase confidences or secrets to describe the type of information that a lawyer is prohibited from disclosing, absent informed consent from the client, or one of the listed exceptions. Confidences or secrets is a term of art not utilized in any other jurisdiction's ethics rules. Model rule 1.6, as drafted by the ABA, uses the more common phrase information relating to the representation of a client.
We start with the general rule that recognizes that the attorney-client relationship is virtually sacrosanct, that confidential information provided by the client to the attorney is deemed privileged, and that the attorney may not be allowed to disclose it without the knowing consent of the client, unless disclosure is allowed within one of the exceptions listed in RPC 1.6. This rule actually has its genesis in the text of RCW 5.60.060(2):
An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice given thereon in the course of professional employment.
The purpose of the rule, of course, is to encourage free and open attorney-client communication by assuring a client that his communications will be neither directly or indirectly disclosed to others. Heidebrink v. Moriwaki, 104 Wn.2d 392 (1985). The provisions of RPC 1.6 cover both "confidences," referred to in the statute, and "secrets," which is deemed to be information gained in the course of a professional relationship with the client that is requested to be held inviolate or the disclosure of which likely would be embarrassing or detrimental to the client. Seventh Elect Church v. Rogers, 102 Wn.2d 527 (1984).
RCW 5.60.060(2) has been modified by the Supreme Court with certain exceptions identified in Washington RPC 1.6 (which defines when a lawyer is allowed to reveal confidences or secrets). In Washington, one exception is "to prevent the client from committing a crime." In most jurisdictions, this exception allows the attorney to reveal "information relating to the representation of a client . . . to prevent reasonably certain death or substantial bodily harm." This is also the language of the model rules, and the committee has been debating whether to recommend adopting the more commonly accepted language.
While in Washington an attorney is allowed to make disclosures that are otherwise prohibited, in order to prevent a client from committing a crime, this exception is, obviously, far broader than allowing disclosures only if there is "reasonably certain death or substantial bodily harm" threatened, which is the language of model rule 1.6.
The version of model rule 1.6 originally passed by the ABA House of Delegates received significant modifications and amendments at the ABA Annual Meeting in August 2003. The amendments were, primarily, in response to Sarbanes-Oxley. Although Sarbanes-Oxley was really intended to address issues involving corporate boards of directors, its impact has far greater reach.
The 2003 ABA amendments to model rule 1.6 add two more exceptions: disclosure is allowed to prevent crime or fraud reasonably certain to result in injury to financial interest or property of others, and to mitigate or rectify such injury that occurred in the past, provided (in each case) that the wrongdoing was accomplished through use of the attorney's services. These amendments are being debated by the committee as a part of its review of the model rules.
Conflict-of-Interest Rules. The language of the current Washington RPC 1.7 provides that a conflict does not require disqualification if the lawyer reasonably believes his or her representation would not be adversely affected by the conflict, and the client gives knowledgeable consent after full disclosure.
Although the language of model rule 1.7 is completely different from the current Washington rule, the effect is essentially the same. Therefore, the statutory authority, such as that found in Chapter 42.23 RCW, and prior case law would probably still apply if the model rules were adopted.
Similarly, RPC 1.8 ("current clients"), RPC 1.9 ("duties to former clients"), RPC 1.10 ("general rule"), and RPC 1.11 ("former government employee") all use language substantially different from the new ABA model rules. However, the underlying intent of both existing Washington rules and ABA model rules appears to be essentially the same. Therefore, it seems likely that there will be little or no substantive change in the way these rules are applied, even though language may be different. To what extent prior ethics opinions issued by the WSBA would still apply if the model rules were adopted is an open question.
Washington's RPC on screening, however, is more specific than the relevant model rule. At this point, it seems likely that the committee will recommend that Washington's more specific approach be retained.
The Organization as Client Rule. Washington state currently has no ethics rule that even resembles model rule 1.13, "organization as client." The original version of then-model rule 1.13, passed by the ABA House of Delegates last year, was substantially modified (some would say expanded) at the annual meeting in August 2003. The most recent amendments were made in response to Sarbanes-Oxley.
Even though Washington never adopted model rule 1.13, our case law, applicable statutes, and regulations appear to have adopted the core principles of the model rules. The proposed RPC does not attempt to limit application of those statutes or case law.
Please Provide Your Comments
The work of the Ethics 2003 Committee has been ongoing for over six months. In the interest of attempting to provide a uniform set of ethics rules that apply in all jurisdictions, the committee is attempting to adopt the model rules with as few changes as possible. In some instances, we have found that the Washington rules are actually broader than what has been proposed by the ABA. In other instances, the ABA model rules challenge us to expand horizons and make certain adjustments.
The committee welcomes input from members of the WSBA and the public, and from all entities and organizations. Although the committee consists of representatives from extremely varied backgrounds, with many different experiences and perspectives, input from as many special interests within the WSBA, as well as from nonlawyers, will result in adoption of rules that are clear, concise, and robust. Please provide your comments via e-mail to ethics2003committee@wsba.org.
J. Scott Miller is president of Miller Devlin McLean & Weaver PS, and a member of the Ethics 2003 Committee. He can be reached at millers@mdmw-lawyers.com.
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