79 terms

Professional Responsibility

PR Rules Checklist
Conflict of Interest (COI)
A lawyer must not engage in representation if the representation will be or has a significant risk of being materially limited by her obligations to another client, a former client, a third party, or the lawyer's own interest. She may engage in representation if she reasonably believes she can offer representation that will not be materially limited and has the client's informed written consent.
COI But Representation Permitted
Notwithstanding a concurrent COI, representation is permitted if (1) the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing (following authorization from the other client to make any required disclosure).
Decisionmaking Authority
Clients make all decisions affecting the substance of the case, including settlement. Lawyers are entitled to make tactical decisions. The lawyer has a duty to keep the client informed.
The lawyer must withdraw from representation if a conflict arises, unless the lawyer gets informed consent. If the matter is in litigation, permission of the tribunal must be obtained for withdrawal. In state court, intent to withdraw may be issued with a minimum of 10 days notice. If no objection, withdrawal is automatic. In federal court there must always be a motion and order to withdraw.
Mandatory Withdrawal
Mandatory withdrawal is required when the lawyer is discharged, continued representation will result in RPC violation, or the lawyer's physical or mental condition unreasonably impairs the lawyer's ability to represent the client.
Permissive Withdrawal
Permissive withdrawal is allowed when there is no material adverse effect on the interests of the client; the client persists in criminal or fraudulent conduct involving the lawyer's services; the lawyer's services were used to perpetrate a crime or fraud; the lawyer considers the client's acts repugnant; the client does not pay or fails substantially to fulfill an obligation to the lawyer and warning has been given; the representation is unduly burdensome; or for good cause.
Former Clients
A lawyer may not represent a current client against a former client in the same or a significantly related matter, where the current and former client have a conflict of interest. (Representation is allowed if parties consent, but a lawyer can never use confidential info from one client to that client's disadvantage.)
Business Transactions with Client
Business transactions with a client are generally disallowed unless: (1) transaction is fair and reasonable; (2) there has been full disclosure in writing; (3) the client gives informed written consent; (4) independent counsel is recommended in writing; and (5) there is time to obtain independent counsel.
Information Gained Through Representation
Even with consent, a lawyer can never use confidential info gained through representation of one client to that client's disadvantage, except as permitted by the RPCs.
A lawyer shall not solicit a substantial gift from a client, or prepare an instrument giving the lawyer one, unless the lawyer is related to the donor. WA disapproves of a lawyer drafting an instrument where the lawyer is named a trustee or personal representative where there is a possibility of substantial fees from serving in that position.
Media Rights
No negotiation for literary or media rights is allowed until after the conclusion of representation.
Financial Assistance
A lawyer cannot provide financial assistance to a client, except that the costs of litigation may be advanced if the client remains responsible. Costs include expert witness costs, cost of filing, etc. A lawyer can make a loan to the client as long as the terms are fair and the business transaction rules are followed.
Payment from Third Person
A lawyer may not be compensated by a third person unless the client gives informed consent, the lawyer's independent judgment is not compromised, and information relating to the representation is protected.
Aggregate Settlement and Pleas
A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims or aggregate agreement as to guilt or innocence unless each client gives informed written consent. (To be "informed" each client must know what the other is getting.)
Limiting Civil Liability
A lawyer may not prospectively ask the client to sign a release from malpractice unless the client is independently represented. But after the dispute has arisen, the lawyer may obtain a release from the client to settle a claim. The lawyer must advise the client to seek other counsel in writing.
Proprietary Interest
Clients may not assign a proprietary interest in their case to the lawyer. The lawyer cannot have a financial interest in the outcome of the case except for a valid contingent fee (or an atty's lien).
Sexual Relations with Client
It is unethical for a lawyer to have sexual relations with a client, unless the relationship preexisted the legal representation (also a representative of the client if that would prejudice representation).
Related Lawyers
A lawyer shall not represent a client in a matter directly adverse to a client represented by a related lawyer unless the client gives informed written consent and the representation is not a concurrent COI (personal interest).
Imputed Disqualification for Some COIs
The general rule is that if one lawyer in a firm is disqualified then the entire firm is disqualified for purposes of current and former clients (except for related lawyers and sex with clients).
Terminating with a Firm
The old firm may take cases against the clients of the lawyer who leaves unless someone at the firm still has client confidences and it is the same or a substantially related matter.
Joining a Firm
The new firm cannot represent a client in a case where the newly hired lawyer or her previous law firm are adverse, unless the lawyer gets screened and notice is given to the former clients of the disqualified lawyer. Screening means that the lawyer has no involvement in the matter, client confidentiality is protected, and the personally disqualified lawyer does not participate in the fee from the matter.
Special Rules for Gov't Personnel
A lawyer cannot represent a client in private practice in matters where the lawyer was personally and substantially involved. The new firm can engage in the matter if the lawyer is screened.
Negotiating for Employment
A lawyer currently serving as a public officer or employee shall not negotiate for private employment in a matter in which the lawyer is participating personally and substantially. (Law clerks are excepted if they give notice to their judicial officer.)
Judge or Third-Party Neutral
A lawyer shall not represent anyone in a matter in which the lawyer participated personally and substantially as a judge, other adjudicative officer, arbitrator, or mediator unless ALL PARTIES to the proceeding give informed written consent. The firm may take the case if that disqualified lawyer is screened and written notice is provided. A person selected as a partisan arbitrator is not prohibited from subsequently representing the party.
Prospective Clients
Even when no client-lawyer relationship exists, a lawyer shall not use or reveal information learned during the consultation. Even without the relationship, an attorney shall not represent a client with interests that are materially adverse to those of a prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could significantly harm that person in the matter. Prospective client interviews can be conditioned without confidentiality under the RPCs.
Organization as Client
Lawyers represent the entity as a whole. If a lawyer perceives illegal conduct in a corporation, she must go up the chain of command up to the board of directors and try to bring the conduct to the attention of the proper authorities within the organization. If unsuccessful, the lawyer has DISCRETION to report to an outside agency.
A lawyer shall not reveal information relating to the representation unless the client gives: (1) informed consent; (2) the disclosure is implicitly authorized (where authority is implied through necessity to carry out the representation); or (3) the disclosure is permitted by the RPCs.
Time Limits
The duty of nondisclosure covers the period prior to and subsequent to the creation of the client-lawyer relationship.
Use by Other Persons
A lawyer is allowed to share client information with employees and other members of the firm, unless the client gives instructions to the contrary. A lawyer may give limited, necessary information to an outside agency for such purposes as bookkeeping if reasonable steps are taken to ensure information is kept confidential.
Physical Evidence
Although knowledge of physical evidence is protected by the duty of confidentiality, possession of physical evidence is not. Evidence of a crime must be turned over to authorities in the condition in which it was received, but the lawyer must protect the client's identity and other confidential information.
Client Perjury
A lawyer must be candid with the tribunal and shall not offer evidence the lawyer knows is false. If a lawyer learns that evidence already presented is false, the lawyer shall reveal that fact to the tribunal unless it is prohibited by the RPCs. If prohibited, the lawyer shall take reasonable steps to obtain client consent to the disclosure. If the client refuses, the lawyer may withdraw.
Supervisory and Subordinate Duties and Liability
Partners and supervising lawyers shall make reasonable efforts to ensure that the firm and all lawyers in the firm conform to the RPCs. A lawyer is imputed with subordinate lawyers' violations of the RPC if they order it or ratify the conduct with specific knowledge OR if the supervisory lawyer knows of the conduct when its consequence can be avoided or mitigated, but fails to take reasonable remedial action. A lawyer must always abide by the RPCs. Where a lawyer is asked to do something by a supervisor, the lawyer does not violate the RPCs if acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty (otherwise, "doing as ordered" is not a defense).
Death or Substantial Bodily Injury
A lawyer SHALL (mandatory) reveal information relating to the representation to prevent certain death or substantial bodily harm.
Future Crime
A lawyer MAY reveal information relating to the representation to prevent the client from committing a crime.
Preventing, Mitigating, and Rectifying Crime or Fraud when the Lawyer's Services Were Used
A lawyer MAY reveal information relating to the representation to prevent, mitigate, or rectify substantial injury to the financial or property interest of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud where the client has used the lawyer's services.
Legal Advice
A lawyer may reveal information relating to the representation to secure legal advice about the lawyer's compliance with the RPCs.
Protect the Lawyer
A lawyer may reveal information relating to the representation to establish a claim or defense in a controversy between the lawyer and the client, to defend against a civil or criminal claim against the lawyer based on conduct in which the client was involved, or to respond to proceedings concerning the representation.
Court Order
A lawyer may reveal information relating to the representation to comply with a court order.
Court Fiduciary
A lawyer may reveal information relating to the representation to inform a tribunal about any client's breach of fiduciary responsibility when the client is serving as a court-appointed fiduciary such as a guardian, personal representative, or receiver.
False or Misleading Statements
A lawyer shall not make any communication about his services that is false or misleading. This includes statements about quality, even if objectively true. No statements about ability to improperly influence a court or public body are allowed.
Specialization and Fields of Practice
Statements about specialization are false/misleading except for patent, trademark, and admiralty. But a lawyer can say "Practice is limited to" or "emphasizes in." If certified by an organization, the certification can be disclosed but the fact that the WA Supreme Court does not recognize specialties must also be included.
Firm Names and Designations
Letterhead must designate in what jurisdictions lawyers are admitted. Trade names are allowed as long as they are not misleading. Names of deceased or retired partners are allowed. Names of public officials no longer practicing with the firm are not allowed.
Direct Mail Solicitation
Direct mailing (even targeted mailing) is allowed.
Personal Solicitation
In-person solicitation, including telephone and real-time electronic communication, is prohibited unless there is a preexisting relationship between lawyer and (prospective) client.
Purchase of a Law Practice
Purchase of a law practice is allowed, but the whole practice or area of practice must be sold; the seller must give clients notice of the proposed sale, which includes a statement that clients have a right to obtain other counsel or the client will automatically be transferred after 90 days; and the fee to the client must not be increased because of sale.
Meritorious and Frivolous Claims
A lawyer has a duty to do everything within the bounds of the law, including the RPCs, to advance the cause. This includes expediting litigation. Being a zealous advocate does not include bringing frivolous claims, which are those claims brought solely to harass or injure.
Candor to the Tribunal and Adverse Legal Authority
A lawyer must be truthful with the tribunal and cannot knowingly make a false statement of law or fact, or fail to correct such unless prohibited by the RPCs. A lawyer must reveal controlling authority but has no duty to reveal adverse authority from other jurisdictions OR factual information not requested through discovery (unless ex parte where lawyer must present all material information).
Special Responsibilities of Prosecutors
A prosecutor must not prosecute unless there is probable cause; must advise a defendant of his right to seek counsel; must disclose any information that tends to mitigate a finding of guilt; and must avoid making extrajudicial statements that could prejudice the proceedings.
Impermissible Conduct in Litigation
No evidence obstruction; falsifying evidence; frivolous discovery requests; personal opinions; ex parte contact; and fact witnesses can only be paid reasonable expenses.
Lawyer as Witness
A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. Another lawyer from the same firm may act as an advocate unless it would constitute an impermissible conflict with a current or former client.
Trial Publicity
A lawyer must not make an improper (likely to substantially prejudice a proceeding) extrajudicial statement to the media. A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from undue prejudice.
Nonadjudicative Proceedings
A lawyer representing a client before a legislative body or administrative agency proceeding must disclose that the appearance is in a representative capacity.
Dealing with Third Persons
A lawyer shall not knowingly make a false statement of material fact or law to a third person.
Encouragement of Pro Bono Work
A lawyer is encouraged to accept pro bono cases and assist in providing acces to justice. 30 hours of service should be provided annually.
A lawyer shall not take a matter that he is not competent to handle. A lawyer may accept a representation if the lawyer can become competent without undue delay and expense to the client.
Associating with Counsel
A lawyer may associate with a competent lawyer if the client gives informed consent and the total fee is reasonable.
In an emergency, a lawyer may give advice or assistance although the lawyer does not have the required competence. Even then, assistance should be limited to that which is reasonably necessary in the circumstances.
The lawyer has the duty to keep the client informed. The lawyer should explain the matter so the client can make an informed decision.
Client Under a Disability
The lawyer must maintain as reasonably as possible the typical attorney-client relationship. If the lawyer believes the client cannot act in his own interest, the lawyer may seek the appointment of a guardian to act on the client's behalf.
Total Fee Reasonable
A lawyer shall not charge or collect unreasonable fees or expenses. A fee may take into account time, labor, novelty, difficulty, skill, results, experience, reputation, and the fixed or contingent nature of fee.
Splitting Fees
Fee splitting with nonlawyers is disallowed; fee splitting with lawyers outside the firm must be proportional to the work performed, or the lawyers can assume joint responsibility and split it as appropriate getting informed consent from the client and making sure the total fee is reasonable.
Contingent Fees
Must be in writing. Not allowed in criminal or dissolution cases. Must be calculated on the gross or net. Lawyer must provide an accounting when fee is taken. Client always has the right to have a court review the fee. Fees in excess of 40% are probably unreasonable.
A retainer is a fee that a client pays for a lawyer to be available during a specified period of time or for a specified manner. This is the lawyer's property at the time it is given and is deposited in the lawyer's general account (not to be confused with an advanced payment, which must be deposited in trust).
Flat Fees
A flat fee must be in writing signed and agreed to by the client. The agreement must include: scope of services, total amount of fee and terms of payment, fact that the fee is the lawyer's property and will not be deposited in trust, the fee agreement does not alter the client's ability to terminate the relationship, and the client may be entitled to a refund if a portion of the services have not been performed.
Client Property
No commingling of lawyer funds with client/trust funds. Personalty of client received must be identified, a receipt given to the client, placed in a safe place, and returned to the client when requested.
Trust Account Requirements and Interest
Lawyer may withdraw funds from trust as earned, must keep client informed about the funds in his possession, and the account must bear interest for the client or for IOLTA.
Trust Account Record Keeping
Trust account records must be accurate and kept up to date.
Audits and Overdrafts
WSBA conducts spot audits of trust accounts. Trust accounts must be set up to give both the lawyer AND the WSBA overdraft notices.
Attorney Liens
An unpaid lawyer may file a lien on a case judgment pursuant to WA law. If no recovery is made in that case for the client, there is no satisfaction of the lien.
Aiding Unauthorized Practice/Disbarred Lawyers
A lawyer shall not aid a nonlawyer (including disbarred lawyers) in the unauthorized practice of law. Partnerships cannot be formed with nonlawyers.
Multijurisdictional Practice
Lawyer not admitted in WA shall not create an office or other permanent presence in WA. Lawyers admitted in another jurisdiction may practice in WA on a temporary basis associated with an admitted WA lawyer or reasonably related to lawyer's jurisdiction where admitted. (Pro hac vice - special admission to give lawyer permission to appear before the court - usually requires a local counsel sponsor).
General Requirements for Admission
Must be a graduate of an ABA approved law school or be a graduate of the WSBA clerkship program, or through reciprocity on the same basis that the other jurisdiction in which the lawyer is admitted accepts attorneys. Must be of good moral character.
Pay to Play Prohibited
A lawyer or law firm shall not accept a governmental or legal engagement or appointment from a judge if the lawyer or law firm makes a political contribution to or solicits political contributions for the purpose of obtaining the appointment or engagement.
Broad Definition of Misconduct
Whole bunch of stuff. The catch all.
A lawyer cannot commit a discriminatory act that is prohibited by law.
Reporting Professional Misconduct
A lawyer who knows that another lawyer has committed a violation of the RPCs SHOULD (not mandatory) inform the WSBA.
When Disqualification of Judge is Required
A judge must disqualify herself when the judge's impartiality can be reasonably questioned on the basis of personal bias, knowledge of disputed facts, personal or household financial interest, serving as a lawyer or witness in the matter, or the judge or a household member has a financial interest in a party to the proceeding or its outcome.
Impropriety and the Appearance of Impropriety
A judge must avoid impropriety and the appearance of impropriety.
Report Judicial Misconduct
A lawyer SHOULD report judicial misconduct.