November 2004
The Law of Lawyering: The One Area of Law with Which We Must All Be Intimately Familiar
by Mark A. Johnson
There is no profession more highly regulated than the practice of law, a fact not surprising when one considers that our profession has, in essence, a monopoly on justice in a democracy. Since equal access to justice is a necessary and fundamental right in “an empire of laws, not men,” those of us whose trade it is to ply justice should rightfully expect a high degree of regulation for the privilege of acting in a representational, fiduciary capacity on behalf of the citizenry of our republic.
The law of lawyering — defined as all regulatory authority (statutes, court rules, and decisional authority) that impacts our profession — is the one area of law that each of us needs to know and know thoroughly.
Although Article IV, Section I, of the Washington State Constitution vests our State Supreme Court with nearly unlimited power to regulate the practice of law, including the “exclusive, inherent power to admit, enroll, discipline, and disbar attorneys,” Short v. Demopolis, 103 Wn.2d 52.62 (1984) (citing Graham v. Washington State Bar Ass’n, 86 Wn.2d 624 (1976)), the Court has acquiesced in the Legislature’s regulation of our profession with respect to the “entrepreneurial aspects” of the practice of law, defined as “how the price of legal services is determined, billed, and collected and the way a law firm obtains, retains, and dismisses clients.” Short v. Demopolis, 103 Wn.2d at 62.
We are required to be members of the Washington State Bar Association1 and pay dues to the organization; there is no “right to work law” — we are not a nonunion shop. In fact, in order to be admitted to the union of justice, each of us must pass a comprehensive examination and provide evidence of our good moral character and fitness.
Once admitted, the regulation includes adherence to the Rules of Professional Conduct (RPCs), a comprehensive code of requirements and prohibitions governing every aspect of our professional and, in some circumstances, extra-professional behavior; approximately $3.3 million of the WSBA’s annual $16 million budget is spent disciplining lawyers and auditing our trust accounts.
The RPCs dictate, inter alia:
• for whom we can work — RPCs 1.7, 1.8 & 1.9 (Conflicts)
• how much we may charge for our work — RPC 1.5 (Fees)
• to whom we can speak about our work — RPCs 1.6, 3.6 (Confidentiality; Trial Publicity)
• what we must do with and how we must account for the money we receive — RPC 1.14 (Preserving Identity of Funds and Property of a Client)
• how quickly we must perform our work — RPCs 1.3, 3.2 (Diligence; Expediting Litigation)
• the “quality” of the work we take — RPC 3.1 (Meritorious Claims and Contentions)
• how we advertise and promote ourselves and our businesses — Title 7 (Communications Concerning a Lawyer’s Services; Advertising; Contact with Prospective Clients; Fields of Practice; Firm Names)
The law of lawyering is interwoven and, to an extent, inconsistent. Negligence may result in sanctions by a trial court, discipline by the WSBA, and a lawsuit by our client. Although we practice in an adversary system of justice that imposes on us the duties of undivided loyalty and zealous representation, we also owe responsibilities to our opponents, the justice system, and, in certain circumstances, nonclients; and, therefore, we may be disciplined, sanctioned, and sued if we do not meet obligations to the courts, our opponents, or third parties to whom we may owe a duty of care. (See RPCs 3.3, 3.4, and Title 4; CR 11; and Trask v. Butler, 123 Wn.2d 835 (1994).)
The law of lawyering is also kinetic. The Special Committee for the Evaluation of the Rules of Professional Conduct (Ethics 2003 Committee) has recently finished its work, and the WSBA Board of Governors has considered and voted on the committee’s product. The proposed revisions to the RPCs are substantial, and the changes will cause significant alterations in practice. In addition, the increased complexity in the subject matters of our representation, expanding client expectations, and extension of our duty of care to nonclients are giving rise to exposure to civil liability that did not exist even a decade ago.
Given the comprehensive, complex, and changing nature of attorney regulation, it is not surprising that the WSBA perceived a need for an annual conference encompassing all the regulations that impact our profession. The Second Annual Conference on the “Law of Lawyering” will be held at the Washington State Convention Center December 16 and 17, 2004. The topics will include malpractice and insurance issues, CR 11, a comprehensive update on the proposed changes to the RPCs, malpractice and discipline case law update, and panel discussions with hypotheticals on malpractice and conflicts of interest.
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Mark Johnson practices in Seattle and is a member of the WSBA Board of Governors.
NOTES
1 The WSBA was created by an act of the Legislature, the State Bar Act (RCW 2.48.010 et. seq.), a law that our Supreme Court has steadfastly declined to hold, in its entirety, to be constitutional. In addition, many of the functions of the bar specified in the State Bar Act have been duplicated (superseded) by the enactment, in 1987, of GR 12.
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