2013 Criminal Law Section Member Benefit CLE. WACDL Federal Bar CLE

Transcription

1 2013 Criminal Law Section Member Benefit CLE WACDL Federal Bar CLE December 18, 2013 By Professor John A. Strait Seattle University School of Law th Avenue P. O. Box Seattle, WA c:strait/cle/wacdl Federal Bar Ethics docx Page 1

2 JOHN A. STRAIT, Associate Professor of Law, Seattle University School of Law. Professor Strait is a graduate of Yale Law School. He maintains a private practice as a consulting expert in legal malpractice and professional responsibility. Professor Strait has taught, researched, and written in the field of professional responsibility and legal malpractice since He has appeared as an expert witness in ten states and fifteen counties in the State of Washington. He has been a court-appointed expert in the federal courts of Washington, Alaska, Oregon, and Hawaii. He served as Special District Counsel to the Washington State Bar Association Office of Legal Discipline and ran a clinical course in lawyer discipline screening complaints against lawyers for probable cause for the Washington State Bar Association from Professor Strait also has served on the Rules of Professional Conduct Committee for the State of Washington for much of the last 25 years. He served as a member and Chair of the Seattle Port Authority Ethics Advisory Commission from its inception until c:strait/cle/wsba Criminal Law Section Ethics Seminar doc Page 2

3 Table of Contents Washington State Bar Association Creed of Professionalism... 4 Resources... 5 Primary Legal Ethics Materials for Washington State... 6 Multi-State or Subject-based Legal Ethics Research... 7 The Proposed Rules of Professional Conduct Client Confidentiality and Duty to Disclose False Testimony The Current Rules of Professional Conduct on Client Confidentiality and Duty to Disclose for Criminal Defense Lawyers in Washington WRPC RULE 1.0: TERMINOLOGY WRPC RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER WRPC RULE 1.5: FEES WRPC RULE 1.6: CONFIDENTIALITY OF INFORMATION WRPC RULE 1.7: CONFLICT OF INTEREST; CURRENT CLIENTS WRPC RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES WRPC RULE 1.9: DUTIES TO FORMER CLIENTS WRPC RULE 1.10: Imputation of Conflicts of Interest: General Rule WRPC RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES WRPC RULE 1.13: ORGANIZATION AS CLIENT WRPC RULE 1.15A: SAFEGUARDING PROPERTY WRPC RULE 1.15B: REQUIRED TRUST ACCOUNT RECORDS WRPC RULE 3.1: MERITORIOUS CLAIMS AND CONTENTIONS WRPC RULE 3.2: EXPEDITING LITIGATION WRPC RULE 3.3: CANDOR TOWARD THE TRIBUNAL WRPC RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL WRPC RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL WRPC RULE 3.6: TRIAL PUBLICITY GUIDELINES FOR APPLYING RULE OF PROFESSIONAL CONDUCT WRPC RULE 3.7: LAWYER AS WITNESS WRPC RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR WRPC RPC RULE 4.1: TRUTHFULNESS IN STATEMENTS TO OTHERS WRPC RPC RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL98 WRPC RULE 4.3: DEALING WITH UNREPRESENTED PERSON WRPC RULE 4.4: RESPECT FOR RIGHTS OF THIRD PERSON WRPC RULE 6.1: PRO BONO PUBLICO SERVICE WRPC RULE 6.2: ACCEPTING APPOINTMENTS WRPC RULE 6.3: MEMBERSHIP IN LEGAL SERVICES ORGANIZATION WRPC RULE 6.5: NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICE PROGRAMS WRPC RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT WRPC RULE 8.4: MISCONDUCT HYPOTHETICALS c:strait/cle/wsba Criminal Law Section Ethics Seminar doc Page 3

4 Washington State Bar Association Creed of Professionalism As a proud member of the legal profession practicing in the state of Washington, I endorse the following principles of civil professional conduct, intended to inspire and guide lawyers in the practice of law. - In my dealings with lawyers, parties, witnesses, members of the bench, and court staff, I will be civil and courteous and guided by fundamental tenets of integrity and fairness. - My word is my bond in my dealings with the court, with fellow counsel, and with others. - I will endeavor to resolve differences through cooperation and negotiation, giving due consideration to alternative dispute resolution. - I will honor appointments, commitments and case schedules, and be timely in all my. communications. - I will design the timing, manner of service; and scheduling of hearings only for proper purposes, and never for the objective of oppressing or inconveniencing my opponent. - I will conduct myself professionally during depositions, negotiations, and any other interaction with opposing counsel as if I were in the presence of a judge. - I will be forthright and honest in my dealings with the court, opposing counsel, and others. - I will be respectful of the court, the legal profession, and the litigation process in my attire and in my demeanor. - As an officer of the court, as an advocate and as a lawyer, I will uphold the honor and dignity of the court and of the profession of law. I will strive always to instill and encourage a respectful attitude toward the courts, the litigation process, and the legal profession. This creed is a statement of professional aspiration adopted by the Washington State Bar Association Board of Governors on July 27, 2001, and does not supplant or modify the Washington Rules of Professional Conduct. c:strait/cle/wsba Criminal Law Section Ethics Seminar doc Page 4

5 Resources Resources for Advice WSBA Hotline re Ethics - Christopher Sutton, (206) Written submission of Inquiry for (in)formal opinion from the RPC Committee [Call (206) for information on how to do it] WSBA Web Address: (Ethics, Professional Responsibility) Available Consultants in the Field Professor Thomas Andrews, University of Washington Law School, (206) Professor Robert Aronson, University of Washington Law School, (206) Professor David Boerner, Seattle University School of Law, (206) Kurt G. Bulmer, Esquire, (206) ; kbulmer@attbi.com Leland G. Ripley, toll free at , or ; fax to Professor John Strait, Seattle University School of Law, (206) ; straitj@seattleu.edu Basic Resource Tools THE ABA/BNA MANUAL ON PROFESSIONAL RESPONSIBILITY (BNA Publications) HAZARD & HODES, THE LAW OF LAWYERING (2d. ed. Prentice-Hall) Illustrative Conflict Situations Encountered by Business Practitioners, CONFLICTS OF INTEREST IN BUSINESS TRANSACTIONS: GUIDELINES FOR THE BUSINESS LAWYER (WSBA 1990, updated 1995) Available in full text on-line at WOLFRAM, MODERN LEGAL ETHICS (West Publishing Company) RESTATEMENT OF THE LAW THIRD, THE LAW GOVERNING LAWYERS, 2 Volumes, American Law Institute, (2000) WSBA ETHICS 2003 COMMITTEE (to review proposed WA RPCs) c:strait/cle/wsba Criminal Law Section Ethics Seminar doc Page 5

6 Primary Legal Ethics Materials for Washington State Rules of Professional Conduct Rules for Enforcement of Lawyer Conduct WSBA Formal Opinions (Browseable) WSBA Formal and Informal Opinions (Searchable) Disciplinary Notices Search Page Code of Judicial Conduct Discipline Rules for Judges Commission on Judicial Conduct Rules of Procedure Commission on Judicial Conduct Public Actions Judicial Ethics Opinions Ethics in Public Service Act Legislative Ethics Board (Includes formal, advisory, and complaint opinions) Washington Executive Ethics Board Advisory Opinions c:strait/cle/wacdl Federal Bar Ethics docx Page 6

7 Multi-State or Subject-based Legal Ethics Research ABA Model Rules of Professional Conduct ABA Net The Center for Professional Responsibility American Judicature Society Ethics 2000 The ABA Commission on the Evaluation of the Rules of Professional Conduct / FindLaw Ethics and Professional Responsibility Page Freivogel on Conflicts Hricik.com Links to Ethics Rules and Opinions LLI Legal Information Institute, American Legal Ethics Library (Cornell) Zimmerman s Research Guide to Legal Ethics LLRX.com Research Wire A Web of Legal Ethics: Rules of Professional Conduct Google Teoma c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 7

8 LIST OF OPTIONS TO MINIMIZE OR ALLOW CONFLICTS A. Limited scope of representation (see RPC 1.2) B. Statements of representation and non-representation (see RPCs 1.2, 1.4) C. Confidentiality waivers (see RPC 1.6) D. Conflict waivers (see RPCs 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 2.2) E. Termination of representation letters F. Court authorization (see RPC 3.7) G. Motions in limine to test the right of representation H. Chinese wall/screening not! (mostly) c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 8

9 I. For the Side Resisting Discovery: A. Clearly state limitations of scope 1. What s included? 2. What s excluded? B. Do not make internal decision on what is discoverable or rely solely on consultation with other attorneys. 1. Options a. Disclose b. Seek protective order from the Court: 1) In camera INSPECTIONS 2) Special masters/ex parte 3) Protective orders under CR 26 C. Don t claim to be a paragon of virtue 1. Letters and phone conversations promising good faith, full disclosure, the check is in the mail. 2. Avoid boilerplate recitations: All relevant documents have been produced. 3. Avoid standard general objections to discovery. 4. Make your objections clear and precise. II. For the Requesting Side Seeking Discovery A. Demand a clear statement of scope of discovery. 1. What s included? 2. What s excluded? B. Seek court declaration of the scope of discovery C. Seek early discovery of sources of information 1. Early deposition of organizational sources D. Hold Rule 37 conferences E. Seek court enforcement: 1. Motions to Compel 2. Appointment of a special master 3. Seek in camera review c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 9

10 The Proposed Rules of Professional Conduct Client Confidentiality and Duty to Disclose False Testimony Introduction c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 10 By John A. Strait The Washington Supreme Court is preparing to promulgate the New Washington Rules of Professional Conduct. The proposed rules change the existing WRPCs in many ways. This article addresses only some of the effects on criminal law practitioners involving the duty to disclose client or witness perjury. Later articles will discuss additional aspects of the proposed changes. As currently scheduled, the Court will take up adoption of the Rules in October. The comment period has ended. All changes over what is pending will be entirely in the discretion of the court. To review the full report and all the attachments, go to choose Committees on the left side of the web page; scroll down this page until you see Special Board of Governors Committees, under this heading choose Special Committee for the Evaluation of the Rules of Professional Conduct (Ethics 2003 Committee). Now you will be on the web page that links you to the Rules and you can look at the proposed rules. Hypothetical: Assume you represent a criminal defendant shortly after arrest. At a preliminary appearance or bail motion hearing, you offer a copy of a Court worker s interview sheet which reports that the defendant lives with his mother and that he works for a local company. The interviewer indicates that he has checked both references and confirms the information. The judge orders the defendant released to the custody of his mother and conditioned on his remaining employed with the local company. You do some pretrial work. In the meantime, the defendant decides to retain a nationally known criminal defense lawyer, and does so, replacing you. Several weeks later, you are at an omnibus hearing calendar and see your former client. Your former client casually mentions to you that he is no longer living with his mother and he never worked for the company, but had made a deal with one of the local contacts for the company to lie for him, if asked. What are your obligations under current Washington Rules to reveal the information? Under current WRPC 3.3(a)(1), you can t knowingly make a false statement of... fact. Under current WRPC 3.3(a)(2), you may not fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or a fraudulent act by the client. Under 3.3(a)(4) you cannot offer evidence that the lawyer knows to be false.

11 Under WRPC 3.3(b) all the duties of 3.3(a) continue to the conclusion of the preceding, which normally means final mandate in the case. Under WRPC 3.3(c) if you have offered material evidence innocently and comes to know of its falsity, you must promptly disclose this to the Tribunal unless such disclosure is prohibited by WRPC 1.6. Under current WRPC 3.3(c) you would appear to now know that the evidence that was offered, either by your client or on your client s behalf to the Court which resulted in the release on bail, was false and he is not in current compliance with the conditions of release. If under WRPC 3.3(d), you ve offered material evidence and now know it is false, and the disclosure is prohibited by WRPC 1.6, the lawyer should promptly make reasonable efforts to convince the client to consent to disclosure. If the client won t consent, you must seek to withdraw under WRPC Parsing all of this under the current WRPC 1.6, the information that you now have acquired is not evidence of a future crime and, therefore, is not allowed to be disclosed by WRPC 1.6(b)(1) to prevent the CLIENT from committing a future crime. Assuming for the sake of argument that the Courthouse conversation by the client was considered to be confidential, you are bound by WRPC 1.6 not to reveal the information. Because you no longer represent the client, since he fired you in fact -- whether or not he thinks the conversation is confidential -- you are under no additional duty other than to seek to convince him to reveal the true facts to the Court. If he refuses, you cannot reveal the information because the exception to WRPC 1.6 does not apply. What should you do under the proposed Rule 3.3? The pending for adoption version of these rules significantly changes the lawyer s obligations. Proposed WRPC 3.3(a) provides that a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the Tribunal by the lawyer. Proposed WRPC 3.3(a)(3) bars the lawyer from offering evidence that the lawyer knows to be false. It adds, If a lawyer, the lawyer s client, or a witness called by the lawyer has offered material evidence and the lawyer has come to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the Tribunal. Under new WRPC 3.3(b), a lawyer who represents a client... and knows that a person intends to engage, is engaging, or has engaged in criminal and fraudulent conduct related to the proceeding, shall take reasonable remedial measures including if necessary, withdrawal or disclosure to the Tribunal. c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 11

12 Under the new WRPC 3.3(c) the duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. Under the proposed Rules, once the lawyer learns that the client or any witness offered by the attorney to the Tribunal has testified falsely, the lawyer must take remedial steps regardless of WRPC 1.6 and its applicability. In our fact pattern, the lawyer would have to first advise the client to correct the record and tell the truth, to correct the false statements in the record as to his employment and to his residence. If the client refused, the lawyer would have an obligation to inform the Tribunal. That obligation has not ended because the lawyer no longer represents the client. The lawyer, once having appeared in the matter when the false statement was made, has a continuing duty, even though discharged as counsel, if the lawyer comes to learn of the false information. Since withdrawal is now irrelevant, the only remedy which would be a reasonable remedial measure is disclosure to the Tribunal. The Purpose Behind the New Rule: The new Rule is intended to bring Washington into compliance with the bulk of the States which require disclosure of false testimony submitted to a court. Washington s existing rule is a variant rule which is unusual nationally. The Ethics 2003 Committee and the Board of Governors intended that the expanded disclosure obligations on attorneys would make us similar to other jurisdictions. Whatever the wisdom of the change, there are several important factors if it is adopted: 1. Your obligation to correct false testimony which you innocently offered continues to the end of the proceeding and the proceeding normally means final mandate. This means that you may have an obligation to correct false testimony of record which continues after the trial is over and while the matter is on appeal until final mandate. 2. Although the Rule offers withdrawal as a possible alternative, it will not normally be a reasonable remedial measure. It will be rare, if at all, that withdrawal as counsel would correct the false testimony in the record. 3. The lawyer must know that the previous testimony is false as distinct from have a reasonable belief. A reasonable believe may entitle a lawyer who is currently representing a client to seek to withdraw without revealing that information to the Court or to the State, but does not require disclosure of client confidences. See, WRPC 1.15 (current) 1.16 (proposed) 4. It becomes particularly important under the proposed rule for a lawyer who believes that a client may be submitting false information either through a witness or directly to the Court to warn, to warn the client about the possible risks that creates in light of the broader disclosure obligation which has been proposed. c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 12

13 The Current Rules of Professional Conduct on Client Confidentiality and Duty to Disclose for Criminal Defense Lawyers in Washington Introduction By John A. Strait The Washington Supreme Court promulgated new Washington Rules of Professional Conduct covering disclosure and confidentiality applicable to criminal defense practice effective September 1, The rules change the previous practice for criminal defense lawyers in substantial aspects. Hypothetical #1: Assume you represent a criminal defendant shortly after arrest. At a preliminary appearance or bail motion hearing, you offer a copy of a Court worker s interview sheet, which reports that the defendant lives with his mother and that he works for a local company. The interviewer indicates that he has checked both references and confirms the information. The judge orders the defendant released to the custody of his mother and conditioned on his remaining employed with the local company. You do some pretrial work. In the meantime, the defendant decides to retain a nationally known criminal defense lawyer, and does so, replacing you. Several weeks later, you are at an omnibus hearing calendar and see your former client. Your former client casually mentions to you that he is no longer living with his mother and he never worked for the company, but had made a deal with one of the local contacts for the company to lie for him, if asked. What are your obligations under current Washington Rules to reveal the information? Under WRPC 3.3(a)(1), you can t knowingly make a false statement of... fact. Under WRPC 3.3(a)(2), you may not fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or a fraudulent act by the client. Under 3.3(a)(4) you cannot offer evidence that the lawyer knows to be false. Under WRPC 3.3(b) all the duties of 3.3(a) continue to the conclusion of the proceeding, which normally means final mandate in the case. Under WRPC 3.3(c) if you have offered material evidence innocently and come to know of its falsity, you must promptly disclose this to the Tribunal unless such disclosure is prohibited by WRPC 1.6. c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 13

14 Under WRPC 3.3(c) you now know that the evidence that was offered, either by your client or on your client s behalf to the Court, which resulted in the release on bail, was false and he is not in current compliance with the conditions of release. If under WRPC 3.3(d), you ve offered material evidence and now know it is false, and the disclosure is prohibited by WRPC 1.6, the lawyer should promptly make reasonable efforts to convince the client to consent to disclosure. If the client won t consent, you must seek to withdraw under WRPC The language of 3.3 requires us ( shall ) to disclose unless prohibited by WRPC 1.6. Turning to WRPC 1.6, we look at the exceptions under 1.6(b). WRPC 1.6(b)(2) would allow us ( may reveal information to prevent the client from committing a crime. ) Because the false statement has already occurred, this is not information necessary to prevent a future crime and therefore cannot be disclosed under WRPC 1.6(b)(2). Assuming for the sake of argument that the courthouse conversation by the client was considered to be confidential by the client, you are bound by WRPC 1.6 not to reveal the information. Because you no longer represent the client, since he fired you in fact -- whether or not he thinks the conversation is confidential -- you are under no additional duty other than to seek to convince him to reveal the true facts to the Court. If he refuses, you cannot reveal the information because the exception to WRPC 1.6 does not apply. Hypothetical #2: You represent a criminal defendant charged with embezzlement who has been found guilty of Theft 1 st Degree. In your sentencing memorandum, you inform the court as you have the prosecuting attorney that the defendant has made full disclosure to the victim and the court of what he misappropriated. The judge sentences the defendant to standard range, low end. At the defendant s direction, you file a notice of appeal and withdraw with new appellate counsel substituted. Three (3) months later, you run into your former client at a Porsche dealership who tells you in confidence that the victim never did find all of what he had taken. What are your obligations under the current Washington Rules of Professional Conduct to reveal the information? Does it change under the current rules? Under this hypothetical, you did not knowingly make a false statement of fact or law to a tribunal under WRPC 3.3(a). You innocently offered material evidence in your sentencing memorandum, which you now know to be false under WRPC 3.3(c). You must promptly disclose this to the tribunal unless it is confidential under WRPC 1.6(b). c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 14

15 WRPC 1.6(b)(2) does not allow you to reveal the information because it is a past criminal act of false representation not a future crime. Under WRPC 1.6(b)(3), however, the new Rule provides that you: may reveal information to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client s commission of a crime or fraud in furtherance of which the client has used the lawyer s services. Assuming that the false statement in your sentencing memorandum if corrected would reveal substantial financial loss to the victim, you may reveal this information under WRPC 1.6(b)(3). Because you may reveal it under WRPC 1.6(b)(3), you must reveal it to mitigate or rectify under WRPC 3.3(c) ( shall ). Does the fact that you no longer represent the client or that the sentencing hearing is long since over change this obligation? Under WRPC 3.3(b) the duties continue to the conclusion of the proceeding, this means final mandate of the case. Since the appeal is still live, final mandate has not taken place and the obligations of 3.3(c) still apply to you. How about the fact that you are no longer the attorney of record and the appellate counsel is now attorney of record? That would not change the answer. The obligation is on the attorney with knowledge. The fact that you are no longer counsel of record would not change your ethical obligations in this regard. You would need to have a conversation with the new attorney of record on the appeal and/or your former client and attempt to convince either or both to reveal the information or correct the false record. If that failed, your obligation would be to disclose to the tribunal. Please note that this strange combination of the new exception WRPC 1.6(b)(3) and the cross reference to 1.6 and 3.3 is the result of the State Supreme Court unilaterally altering the proposed Rules that were submitted and published for comment. In the next issue of the Criminal Law Newsletter, we will discuss the obligations of disclosure have been newly created in WRPC 1.6(b)(1) and how they affect criminal law practice, particularly in domestic violence settings. c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 15

16 WRPC RULE 1.0: TERMINOLOGY (a) (b) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances. "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. (c) "Firm" or "law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. (d) "Fraud" or "fraudulent" denotes conduct that has a purpose to deceive and is fraudulent under the substantive or procedural law of the applicable jurisdiction, except that it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform. (e) "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. (f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. (g) "Partner" denotes a member of a partnership a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. (h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. (i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. (j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 16

17 (k) "Screened" denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyers is obligated to protect under these Rules or other law. (l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance. (m)"tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter. (n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and . A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing. Comment Confirmed in Writing [1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained a client's informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter. See also Washington Comment [11]. Firm [2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 17

18 Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another. [3] [Washington revision] With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates. [4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules. See also Washington Comment [12]. Fraud [5] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform. See also Washington Comment [13]. Informed Consent [6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 18

19 person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent. [7] [Washington revision] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in writing," see paragraphs (n) and (b). Rule 1.8(a) requires that a client's consent be obtained in a writing signed by the client. See also Rule 1.5(c)(1) (requiring that a contingent fee agreement be "in a writing signed by the client"). For a definition of "signed," see paragraph (n). See also Washington Comment [14]. Screened [8] [Washington revision] This definition applies to situations where screening of a personally disqualified lawyer is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12, 1.18, or 6.5. [9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel. c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 19

20 [10] In order to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening. See also Washington Comment [15]. Additional Washington Comments (11-16) Confirmed in Writing [11] Informed consent requires that the writing be articulated in a manner that can be easily understood by the client. Firm [12] Although the definition of "firm" or "law firm" in Rule 1.0(c) differs from the definition set forth in the Terminology section of Washington's former Rules of Professional Conduct, there is no intent to change the scope of the definition or to alter existing Washington law on the application of the Rules of Professional Conduct to lawyers in a government office. Fraud [13] Model Rule 1.0(d) was modified to clarify that the terms "fraud" and "fraudulent" in the Rules of Professional Conduct do not include an element of damage or reliance. Informed Consent [14] In order for the communication to the client to be adequate it must be accomplished in a manner that can be easily understood by the client. Screened [15] See Rules 1.10 and 6.5 for specific screening requirements under the circumstances covered by those Rules. Other [16] For the scope of the phrase "information relating to the representation of a client," which is not defined in Rule 1.0, see Comment [19] to Rule 1.6. [Amended effective September 1, 2006.] c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 20

21 WRPC RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. 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. (b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Comment Allocation of Authority between Client and Lawyer [1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes 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. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation. [2] On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters. c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 21

22 Conversely, lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Because of the varied nature of the matters about which a lawyer and client might disagree and because the actions in question may implicate the interests of a tribunal or other persons, this Rule does not prescribe how such disagreements are to be resolved. Other law, however, may be applicable and should be consulted by the lawyer. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3). [3] At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to Rule 1.4, a lawyer may rely on such an advance authorization. The client may, however, revoke such authority at any time. [4] In a case in which the client appears to be suffering diminished capacity, the lawyer's duty to abide by the client's decisions is to be guided by reference to Rule Independence from Client's Views or Activities [5] Legal representation should not be denied to people who are unable to afford legal services, or whose cause is controversial or the subject of popular disapproval. By the same token, representing a client does not constitute approval of the client's views or activities. Agreements Limiting Scope of Representation [6] The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent. [7] Although this Rule affords the lawyer and client substantial latitude to limit the representation, the limitation must be reasonable under the circumstances. If, for example, a client's objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer's services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. Although an c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 22

23 agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1. [8] All agreements concerning a lawyer's representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., Rules 1.1, 1.8 and 5.6. See also Washington Comment [14]. Criminal, Fraudulent and Prohibited Transactions [9] Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client's conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. [10] When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1. [11] Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary. [12] Paragraph (d) applies whether or not the defrauded party is a party to the transaction. Hence, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Paragraph (d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities. [13] If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 23

24 lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See Rule 1.4(a)(5). Additional Washington Comment (14) Agreements Limiting Scope of Representation [14] An agreement limiting the scope of a representation shall consider the applicability of Rule 4.2 to the representation. (The provisions of this Comment were taken from former Washington RPC 1.2(c).) See also Comment [11] to Rule 4.2 for specific considerations pertaining to contact with an otherwise represented person to whom limited representation is being or has been provided. [Amended effective September 1, 2006.] WRPC RULE 1.5: FEES (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent; and (9) the terms of the fee agreement between the lawyer and the client, including whether the fee agreement or confirming writing demonstrates that the client had received a reasonable and fair disclosure of material elements of the fee agreement and of the lawyer's billing practices. c:strait/cle/wsba Criminal Law Section Ethics Seminar & doc Page 24