Supreme Court Publishes Proposed Amendments to Rules of Professional Conduct for Public Comment

On December 2, 2004, the Washington State Supreme Court ordered publication of extensive proposed changes to Washington’s Rules of Professional Conduct (RPCs). The proposed rules have been published for public comment in the January 18, 2005, Washington Reports official advance sheets, 153 Wn.2d No. 1.1 The comment period expires April 29, 2005.

These 185 pages of proposed changes were not built in a day. Over two years ago, the WSBA Board of Governors established the Special Committee for the Evaluation of the Rules of Professional Conduct (Ethics 2003 Committee) to review the Washington RPCs in light of the substantial changes made to the American Bar Association Model Rules of Professional Conduct (Model Rules) as a result of the work of the ABA’s Ethics 2000 Commission. Established in 1997, the ABA Ethics 2000 Commission undertook a comprehensive evaluation of the Model Rules and proposed significant changes in 2001. After considering the Ethics 2000 proposals, the ABA House of Delegates approved a substantially revised version of the Model Rules in February 2002. Further amendments — sponsored by the ABA Commission on Multijurisdictional Practice and the ABA Task Force on Corporate Responsibility — were adopted by the House of Delegates in August 2002 and August 2003.

The WSBA Board of Governors requested that the Ethics 2003 Committee review the ABA’s Ethics 2000 revisions, undertake a comprehensive study and evaluation of the current ABA Model Rules as a whole, consider the suitability of adopting the ABA revisions in Washington, consider other appropriate changes to Washington’s RPCs, and submit its recommendations to the Board of Governors.

The Ethics 2003 Committee, chaired by Ellen Conedera Dial, was composed of 16 knowledgeable lawyers from around the state with diverse experience in the practice of law (including lawyers also admitted in Oregon and Idaho), along with a nonlawyer member. Over the course of 13 months, the full committee held 16 public sessions (for up to six hours per meeting) to review the Model Rules and recommend rule revisions. The committee repeatedly and widely publicized its activities and solicited participation by and comments from the profession at large, interested organizations, and the public. Comments were received, either directly at meetings or in written submissions, from the WSBA Family Law Section, the WSBA Litigation Section, the WSBA Business Law Section, the WSBA Rules of Professional Conduct Committee, the Legal Foundation of Washington, the Washington State Trial Lawyers Association, the Washington Defense Trial Lawyers, the Washington Association of Criminal Defense Lawyers, the Washington Defender Association, the WSBA Office of Disciplinary Counsel, the WSBA Lawyer Services Department, and the faculty of the University of Washington School of Law, as well as from a number of individual unaffiliated lawyers, law students, and nonlawyer citizens.

The Ethics 2003 Committee issued a report with its recommendations in March 2004. A copy of the committee’s report, along with a detailed discussion of the various recommended changes, is available on the WSBA website.2

Recognizing the importance of consistency and uniformity in rules regulating lawyer conduct (and joining most every other jurisdiction in the country in conducting such a review, including Idaho and Oregon), the Ethics 2003 Committee recommended adoption of the Model Rules, together with associated commentary, unless there was a compelling and articulable reason for deviation. In general, the content of the suggested rules substantially paralleled the ABA Model Rules in form and substance. In some instances the committee concluded that the Model Rules are silent on a subject that has traditionally and successfully been regulated in Washington, or that an existing Washington RPC is clearly more suited to the regulation of Washington lawyers than its Model Rule counterpart. In such instances, it was suggested that existing RPC provisions be retained or that new Washington-specific provisions be adopted.

The Board of Governors reviewed the Ethics 2003 Committee recommendations at its meetings in April, May, June, and July 2004, during which additional public and member input was received. The great majority of the committee’s recommendations were approved and adopted by the Board of Governors. Instances in which the Board revised the committee’s recommendations are noted in a supplement to the Ethics 2003 Committee report, also available on the WSBA website.

In October 2004, the recommendation as a whole was submitted to the Washington State Supreme Court as suggested amendments under GR 9. In December 2004, the Supreme Court ordered the Ethics 2003 changes to the RPCs published for public comment.

Significant elements of the Ethics 2003 Committee version of Washington’s RPCs are as follows:

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

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

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

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

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

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

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

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

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

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

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

• Clarifications and amendments to the rule governing trust accounts, and addition of a new rule governing trust-account recordkeeping (RPCs 1.15A and 1.15B).

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

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

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

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

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

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

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

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

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

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

All WSBA members are encouraged to scrutinize the proposed rules and submit their views to the Supreme Court during the comment period.

Comments should be submitted to the Clerk of the Supreme Court by either U.S. mail or e-mail. Comments should be received no later than the end of the comment period. Comments may be sent to the following addresses: PO Box 40929, Olympia, WA 98504-0929; or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail may not exceed 1,500 words. ?

NOTES

1 The proposed rules are also available on the Administrative Office of the Courts website: www.courts.wa.gov/court_rules/?fa=court_rules.adopted_display&folderID=2004Dec&fileid=home. A link is also available on the WSBA homepage, www.wsba.org, as well as on the Ethics 2003 Committee web page: www.wsba.org/lawyers/groups/ethics2003/default.htm.

2  www.wsba.org/lawyers/groups/ethics2003/default.htm. The Ethics 2003 Report and Recommendation includes, inter alia, a narrative summary of the work of the committee and most significant recommendations (Part 1); the original “clean” version of the Ethics 2003 Committee’s recommendation (Part 2); the Committee Reporter’s Explanatory Memorandum, a rule-by-rule narrative comparison of the committee’s recommendations with the existing RPC and the Model Rules, and a summary of the reasons for each of the committee’s recommendations (Part 3); copies of the Ethics 2003 subcommittee reports (Appendix D); and the minutes of the Ethics 2003 Committee meetings (Appendices E & F). Also available is a Supplement to the Ethics 2003 Committee Report, showing the revisions made to the committee recommendation following review and approval by the WSBA Board of Governors, together with the Committee Reporter’s Explanation of Changes.

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