Seattle University School of Law

Northwest Digital Law Library

Pigott Auditorium

Seattle, Washington

October 25, 2002

Practical Legal Ethics

for Government and Legal Services Lawyers

Current Developments in Ethics and Professionalism

Resource Materials

Assembled by

Barrie Althoff

Professionalism Counsel,

Washington State Bar Association

Contact Information:

P. O. Box 1598

Mercer Island WA 98040-1598

Phone: 206-236-0303

Fax: 206-236-2933

Email: legalethics1@attbi.com

Barrie Althoff, a frequent writer and speaker on legal ethics, discipline and professionalism, has been Professionalism Counsel for the Washington State Bar Association since March 2002. For seven years before that he was WSBA Director of Lawyer Discipline and Chief Disciplinary Counsel. Before joining the WSBA staff in 1994, he spent 14 years in private practice and 7 years with the U.S. Securities & Exchange Commission. He is a member of the New York and Washington bars and holds academic degrees from Fordham, Cambridge and Columbia Universities. Opinions expressed herein are the author’s and are not official or unofficial WSBA positions. Copyright © 2002, Barrie Althoff. These materials were assembled October 4, 2002.

TABLE OF CONTENTS

I. Unbundling Your Law Practice – Opportunities and Dangers

by Barrie Althoff 3

Proposed Rules for Unbundled/Discrete Task Legal Representation 9

II. Overview of [American Bar Association] Ethics 2000 Commission and Report

by Charlotte Stretch 19

III. Washington Supreme Court General Rule 24: Definition of the Practice of Law 23

IV. WSBA Creed of Professionalism 25

V. Replacement of Washington’s Lawyer Disciplinary Procedural Rules 26

VI. Reciprocity and Multijurisdictional Practice 28

VII. American Bar Association Model Rule 5.5 and Official Comment 30

Unbundling Your Law Practice

- Opportunities and Dangers¹

Barrie Althoff ²

Often your client cannot afford, or does not want, to have you handle every aspect of a transaction or piece of litigation, and nearly equally often you cannot afford to do the work for free. Thus, your client and you may want to limit the scope of your representation. You can do this, but make sure you consider your ethical obligations under the RPCs in doing so and be aware of some risks you may encounter.

1. Reasons to Unbundle Your Practice

For some clients you are a counselor or adviser, while for others you are an advocate. Your client may want only limited representation from you in either or both roles. Such a limited representation is generally both permissible and common. Although many legal problems involve complex legal issues and inter-relationships and might not be appropriate for such a limited representation, many other legal matters are essentially routine and amenable to limited representation. You may be able to serve well, for example, a client wanting merely a brief office consultation as to a narrow aspect of a particular matter, or seeking help drafting a particular clause in a document.

Limiting the scope of your representation as an advocate is also possible, although there does not appear to be a specific Washington court rule for generally doing so. For example, you might advise a client acting pro se in court as to litigation procedures or strategy, or draft pleadings for the client which lists the client as pro se (recognizing that such drafting constitutes the practice of law in the jurisdiction such pleadings are being used). Likewise, a pro se client might retain you to argue only one motion in a much larger piece of litigation. Where you are the attorney of record, you and your client might also agree, for example, in order to keep costs down, that you will undertake in a case no discovery, or will waive cross-examination of witnesses or opening or closing arguments - although your obligation to handle client matters competently might limit such a very narrow representation.³

Under RPC 1.2(a), your client determines the scope and objectives of your representation, but only after the client has consulted you and you have explained any proposed limitations in your representation in a manner that your client can appreciate their significance and has consented to the limitations. Absent such a limiting decision, the “default” scope of representation is, in effect, the “full services” approach. Depending on the nature of the representation, those services would generally include, for example, consultation, legal and factual research, drafting documents or pleadings, negotiation, advocacy, court appearances, and so on. Just as you are obligated to advise your client of appropriate alternatives to litigation, however, you are obligated to discuss with your client the scope of your representation and of alternatives to a “full-service” representation.

While some clients may want you to limit the scope of your representation so they can more directly control the work, or because of a do-it-yourself mentality or of a distrust of lawyers, to a large extent the trend towards unbundling of legal services is a response to the simple fact that a large number of clients simply cannot afford “full-service” legal representation and thus must settle for something less, and thus they must largely represent themselves. Since they clearly have a right to represent themselves, your assisting them to do so is not assisting the unauthorized practice of law.

Your limited representation of clients - even on a pro bono basis -- is, of course, still the practice of law by you. Your representation remains fully subject to the RPCs and other ethical standards. The standard ethical provisions of, for example, competence (RPC 1.1), diligence (RPC 1.3), communication with your client (RPC 1.4), reasonable fees (RPC 1.5), confidentiality (RPC 1.6), and avoidance of conflicts of interest (RPC 1.7-12) all remain applicable. Similarly, by limiting your representation you cannot indirectly do, or assist your client to do, anything that you could not do directly in a full-representation. For example, you cannot ghost-write frivolous pleadings for your client to file since RPC 3.1 directly prohibits you from filing frivolous pleadings, nor can you assist your client to make misrepresentations to the court or opposing counsel/clients in violation of RPC 3.4 or RPC 3.5, or destroy evidence in violation of RPC 3.4(a).

2. RPC Requirements of Client Consultation and Client Consent

RPC 1.2(a) requires you to abide by your client’s decisions concerning the objectives of the representation. RPC 1.2(c) permits you to limit the objectives of the representation “if the client consents after consultation.” Thus, the two stated requirements to limit the scope of your representation are: (1) consultation with your client, and (2) your client’s consent after that consultation.

Consultation with your client is required to assure that your client’s decision is an informed decision. The RPCs define “consultation” as “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.” RPC 1.4(b) independently requires you to provide your client with the information needed to make informed decisions by requiring you to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Communication means exchanging information between two persons wherein each person understands the other. Thus, you must be reasonably assured that your client understands the information you are providing.

The type and extent of information needed to satisfy the “consultation” requirement varies with each client and the client’s ability to understand. If your client has not regularly used a lawyer, you should take care that the client truly understands the limits of the representation and consequent risks since he or she may well think of you as his or her lawyer and that you are representing him or her generally. While a client’s subjective belief of the scope of the representation is important, it is only one factor to be considered, and does not control unless it is reasonably formed based on the attending circumstances. Bohn v. Cody, 119 Wn.2d 357, 363 (1992), Leipham v. Adams, 77 Wn. App. 827, 833 (1995).

After your client has consulted you, your client must consent for you to limit the scope of your representation and thus that consent must be an “informed consent.” Although the RPCs do not require the consent to be in writing, as a matter of good practice and self-protection it should be. It could be a part of your written fee agreement, or in a memorandum attached to it, or a letter to your client confirming and describing your mutual decision to limit the scope of your representation. If your client disputes the limitation, the written consent would be merely one part of the relevant evidence, which might also include other documentation, your billing statements, or your course of conduct. For example, if you agree to represent your client in negotiations, but not in litigation, and then after negotiations fail you begin preparing for trial, the client may reasonably believe you have agreed to broaden the representation and be responsible for the trial; if a default judgment were then taken against the client, the client might well argue he or she reasonably expected you were going to handle the litigation despite the written limitation agreement.

If your client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, RPC 1.13 requires you to maintain, as far as reasonably possible, a normal client-lawyer relationship with the client. If you believe your client cannot adequately act in his or her own interest, you may seek appointment of a guardian or take other protective action with respect to the client. Given the central importance of consultation and informed consent in limiting the scope of your representation, however, you should be very careful in ever limiting the scope of your representation for such an impaired client. As a practical matter, unless a guardian has been appointed, you should probably take extra steps to represent the client since the client is unlikely to be able to look after himself or herself as well as a nonimpaired client would, and any limitation on the scope of your representation is likely to be very carefully scrutinized with the clarity of hindsight. Thus, for example, if your client is a young child, you are unlikely to have much true communication - and hence not likely to meet the consultation or informed consent requirements - in discussing a scope of representation issue with the child since the issues are complex and likely beyond the comprehension of most young children. Similarly, if you only speak English and your client does not understand English well, you may need a translator to assist you communicate with your client; if you do not, you may not have satisfied the consultation requirement and thus invalidate any purported limitation by you on your representation.

When You Must Limit Your Representation

The RPCs explicitly require you to limit the scope of your representation in only a few situations. RPC 1.2(d) prohibits you from counseling or assisting a client to engage in conduct that you know is criminal or fraudulent, and RPC 1.2(e) requires you to consult with the client in such a case regarding the RPC’s limitations. If your client asks you to assist in a transaction that you know is tax or insurance fraud, for example, you may not do so. RPC 1.2(a) requires you to abide by your client’s decision of whether to accept a settlement offer, and without your client’s consent you may not accept such an offer on behalf of your client.

4. Other Reasons to Limit Representation

Other ethical considerations under the RPCs, as well as practical considerations, may also make it advisable, or even require you, to limit the extent of your representation of your client. For example, RPC 1.3 requires you to represent your client with “reasonable diligence and promptness;” if your obligations to your existing clients are already very heavy, you may not be able to satisfy this requirement either for your existing clients or your new client unless you agree with your new client to a very limited representation. Similarly, since RPC 1.1 requires you to provide competent representation to your client, you may not be able to do so unless you limit the scope of your representation to the areas of your expertise. If your practice is primarily a personal injury practice, you might not have the competence to handle a family law problem, or, if your practice is primarily a business practice, you might still not have the expertise to handle a proposed public securities offering. Likewise, you may find that the conflict-of-interest provisions of the RPCs may permit you to provide only a very limited representation for a particular client. Under RPC 1.15 you may also need to limit, or even terminate, your representation for various reasons, including where your physical or mental condition materially impairs your ability to represent the client.

Risks of and Reasons Against Limited Representation

Even if you and your client can limit the scope of your representation, you may not want to do so. From a purely economic perspective, the reduced amount of your legal fees may simply not offset the significantly increased risks of liability for you in the transaction. For example, you may be wise to refuse to undertake a limited representation of your client in a securities offering (such as just reviewing an offering document drafted by your client), and insist instead on handling the entire transaction for your client because the liabilities you are incurring in the transaction are far more extensive than, and out of proportion to, the much reduced legal fee. Similarly, you may hesitate to review just one or two clauses in a will or marital separation agreement drafted by your client without insisting on a complete review of the document since the likelihood of inter-related clauses and legal issues is great.

A dissatisfied client is likely to challenge a purported limitation by refusing to pay your bill or by filing a malpractice suit or a disciplinary bar grievance. The client may contend, for example, that he or she never authorized you to undertake certain aspects of the representation for which you billed the client and that your fees are unreasonable for the limited representation the client contends was authorized. If the client is dissatisfied with a litigation result or a settlement, the client may contend you were not authorized to handle it or to handle it the way you did. Or, if something was not done that should have been done, the client will likely argue that you should have done it and that he or she never agreed that you would not be responsible for doing it. In Leipham v. Adams, 77 Wn. App. 827, 894 P.2d 576(1995), for example, a client contended that a lawyer should have filed a disclaimer for federal tax purposes of a joint tenancy interest; the lawyer prevailed, but only after considerable litigation, proving that he and the client had agreed to a limited representation.

6. Undisclosed Ghosts and Scripts, Candor, and Unanswered Questions

When you provide limited representation to a client, but do not disclose that involvement to others, difficult ethical issues arise. In such a case your client appears to a court and to others to be an unrepresented pro se client. If your involvement is not disclosed, are you being fair and candid to the court and to others? Is your unbundling of your legal services by assisting your client through undisclosed services, by which you obviously intend to help your client obtain access to justice at a price your client can afford, in fact conduct that is prejudicial to the administration of justice?

Where one party is represented by counsel and the other is acting pro se, it is generally agreed that the pro se party’s pleadings are to be interpreted liberally, and that the pro se party should be given somewhat greater latitude in court (including, for example, perhaps some leniency by the court in the party’s making and responding to objections, and perhaps in allowing pleadings to be handwritten or on irregular-sized paper). This is proper since the goal of the proceeding is justice. Where a litigant who appears to be acting pro se is in fact represented by counsel, however, that person is clearly not entitled to such liberality or latitude. Thus, if your name never appears on the pleadings and you never make an “appearance,” but you script what your client will say in court or you ghost-write your client’s pleadings, the court and the opposing counsel/client would have no reason to know that they were not dealing with a truly pro se litigant unless your client volunteered the information. There is little doubt that your client will make a better presentation to the court, and that the pleadings you draft for your client will be more competent, than if you had not assisted your client, and thus your client will have been well served by you and will have a more complete access to justice. But has the system of justice itself been well served?

You have an obligation of candor to the court under RPC 3.3 and to opposing counsel/clients under RPC 3.4. Under RPC 8.4(c), you may not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation,” and under RPC 8.4(d) you may not “engage in conduct that is prejudicial to the administration of justice.” Are you obligated under these rules to advise your apparently pro se client to inform the court and opposing counsel/client of your limited role, of your ghost-writing? If your client fails to do so, is that failure a “material fact” which you yourself need to disclose to the court under RPC 3.3(a)(2) so as “to avoid assisting a . . . fraudulent act by the client?” If your client fails to disclose your involvement, must you withdraw from even your limited representation? Is your undisclosed ghost-writing conduct which involves “dishonesty, fraud, deceit or misrepresentation” prohibited under RPC 8.4(c)? Compare, for example, ABA Informal Opinion 1414 (June 6, 1978), Association of the Bar of the City of New York Opinion 87-3 (March 23, 1987), which conclude that “active and substantial assistance” to a client by undisclosed ghost-writing is a misrepresentation to the court and opposing counsel and that you would have to withdraw if the client failed to disclose your involvement, with Arizona Opinion 91-03 (January 15, 1991) which raises but does not answer the question of when a counsel must disclose such involvement to the court and others and it appears through a dissent declined to adopt the ABA and City of New York positions. Los Angeles County Bar Association Opinion 483 (March 1995) approves of a lawyer assisting in or drafting documents which will be signed and filed by the client. It is not clear from the opinion, however, whether the lawyer or client have any obligation to disclose to the court the lawyer’s role as to the documents; later in the opinion, in the context of limited or special court appearances for the client, the opinion states that it would be advisable for the attorney to make clear to the court the scope of the attorney’s representation.

Is such undisclosed ghost-writing “conduct that is prejudicial to the administration of justice” prohibited under RPC 8.4(d)? In Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075 (E.D. VA. 1997), lawyers ghost-wrote pleadings without informing the court; the court found that “the practice of ghost-writing legal documents to be filed with the Court by litigants designated as proceeding pro se is inconsistent with the procedural, ethical and substantive rules of this Court,” 968 F. Supp. at 1080, but that there was insufficient evidence to find that the lawyers had knowingly and intentionally violated the rules, and thus found that disciplinary proceedings and contempt sanctions were not warranted. In doing so, however, the court noted that the lawyers conduct did in fact disrupt the court’s efficient administration of justice.

Is it a violation of your duty as a lawyer under Rule 11 of the Civil Rules (and Rule 11 of the Federal Rules of Civil Procedure) to not sign every pleading? In Johnson v. Fremont County, 868 F. Supp. 1226 (U.S.D.C., Co. 1994), for example, Judge Kane concluded that such undisclosed ghost-writing was a lack of candor and was evasive of FRCP Rule 11's requirement that a lawyer sign pleadings. Similar sentiments were expressed in Laremont-Lopez v. Southeastern Tidewater Opportunity Center, 968 F. Supp. 1075 (E.D. VA. 1997), discussed above. If your client does not disclose your role in ghost-writing pleadings and you yourself then do disclose your role to the court and others, are you violating your duty not to disclose confidences and secrets of your client? Should it instead be the responsibility of the court and opposing client/counsel to ask the apparently pro se client whether he or she is in any way being assisted by counsel, and if so to what extent? Is such a question an invasion of the attorney-client privilege? Should CR 11 be amended, as Judge Kane proposed as to FRCP 11, to require lawyers who are not making an appearance, but who are ghost-writing pleadings, to co-sign pleadings or otherwise disclose their role? Would it make a difference if the client changed the lawyer-drafted document before it was filed? Should lawyers be required to file limited appearances for every case In which they draft any document for a client? for any case as to which they give any advice? would such a rule be workable?

Even outside the context of litigation, your undisclosed role as an attorney may raise ethical issues. For example, your limited representation might consist of discussing with your client what the client might say to the opposing client in negotiations. Of itself, such limited representation is certainly permissible since your client may communicate with anyone, whether that person is represented by counsel or not. (Cf. California Formal Opinion 1993-131, ABA/BNA Lawyer's Manual on Professional Conduct, 1001:1602; WSBA Formal Opinion 84 (1960). If you know that the opposing client is represented by counsel, however, it might well be contended that your “scripting” for your client constitutes an indirect communication with a represented third party in violation of RPC 4.2's prohibition of a lawyer communicating with a person represented by counsel. Cf., WSBA Formal Opinion 26 (1953)(unethical for lawyer to send client to discuss case privately with judge, or to knowingly permit client to do so, without disclosure to opposing counsel).

Because of the many uncertainties regarding your ethical obligations when your client proposed to use your services on an undisclosed basis, you may want to insist to the client that where your role is anything other than merely nominal it be disclosed to the court and to third parties, and that if the client does not do so you are authorized to do so. You may also want to add such a provision to your written agreement with the client.

7. Attempts to Gain Immunity or Limit Liability

While limiting your services likely reduces your fees to your client, it also limits your ability to oversee and solve your client’s legal problem. Nevertheless, your client may still perceive you as having an ongoing responsibility and, if the client does not attain a desirable resolution of the legal problem, the client may try to hold you responsible in a subsequent malpractice action or bar grievance. In short, you may have traded a reduced fee for an increased likelihood of liability. Thus you may be tempted to try in your representation agreement to limit in advance the scope of you liability for malpractice claims, or to seek in advance a grant of immunity from your client for any aspects of the case in which you do not represent the client. RPC 1.8(h) provides that a lawyer “shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement . . . .” While this prohibition is likely intended to apply to services you intend to perform for the client, as opposed to listed services you specifically agree you will not perform, the strictures of the rule may well still apply, and certainly will apply if you actually perform any of the services you initially said you would not perform. Further, if the rule does apply, since your client is usually seeking limited representation because he or she cannot afford to pay for full representation, it is highly improbable that the client will be able to afford being independently represented in any such agreement to limit liability for malpractice. Thus any attempt on your part to prospectively limit your liability will likely be ineffective. It is also questionable whether many lawyers consulted by such a client as to the advisability of signing such a waiver/immunity agreement would recommend the client sign it. The best you can do is to take great care to document very carefully exactly what you and your client agree you will and will not do for your client, and what the risks of such limitation are to your client.

8. Conclusion

The RPCs generally permit you to limit your representation of a client, and in many instances doing so is beneficial to you and to your client. With many clients unable to pay for legal services, unbundling your services is less an option than a necessity. To do so you must carefully discuss with your client the limited scope of your representation in a manner that your client can understand the significance of the limits, making sure that the limits do not make it impossible for you to fulfill your ethical obligations. Then make sure you document those discussions and secure your client’s written consent to the limitations. You should also explain to your client the applicable ethical standards and insist that, if your representation is to be other than minimal, it be disclosed by the client to the court and third parties.

POSTSCRIPT (November 18, 1999)

Since the above articles were written in 1997, the Colorado Supreme Court adopted, on June 17, 1999, amendments to Rule 1.2 (scope of representation), Rule 4.2 (communication with person represented by counsel), and Rule 4.3 (dealing with represented party) of the Colorado Rules of Professional Conduct, and Rule 11 of the Colorado Rules of Civil Procedure, which together specifically permit unbundled legal services. The rules specifically permit a lawyer to limit the scope of the representation with client consent and to provide limited representation to a pro se client pursuant to Civil Rule 11, which in turn requires that pleadings drafted with the assistance of counsel identify the counsel and contain a certification (which is not required where a lawyer assists a pro se client complete pre-printed forms issued by the court). Thus, the new Colorado rules permit unbundled legal services to be performed, but not anonymously, and any pleadings drafted by the lawyer are not “ghost-written” since the assisting lawyer’s identity must be specified on the pleadings. The Colorado court also added a comment to its Rule 4.3 to make clear that a pro se party to whom limited drafting representation is provided under Civil Rule 11 is considered to be an unrepresented party for purposes of Rule 4.3 unless the opposing party knows in fact that the pro se is represented by counsel more generally.

In response to those changes, the United States District Court for the District of Colorado renewed its opposition to unbundled legal services and specifically rejected, by Administrative Order 1999-6, dated June 30, 1999, the Colorado Supreme Court’s changes for practice in the Colorado Federal District Court as not being consistent with the District Court’s view of Federal Civil Rule 11 or “with the view of the judges of this court concerning the ethical responsibility of members of the bar of this court.” That court has previously opposed unbundled legal services, and especially “ghost-writing.” See Johnson v. Board of County Commissioners, 868 F. Supp. 1226 (D. Colo. 1994), aff’d on other grounds, 85 F.3d 489 (10^th Cir. 1996).

POSTSCRIPT (June 2002)

Suggested rules to facilitate unbundled legal services were drafted by the Washington Access to Justice Board’s Unbundled Legal Services Subcommittee (comprised of the author as chair, and Commissioners Kimberley Prochnau and Nancy Bradburn-Johnson of the King County Superior Court). The suggested rules were approved for submission to the Washington Supreme Court by the Washington State Bar Association Board of Governors, the Washington Access to Justice Board, the Washington Superior Court Judges Association, and the Washington District Court Judges Association. They were published for comment and are presently pending before the Washington Supreme Court and scheduled for consideration on October 10, 2002.

The text of the suggested rules is set out on the following pages.

Unbundled Legal Services/Discrete Task Representation

Suggested Court Rules

GR 9 Cover Sheet As Submitted to Washington Supreme Court, January 2002,

with Suggested Rule Amendments Approved for Submission to the Court by

the Washington Access to Justice Board, the Washington State Bar Association Board of Governors, the Washington Association of Superior Court Judges, and the Washington Association of District and Municipal Court Judges

(Published in Washington Reports “Yellow Sheets” in April, 2002)

GR 9 COVER SHEET

Suggested Amendments to

Rules of Professional Conduct,

Superior Court Civil Rules, and

Civil Rules for Courts of Limited Jurisdiction

Facilitate Limited Task Representation by Lawyers, Clarify Ethical Issues as to Nonprofit and Court-Annexed Limited Legal Service Programs and Permit Limited Appearances by Lawyers in Superior Court and in Courts of Limited Jurisdiction

(A) Name of Proponents: Washington Access to Justice Board

Washington State Bar Association

Spokespersons: Dale L. Carlisle, President, Washington State Bar Association, 1201 Pacific Avenue – Suite 2200, Tacoma WA 98401-1157 (Email: dcarlisle@gth-law.com; Telephone 253-620-6401).

Christine Crowell, Member, Washington Access to Justice Board, c/o Deno Miliken Dale & Decker & Davenport, 3411 Colby Avenue, Everett WA 98201 (Email: ChristineCrowell@ dmdd.com; Telephone: 425-259-2222).

Barrie Althoff, Chair, Unbundled Legal Services Committee of the Washington Access to Justice Board, 2101 Fourth Avenue – 4^th Floor, Seattle WA 98121-2330 (Email: barriea@wsba.org; Telephone: 206-727-8255).

Kimberley D. Prochnau, Commissioner, King County Superior Court, 516 3rd Ave – Room C-203, Seattle WA 98104-2312 (Email: Kimberley.Prochnau@metrokc.gov; Telephone: 206-296-9343).

Nancy Bradburn-Johnson, Commissioner, King County Superior Court, 516 3rd Ave – Room C-203, Seattle WA 98104-2312 (Email: Nancy.Bradburn-Johnson@metrokc.gov; Telephone: 206-296-9335).

(C) Purpose: The purpose of the suggested rules and amendments is to clarify and facilitate the provision by lawyers of limited task representation/unbundled legal services, to clarify ethical issues for non-profit and court-annexed limited legal service programs, and to permit limited appearances by lawyers in civil matters in Superior Court and in courts of limited jurisdiction.

The American Bar Association Commission on Evaluation of the Rules of Professional Conduct (the “ABA Ethics 2000 Commission”) issued its final report in May 2001. Among changes it recommended to the American Bar Association Model Rules of Professional Conduct (“ABA Model RPCs”), on which Washington’s Rules of Professional Conduct are closely modeled, are to more clearly allow a lawyer to agree with a client to limit the scope of the lawyer’s representation, and to clarify ethical practices for nonprofit and court-annexed limited legal service programs. Limiting the scope of representation is sometimes also called limited task representation, discrete task representation or unbundling of legal services. The principal ABA Model RPCs relevant to these issues are Rule 1.2 and a newly proposed Rule 6.5.

In 1999 the Colorado Supreme Court amended rules 1.2, 4.2 and 4.3 of its Rules of Professional Conduct (which, like Washington’s analogous Rules of Professional Conduct, are closely modeled on the ABA Model RPCs), to expressly permit limited task representation. Rule 1.2 relates to the objectives of a lawyer-client representation. Rule 4.2 relates to a lawyer’s ethical duties when dealing with a person who is represented by counsel, while Rule 4.3 relates to a lawyer’s ethical duties when dealing with a person who is not represented by counsel but is representing himself or herself. The Maine Supreme Court has also recently adopted court rules to expressly allow limited task representation.

Washington currently does not have a specific court rule expressly permitting a lawyer to represent a client on a limited basis and making it clear that the lawyer will not be obligated to continue the representation beyond the agreed scope of representation. The rules here suggested seek to fill these needs.

The following materials set out suggested revisions to Washington’s Rules of Professional Conduct, to the Superior Court Civil Rules, and to the Civil Rules for Courts of Limited Jurisdiction. The changes suggested to the Rules of Professional Conduct are generally based on amendments or concepts proposed by the ABA Ethics 2000 Commission to be made to the ABA Model RPCs or to the official commentary to those model rules.

The rule amendments suggested here were prepared at the request of the Washington Access to Justice Board by the members of its Unbundled Legal Services Committee (comprised of Barrie Althoff, Chair, and King County Superior Court Commissioners Kimberley D. Prochnau and Nancy Bradburn-Johnson). Drafts of the suggested rules were widely circulated from April through December 2001, including being placed on the Internet with the request for comments. The suggested rules here presented incorporate comments received through that process and otherwise, including comments from the Washington Superior Court Judges Association and from the Northwest Justice Project, and informal comments received from the Unbundled Services Subcommittee of the Family Law Section the King County Bar Association. The American Bar Association’s Standing Committee on the Delivery of Legal Services also reviewed and support the suggested rule amendments. Two letters, dated November 21, 2001, from that committee in support of the suggested changes are attached to this Cover Sheet.

The suggested rules were initially approved for submission as rule-change recommendations to the Supreme Court by the Washington Access to Justice Board on October 26, 2001, by the Washington State Bar Association Board of Governors on December 1, 2001, by the Washington District and Municipal Court Judges Association on December 8, 2001, and, with revisions, by the Civil Law Committee of the Washington Superior Court Judges’ Association on December 19, 2001. The revised version of the rules, here submitted, was then approved for submission as rule-change recommendations to the Supreme Court by the Washington Access to Justice Board and the Washington District and Municipal Court Judges Association on January 11, 2002, by the Washington Superior Court Judges Association on January 12, 2002, and by the Washington State Bar Association Board of Governors on January 18, 2002.

I. Suggested Amendment of Rule 1.2 of the Rules of Professional Conduct

Clients and lawyers may want to limit the scope of a lawyer’s representation for many reasons. Often the reason is simply that the client cannot afford to have the lawyer provide a full representation, or the lawyer cannot afford to provide that full representation for free, or the lawyer cannot provide the full representation because of preexisting commitments to other clients. Sometimes a client simply wants to remain in control of the client’s problem and merely wants the lawyer’s limited assistance. In any case, limiting the scope of the representation is often in the best interests of both the client and the lawyer and results in the client receiving legal assistance, albeit limited, where otherwise the client would not receive any legal assistance. If the limited representation is one involving litigation, the opposing party and the court usually also benefit since otherwise each would be dealing with a person acting entirely pro se without the benefit of any legal assistance.

The commentary to the ABA Model RPCs as proposed by the ABA Ethics 2000 Commission explains the appropriateness of permitting limited scope representations. The following explanation of the proponent’s suggested amendment to RPC 1.2 is based on (and much of it is verbatim from) the ABA proposed commentary regarding agreements limiting the scope of representation, but is revised to reflect Washington’s existing rules.

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 either because the client has limited objectives for the representation, or a limited representation is appropriate under the circumstances and does not impair the client’s objectives. 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.

An agreement limiting the scope of a representation should consider the applicability of RPC 4.2 to the representation. Practically, this means the lawyer and client should decide whether the lawyer is, or is not, authorized to communicate on behalf of the client with the lawyer for the opposing party or, as permitted under the RPCs, with the opposing party. If the lawyer is not so authorized, the client should so inform the opposing lawyer and, for purposes of RPC 4.2, the client should be deemed unrepresented as to the matter in question and the lawyer should be deemed to have consented to the opposing lawyer communicating with the client.⁴

Although RPC 1.2, amended as suggested, 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 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 RPC 1.1.

Paragraph (c) of the suggested revised RPC 1.2 does not require that the client's informed consent after consultation to a limited representation be in writing. Where appropriate, such consent may be inferred from the circumstances. It is good practice, however, to document that consent and consultation in, for example, the engagement agreement, or, if the lawyer’s limited representation is being provided for a fee, in the fee agreement.

All agreements concerning a lawyer's representation of a client must accord with the Rules of Professional Conduct and other law. See, e.g., RPCs 1.1, 1.8 and 5.6.

The fee charged for legal services which are limited in scope should be reasonable under the circumstances and should reflect the limited scope of the services.

II. Suggested Amendments of Rules 4.2 and 4.3 of the Rules of Professional Conduct

Where a person is being provided limited representation by a lawyer in accordance with RPC 1.2(c), but is otherwise self-represented, the scope of the lawyer’s representation may be unknown or unclear to other lawyers who may thus be uncertain whether their conduct towards that person is governed by RPC 4.2, which relates to communicating with a person represented by counsel, or by RPC 4.3, which relates to dealing with an unrepresented person. Neither existing RPC 4.2 nor existing RPC 4.3 address the situation of a lawyer providing limited representation to a client. The proposed amendments to RPC 4.2 and 4.3, which are identical in text, address this situation.

Existing RPC 4.2 and RPC 4.3 should be amended to clarify that a self-represented person to whom limited representation is being provided in accordance with RPC 1.2 is considered to be unrepresented for purposes of Rule 4.2 unless the opposing lawyer knows of, or has been provided with, a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation. Such notice would preferably be provided as part of a notice of appearance, if litigation is pending concerning the subject of the representation. Receipt or knowledge of a limited notice of appearance as to pending hearings or discovery imposes a duty on the opposing lawyer to refrain from direct contact with the opposing person during the pendency of such hearings or discovery including the pendency of any time period for presentation of orders related to said hearings. This provision is based on language recently adopted by the Maine Supreme Court, Maine Bar Rule 3.6(f) (effective July 1, 2001).

III. Suggested Addition of New Rule 6.5 of the Rules of Professional Conduct relating to Nonprofit and Court-Annexed Limited Legal Service Programs.

The ABA Ethics 2000 Commission has proposed a rule that would permit lawyers providing short-term legal services under the auspices of nonprofit and court-annexed limited legal service programs to be exempted from certain provisions of the RPCs. The commentary proposed by the ABA Ethics 2000 Commission explains the need to clarify ethical issues arising in connection with nonprofit and court-annexed limited legal service programs. Washington has no equivalent to the rule proposed by the ABA Ethics 2000 Commission, but needs one. Washington also has a highly coordinated and developed system of legal education, advice and referral programs as exemplified by the Northwest Justice Project’s CLEAR system. The following explanation of the proponent’s suggested adoption of new RPC 6.5 is based on the ABA Ethics 2000 commentary but is revised to reflect Washington’s existing rules and programs.

Legal service organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services - such as advice or the completion of legal forms - that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer's representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., RPCs 1.7, 1.9 and 1.10.

A lawyer who provides short-term limited legal services pursuant to this rule must secure the client's consent after consultation to the limited scope of the representation. See RPC 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this rule, the RPCs, including RPCs 1.6 and 1.9(c), are applicable to the limited representation.

Because a lawyer who is representing a client in the circumstances addressed by this suggested rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) of the suggested RPC 6.5 requires compliance with RPCs 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with RPC 1.10 only if the lawyer knows that another lawyer in the lawyer's firm is disqualified in the matter by RPCs 1.7 or 1.9(a).

Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer's firm, paragraph (b) of suggested RPC 6.5 provides that RPC 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with RPC 1.10 when the lawyer knows that the lawyer's firm is disqualified by RPCs 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer's participation in a short-term limited legal services program will not preclude the lawyer's firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program's auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.

If, after commencing a short-term limited representation in accordance with this suggested rule a lawyer undertakes to represent the client in the matter on an ongoing basis, RPCs 1.7, 1.9(a) and 1.10 become thereafter applicable.

Suggested RPC 6.5(a)(1) is modified from the proposed ABA Model RPC 6.5 to exempt the lawyer from RPCs 1.7 and 1.9(a) so as to permit a lawyer under the auspices of a program sponsored by a nonprofit organization or court to provide limited legal services only to determine eligibility of the client for assistance by the program and to make an appropriate referral of the client to another program sponsored by a nonprofit organization or court. The intent of the modification is to permit lawyers working with such programs as the Northwest Justice Project’s Coordinated Legal Education Advice and Referral System (“CLEAR”) to undertake customary intake and referral services even where a conflicting client is also receiving limited legal services from CLEAR. This is consistent with the September 16, 1999 Revised Plan for the Delivery of Civil Legal Services to Low Income People in Washington State. The exemption from RPCs 1.7 and 1.9(a) is limited, however, to only those services needed for the lawyer to determine eligibility of the client for assistance and to make an appropriate referral to another program.

Suggested RPC 6.5(a)(3) has no counterpart in the ABA Ethics 2000 proposed Model RPC 6.5. It addresses a narrow situation in Washington wherein a client seeks limited legal services from a program sponsored by a nonprofit organization or court, such as the CLEAR program, when another lawyer associated with that program is already representing a conflicting party. While such a program may make an effort to locate another program to refer the second person to, practically there is frequently no other available program for referral and such likely unsuccessful referral efforts consume valuable resources better spent representing, with suitable protections, the second person. Under existing conflicts-of-interest RPCs 1.7, 1.9(a) and/or 1.10, the program would not be able to represent the second client and as a practical matter, due to limited available alternative legal service providers, the second person would likely go unrepresented. The proposed modification would permit the program (but not the same lawyer) to also represent the second client, but only under narrow circumstances intended to assure the individual lawyers’ loyalty and maintain the respective clients’ confidences and secrets. Clients of such a program, by accepting legal representation from the program, in effect consent to the technical conflict of interest, but are protected from any real conflict by the protective provisions of suggested RPC 6.5(a)(3). That suggested rule would permit such a representation only where (a) the program lawyers representing the opposing clients are screened by effective means from information as to the opposing client’s confidences, secrets, trial strategy and work product as to the matter at issue, (b) each client is notified of the conflict and the screening mechanism used to prohibit dissemination of confidential or secret information; and (c) the program is able to demonstrate by convincing evidence that no confidences or secrets that are material were transmitted by the personally disqualified lawyers to the lawyer representing the conflicting client before implementation of the screening mechanism and notice to the opposing client.

Suggested Addition of New Rule 4.2 of the Superior Court Civil Rules, and of New Rule 4.2 of the Rules for Courts of Limited Jurisdiction, relating to Limited Representation

The proponents suggest that the Court adopt a new Rule 4.2 of the Superior Court Civil Rules (CR), and a new Rule 4.2 of the Civil Rules for Courts of Limited Jurisdiction (CRLJ), which would clarify that a lawyer’s provision of limited scope legal representation to a client does not of itself constitute an entry of appearance for that client, and clarify that pleadings should still be served on and delivered to the client and not the lawyer. The text of the suggested two rules, one for Superior Court and the other for courts of limited jurisdiction, is identical other than as to references to rules. For ease of reference, it is suggested that both rules be numbered 4.2 although the Civil Rules for Courts of Limited Jurisdiction have no rule 4.1; that rule number should simply be reserved.

The suggested new rules are loosely based on Section 11(b), and on a comment on adoption of Section 1-1, of the Colorado Rules of Civil Procedure. They provide that an attorney may provide limited representation to a pro se party in accordance with the requirements of Colorado’s civil rules and Rules of Professional Conduct, that providing limited representation to a pro se party in accordance with Colorado rules does not constitute an entry of appearance, and that such limited representation does not require or authorize the service of a pleading of paper upon the attorney.

Although the suggested rules partially duplicate the suggested new Rule 70.1 of the Superior Court Civil Rules and the suggested new Rule 70.1 of the Civil Rules for Courts of Limited Jurisdiction, both the suggested new CR 4.2/CRLJ 4.2 and the suggested new CR 70.1/CRLJ 70.1 seem useful to inform the lawyer providing limited scope representation and any opposing lawyers of the procedural consequences of limited scope representation.

Suggested Amendment of Existing Rule 11 of the Superior Court Civil Rules, and Existing Rule 11 of the Civil Rules for Courts of Limited Jurisdiction, by Designating Existing CR 11 as CRLJ 11, respectively, as CR 11(a) and CRLJ 11(a), and by Adding New CR 11(b) and New CRLJ 11(b).

Clients often cannot afford to hire a lawyer to represent them fully throughout the course of litigation yet might be able to afford to hire a lawyer to represent them in discrete parts of the litigation. One of the discrete parts of litigation most amenable to limited task representation is the preparation of pleadings, motions or other documents related to the litigation. Such assistance can benefit both parties to the litigation and the court itself by more precisely defining the legal issues and more clearly stating the facts. A lawyer merely providing such drafting assistance in litigation should be given guidance as to the lawyer’s responsibilities of inquiry as to the grounds for and purposes of the litigation, yet, in recognition of the lawyer’s limited role, should be allowed to rely on the client’s representations. To protect against persons seeking to abuse the system, however, where a lawyer has reason to believe the client’s representations are false, the lawyer should be obligated to make independent inquiry. Even in such a case, however, the other party and the court would benefit from the likely more professionally drafted documents. The suggested amendments of CR 11 and CRLJ 11 provide the guidance needed by a lawyer providing such drafting assistance. The suggested amendments of CR 11 and of CRLJ 11 are identical in text other than rule cites in the suggested CR 11 amendments refer to the CRs whereas the rule cites in the suggested CRLJ 11 amendments refer to the CRLJs.

The proponents suggest the Court amend existing Rule 11 of the Superior Court Civil Rules, and existing Rule 11 of the Civil Rules for Courts of Limited Jurisdiction, first by inserting in their respective titles “and drafting” to reflect the revised rules provisions also apply to drafting assistance, and, second, by designating the existing CR 11 and CRLJ 11, respectively, as CR 11(a) and CRLJ 11(a), without change of text, and by adding new section (b) to each of the rules. The suggested sections (b) are based on Section 11(b) of Colorado’s Rules of Civil Procedure, but are modified to reflect differences in Washington’s existing CR 11 and CRLJ 11.

The drafting by a lawyer on a limited representation basis of pleadings, motions or documents which are not signed by the lawyer and on which the lawyer’s name as drafter does not appear is sometimes referred to as ghost-writing. In preparing this suggested rule change, extensive consideration was given whether a lawyer should be required to sign the pleadings, motions or documents, or whether the client should be required to disclose assistance (whether from a lawyer or a non-lawyer) on the face of the pleading, motion or document by requiring, for example, a signed certification by the person receiving limited representation as to any assistance the person received in drafting pleadings, motions or other documents. One form of certification considered was loosely based on Oregon’s Uniform Trial Court Rule 2.101(7). On reconsideration, however, it was concluded that such certifications as to assistance received by others should not be required through this suggested rule since the benefits of having a pleading, motion or document prepared by a lawyer outweigh the need to know on the face of the document whether lawyer assistance was provided. Practical reasons also negate the need since a lawyer likely has no control over the pleading, motion or document once it is given to the client and nothing prevents a client from thereafter modifying the language of the pleading, motion or document. Further, the perceived need for such a certification varies on whether the pleading, motion or document was a mandatory form or not, on whether the assistance was provided by a lawyer or a nonlawyer, and on the extent of any assistance rendered, thus making any certification unduly complex. Rather, it was concluded that the suggested CR 11(b) and CRLJ 11(b) adequately put the lawyer on notice of the lawyer’s responsibilities and that information on drafting assistance could still be acquired, if deemed relevant, by, for example, the court simply directly inquiring of the otherwise self-represented person whether any assistance was obtained in drafting the pleadings, motions or other documents.

VI. Suggested Amendment of Superior Court Civil Rules by Addition of New Rule 70.1 to the Superior Court Civil Rules, and New Rule 70.1 to the Civil Rules for Courts of Limited Jurisdiction, relating to Appearances.

Existing civil rules do not clearly state that a lawyer representing a client may appear for that party by serving a notice of appearance, nor do they specifically permit a lawyer undertaking limited task representation to make a limited appearance in litigation. Rules are needed to so provide. The proponents suggest the Court amend the existing Superior Court Civil Rules by adopting the suggested new CR 70.1, and amend the existing Civil Rules for Courts of Limited Jurisdiction by adopting the suggested new CRLJ 70.1, so as to specifically permit filing a notice of appearance and to authorize a lawyer to make a limited appearance in litigation. The text of the suggested new CR 70.1 and CRLJ 70.1 are identical.

Under existing rules, lawyers are concerned that they may agree with a client to undertake only a limited representation, yet the court under the existing rules may not permit the lawyer to withdraw when the agreed limited representation has been completed. Without some assurance that they will be able to limit their representation to that agreed upon with the client, lawyers are reluctant to undertake limited representations in litigation. Similarly, judges may be reluctant to permit a lawyer to withdraw where they did not know previously that the lawyer’s representation was intended to be only very limited.

The suggested rules would permit a lawyer who has filed a notice of limited appearance for a proceeding to withdraw upon the conclusion of that proceeding by filing a notice of completion of limited appearance. The withdrawal in such a case is without necessity of leave of court. In order to facilitate communication by the opposing party and counsel, and the court, with the withdrawing lawyer’s now former client, the withdrawing lawyer’s notice of completion of limited appearance must contain the client information required by rule 71(c)(1), which generally includes the name and last known address of the former client.

Some years ago Seattle lawyer Monte Gray informally proposed a rule, on which the current suggested rule is partially based, and explained the need for the rule:

“This provision is intended to permit a party to engage counsel only in connection with a particular motion or a particular deposition or the like. Fairness requires that a limited appearance be specifically called to the attention of the opposing party, either on the record in open court or through a separate document clearly stating the matters to which the appearance is limited. The scope of the appearance should be strictly construed so that, for instance, an appearance to defend a deposition does not authorize the attorney to accept service of a motion arising out of the deposition; an appearance for purposes of a motion does not authorize acceptance of service of a motion for reconsideration; etc. Of course, nothing in this rule prevents the attorney from making a separate limited appearance for purposes of related matters of this type if so authorized and directed by the client. Nor does the termination of the appearance deprive the court of power to impose sanctions on the attorney where appropriate; a motion seeking such sanctions must be served on the attorney against whom they [are] directed, but not in his capacity as attorney for the client.”

Those expressed needs remain and the suggested CR 70.1 and CRLJ 70.1 are intended to meet them.

Hearing: The suggested rule changes were distributed and circulated widely in draft form, including being placed on the Internet. Accordingly, a hearing is not believed to be needed.
Expedited Consideration: Because of the importance of facilitating access to the justice system, the proponents request expedited consideration of these suggested rule amendments.

Attachments:

Suggested RPC 1.2

Suggested RPC 4.2

Suggested RPC 4.3

Suggested RPC 6.5

Suggested CR 4.2

Suggested CRLJ 4.2

Suggested CR 11

Suggested CRLJ 11

Suggested CR 70.1

Suggested CRLJ 70.1

Two letters dated November 21, 2001 from the American Bar Association Standing Committee on Delivery of Legal Services

SUGGESTED AMENDMENT - RPC 1.2 – SCOPE OF REPRESENTATION

No change.
No change.
A lawyer may limit the ~~objectives~~ scope of the representation if the limitation is reasonable under the circumstances and the client consents after consultation. An agreement limiting the scope of a representation shall consider the applicability of rule 4.2 to the representation.
No change.

(e) No change.

SUGGESTED AMENDMENT RPC 4.2 – COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL

(a) In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

(b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with rule 1.2 is considered to be unrepresented for purposes of this rule unless the opposing lawyer knows of, or has been provided with, a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation.

SUGGESTED AMENDMENT - RPC 4.3 – DEALING WITH UNREPRESENTED PERSON

(a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

SUGGESTED NEW RULE -- RPC 6.5 – NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICE PROGRAMS

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest except that those rules shall not prohibit a lawyer from providing limited legal services sufficient only to determine eligibility of the client for assistance by the program and to make an appropriate referral of the client to another program; and

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter; and,

(3) notwithstanding paragraphs (1) and (2), is not subject to Rules 1.7, 1.9(a) or 1.10 in providing limited legal services to a client if (a) the program lawyers representing the opposing clients are screened by effective means from information as to the opposing client’s confidences, secrets, trial strategy and work product as to the matter at issue, (b) each client is notified of the conflict and the screening mechanism used to prohibit dissemination of confidential or secret information; and (c) the program is able to demonstrate by convincing evidence that no confidences or secrets that are material were transmitted by the personally disqualified lawyers to the lawyer representing the conflicting client before implementation of the screening mechanism and notice to the opposing client.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.

SUGGESTED NEW RULE -- CR 4.2 – PROCESS – LIMITED REPRESENTATION

An attorney may undertake to provide limited representation in accordance with RPC 1.2 to a person involved in a court proceeding.
Providing limited representation of a person under these rules shall not constitute an entry of appearance by the attorney for purposes of CR 5(b) and does not authorize or require the service or delivery of pleadings, papers or other documents upon the attorney under CR 5(b). Representation of the person by the attorney at any proceeding before a judge, magistrate, or other judicial officer on behalf of the person constitutes an entry of appearance pursuant to RCW 4.28.210 and CR 4(a)(3), except to the extent that a limited notice of appearance as provided for under CR 70.1 is filed and served prior to or simultaneous with the actual appearance. The attorney’s violation of this Rule may subject the attorney to the sanctions provided in CR 11(a).

SUGGESTED NEW RULE -- CRLJ 4.2 – PROCESS – LIMITED REPRESENTATION

(a) An attorney may undertake to provide limited representation in accordance with RPC 1.2 to a person involved in a court proceeding.

(b) Providing limited representation of a person under these rules shall not constitute an entry of appearance by the attorney for purposes of CR 5(b) and does not authorize or require the service or delivery of pleadings, papers or other documents upon the attorney under CRLJ 5(b). Representation of the person by the attorney at any proceeding before a judge, magistrate, or other judicial officer on behalf of the person constitutes an entry of appearance pursuant to RCW 4.28.210 and CRLJ 4(a)(3), except to the extent that a limited notice of appearance as provided for under CRLJ 70.1 is filed and served prior to or simultaneous with the actual appearance. The attorney’s violation of this Rule may subject the attorney to the sanctions provided in CRLJ 11(a).

SUGGESTED AMENDMENT -- CR 11 – SIGNING AND DRAFTING OF PLEADINGS, MOTIONS, AND LEGAL MEMORANDA; SANCTIONS

(a) Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed by at least one attorney of record in the attorney's individual name, whose address and Washington State Bar Association membership number shall be stated. A party who is not represented by an attorney shall sign and date the party's pleading, motion, or legal memorandum and state the party's address. Petitions for dissolution of marriage, separation, declarations concerning the validity of a marriage, custody, and modification of decrees issued as a result of any of the foregoing petitions shall be verified. Other pleadings need not, but may be, verified or accompanied by affidavit. The signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum; that to the best of the party's or attorney's knowledge, information, and belief, formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or legal memorandum is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney fee.

(b) In helping to draft a pleading, motion or document filed by the otherwise self-represented person, the attorney certifies that the attorney has read the pleading, motion, or paper, that to the best of the attorney's knowledge, information, and belief, formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. The attorney in providing such drafting assistance may rely on the otherwise self-represented person’s representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.

SUGGESTED AMENDMENT -- CRLJ 11 – SIGNING AND DRAFTING OF PLEADINGS, MOTIONS, AND LEGAL MEMORANDA; SANCTIONS

(a) Every pleading, motion, and legal memorandum of a party represented by an attorney shall be dated and signed by at least one attorney of record in the attorney's individual name, whose address and Washington State Bar Association membership number shall be stated. A party who is not represented by an attorney shall sign and date the party's pleading, motion, or legal memorandum and state the party's address. Pleadings need not, but may be, verified or accompanied by affidavit. The signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum; that to the best of the party's or attorney's knowledge, information, and belief, formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or legal memorandum is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or legal memorandum is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or legal memorandum, including a reasonable attorney fee.

SUGGESTED NEW RULE -- CR 70.1 – APPEARANCE BY ATTORNEY

(a) Notice of Appearance. An attorney admitted to practice in this state may appear for a party by serving a notice of appearance.

(b) Notice of Limited Appearance. If specifically so stated in a notice of limited appearance filed and served prior to or simultaneous with the proceeding, an attorney’s role may be limited to one or more individual proceedings in the action. Service on an attorney who has made a limited appearance for a party shall be valid (to the extent permitted by statute and rule 5(b)) only in connection with the specific proceedings for which the attorney has appeared, including any hearing or trial at which the attorney appeared and any subsequent motions for presentation of orders. At the conclusion of such proceedings the attorney’s role terminates without the necessity of leave of court, upon the attorney filing notice of completion of limited appearance which notice shall include the client information required by rule 71(c)(1).

SUGGESTED NEW RULE -- CRLJ 70.1 – APPEARANCE BY ATTORNEY

(a) Notice of Appearance. An attorney admitted to practice in this state may appear for a party by serving a notice of appearance.

[Reprinted with permission of, and copyrighted by, American Bar Association, 2002]

[Note by Barrie Althoff: This article was presented by Ms. Stretch at the American Bar Association Center for Professional Responsibility 28^th National Conference on Professional Responsibility in Vancouver, B.C., in May/June 2002, appearing at Tab 13, pages 415-420, of the program materials. It is reprinted here with the permission of Ms. Stretch and of the American Bar Association.]

OVERVIEW OF [ABA] ETHICS 2000 COMMISSION AND REPORT

Charlotte (Becky) Stretch

CREATION OF THE COMMISSION

Appointment in Mid-1997 of the 13-member commission by then-incumbent ABA President Jerome J. Shestack, his immediate predecessor, N. Lee Cooper, and his successor, Philip S. Anderson, with approval by the Board of Governors.

The Commission was charged with undertaking a comprehensive evaluation of the Model Rules of Professional Conduct.

Members include a state supreme court chief justice, a federal circuit court judge, a state court trial judge, a retired judge who is also a former dean and law professor, two professors of legal ethics, one of whom was the principle drafter of the Model Rules, a lawyer formerly with the Department of Justice, several private practitioners, a former in-house counsel, and a nonlawyer member, who is a former college president and member of numerous corporate boards.

The Commission appointed two Reporters: Chief Reporter Nancy J. Moore, a professor of legal ethics at Boston University and an Adviser to the Restatement of the Law Governing Lawyers; and Carl Pierce, a professor of legal ethics at the University of Tennessee and also reporter to the committee in Tennessee proposing revisions to the Tennessee rules of professional conduct. Professor Tom Morgan, a professor of legal ethics at George Washington University, also served as a Reporter for one year.

REASONS FOR UNDERTAKING THE PROJECT

Growing disparity in state ethics rules – 44 states use the Model Rules format but with some significant variations

Lack of clarity in some existing rules; some dissonance between rules and comments

New issues and questions raised by the influence that technological developments are having on the delivery of legal services

Continuing need to expand access to legal services to low and moderate income persons

Changing organization and structure of modern law practice

The Commission was also mindful of
1. the need to enhance public trust and confidence in the legal profession
2. special concerns of lawyers in nontraditional practice settings
3. increased public scrutiny of lawyers.

COMMISSION’S GOALS

1. Update the Model Rules in light of developments since the Rules were adopted in 1983.

2. Take a position of leadership in proposing rules the Commission thinks make the most sense and have the potential to bring greater uniformity among the states.

WHAT THE COMMISSION DID

The Commission examined and updated the Model Rules of Professional Conduct to assure the Rules continue to work in today’s environment and to provide better guidance to the profession.

The Commission, through its open process, sought, received and acted upon viewpoints from throughout the legal community.
1. 250 member Advisory council – including representative from sections, bar associations, law schools, consumer groups, the judiciary
2. 50 days of meetings
3. 10 public hearings
4. Review of comments on the public discussion drafts
5. Use of the Internet to distribute information about the Commission's work
6. Issued a Report in November 2000 that was posted on the Commission’s Website and included: an Executive Summary; a copy of the proposed Model Rules; a comparison between the proposed Model Rules and the current Model Rules; and a Reporters’ Explanation of Changes
7. Revised the Report after considering comments on the November Report and submitted a Final Report in May 2001 for debate by the House of Delegates in August 2001 (Debate continued in February 2002.)

Examined state variations on the Model Rules, case law, and differences between the Model Rules and the new Restatement of the Law Governing Lawyers

The Commission concluded that fundamentally the Model Rules work
1. Retained the basic architecture of the Rules
2. Maintained core values
3. Did not proposed radical changes or overhaul the Rules
4. Decided not to add best practice or professionalism concepts to the Rules.

CHANGES THE COMMISSION MADE - SUMMARY

1. Clarified and strengthened a lawyer’s duty to communicate with the client

2. Clarified and strengthened a lawyer’s duty to clients in certain specific problem areas

3. Responded to the changing organization and structure of modern law practice

4. Responded to new issues and questions raised by the influence that technological developments are having on the delivery of legal services

5. Clarified existing rules to provide better guidance and explanation to lawyers

6. Clarified and strengthened a lawyer's obligations to the tribunal and to the justice system

7. Responded to the need for changes in the delivery of legal services to low and middle income persons

8. Increased protection of third parties

CHANGES THE COMMISSION MADE – DETAIL

1. Clarified and strengthened a lawyer’s duty to communicate with the client

a. Replaced “consents after consultation” with “informed consent” throughout the Rules
b. Added a writing requirement in key Rules (e.g., 1.7, 1.8, 1.9)
c. Rule 1.2: clarified allocation of authority between client and lawyer

d. Rule 1.4: combined all aspects of a lawyer’s duty to communicate with a client in Rule 1.4

e. Rule 1.5: emphasized the lawyer's obligation not to charge an unreasonable fee

f. Rule 1.5: added a requirement that a lawyer communicate fees, scope and expenses in writing

NOTE: This recommendation was not passed by the House of Delegates

2. Clarified and strengthened a lawyer’s duty to clients in certain specific problem areas

a. Rule 1.8(j): added prohibition on most client-lawyer sexual relationships

Rule 1.14: added guidance regarding protective measures that may be taken short of requesting a guardian
Rule 1.15: added a requirement that lawyers put advanced payment for fees and expenses in a client’s trust account
Rule 1.17: deleted provision that allowed the purchaser of a law practice to refuse to undertake a representation unless the client consented to pay the purchaser’s normal fees

3. Responded to the changing organization and structure of modern law practice

Rule 1.10: eliminated imputation of most personal interest conflicts
Rule 1.10: added a provision for screening of lateral hires under certain circumstances

NOTE: This recommendation was not passed by the House of Delegates

Rule 1.12: extended application of the Rule to mediators and other third-party neutrals

d. Rule 1.17: permitted sale of a law practice to more than one person as long as the entire practice is sold, and permitted sale of an area of practice

e. Rule 5.5: added a new paragraph that describes four “safe harbors” for lawyers rendering legal services in jurisdictions where they are not admitted to practice NOTE: This recommendation was not debated due to the pending report of the Commission on Multijurisdictional Practice

f. Rules 5.1 and 5.3: added lawyers who possess managerial authority to those responsible under these Rules

g. Rule 2.4: created a new Rule on the lawyer’s role as third-party neutral

h. Rule 8.5: expanded disciplinary enforcement jurisdiction over lawyers not admitted in the jurisdiction if the lawyer renders or offers to render any legal services in the jurisdiction; created new choice of law provision

NOTE: This recommendation was not debated due to the pending report of the Commission on Multijurisdictional Practice

4. Responded to new issues and questions raised by the influence that technological developments are having on the delivery of legal services

a. Rule 7.2: deleted specification of types of public media in paragraph (a) and added a reference to electronic communication

Rule 7.2: permitted payments to for-profit lawyer referral services under certain circumstances
Rule 7.3: extended prohibition to “real-time electronic contact”; exempted contact with lawyers and with person with whom the lawyer has a close personal relationship

5. Clarified existing rules and Comment to provide better guidance and explanation to lawyers

a. Rule 1.0: added a new Rule on Terminology, and several new defined terms

Revised and expanded the Comment throughout to clarify the operation of the Rules
Pointed out in Scope [20] that a violation of the Rules may be evidence of breach of the applicable standard of conduct
Rule 1.3: clarified the lawyer's authority and duty to take certain actions on behalf of the client
Rule 1.6: clarified the lawyer's ability to disclose information to comply with law or court order
Rule 1.7: reorganized the text and Comments to clarify its meaning; added new Comments to respond to common questions regarding conflicts of interest; deleted Rule 2.2 incorporating it into Rule 1.7
Rule 1.8: clarified several subparagraphs
Rules 1.9 and 1.11: clarified the relationship between these Rules
Rule 1.16: clarified the circumstances under which the lawyer may withdraw
Rule 2.3: restructured the Rule to clarify its application in situations where the evaluation poses no significant risk to the client and in situations where there is a significant risk of material and adverse effect on the client’s interest
Rule 3.6: conformed the scienter requirement to be consistent with Rule 1.0
Rule 4.2: clarified application of the Rule to organizational clients
Rule 7.1: deleted paragraphs (b) and (c) as overly broad, limiting Rule 7.1 to a prohibition against false and misleading communications; moved a portion of paragraph (b) to Rule 8.4 because the prohibition against stating or implying that the lawyer can achieve results by means the violate the Rules is applicable beyond advertising
Rule 8.3: conformed the scienter requirement to be consistent with Rule 1.0
Rule 8.4: added material in paragraph (e) that was deleted from Rule 7.1
Rule 8.5: expanded disciplinary enforcement jurisdiction over lawyers not admitted in the jurisdiction if the lawyer renders or offers to render any legal services in the jurisdiction; created new choice of law provision

NOTE: This recommendation was not debated due to the pending report of the Commission on Multijurisdictional Practice

6. Clarified and strengthened a lawyer's obligations to the tribunal and to the justice system

a. Rule 1.6: added provision to permit a lawyer to disclose information to obtain legal advice regarding the lawyer's compliance with the Rules

b. Rule 3.3: revised and reorganized this Rule to clarify and strengthen a lawyer’s obligation of candor to the tribunal with respect to testimony given and actions taken by the client and other witnesses; clarified the lawyer’s duties under the Rule

c. Rule 3.5: created a new paragraph covering post-discharge communication with jurors

d. Rule 4.2: added reference to “court order”

7. Responded to the need for changes in the delivery of legal services to low and middle income persons

a. Rule 5.4: added a provision regarding sharing of court-awarded fees with a nonprofit organization

b. Rule 6.1: added new first sentence regarding the professional responsibility of every lawyer to provide legal services to those unable to pay

c. Rule 6.5: created a new Rule relaxing the conflict of interest and imputation rules in situations where a lawyer, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation that the lawyer will provide continuing representation in the matter

8. Increased protection of third parties

a. Rule 1.6: proposed broadening the grounds for discretionary disclosure of client information, recognizing that many states have already moved in that direction; to permit disclosure to prevent, mitigate or rectify substantial financial injury resulting from a client’s abuse of the lawyer’s services

NOTE: This recommendation was not passed by the House of Delegates.

b. Rule 1.6: broadened the grounds for discretionary disclosure to prevent reasonable certain death or substantial bodily harm

c. Rule 1.15: clarified the lawyer’s duties when in possession of property in which two or more persons claim an interest

d. Rule 4.3: added prohibition on giving legal advice to an unrepresented person if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client

e. Rule 4.4: added a new paragraph regarding obligations of a lawyer upon receipt of an inadvertently sent document

f. Rule 1.18: created a new Rule outlining duties to prospective clients

g. Rule 2.4: created a new Rule on the lawyer’s role as third-party neutral

h. Rule 1.12: extended application of the Rule to mediators and other third-party neutrals

i. Rule 7.4: restructured Rule to separate the two subjects addressed; eliminated the provision that permits lawyers to claim certification as a specialist even though the certifying organization is not approved by an appropriate state authority or accredited by the ABA

III. WASHINGTON GR 24 – DEFINITION OF THE PRACTICE OF LAW

Washington General Rule 24

DEFINITION OF THE PRACTICE OF LAW

(adopted June 8, 2001, effective September 1, 2001)

(a) General Definition: The practice of law is the application of legal principles and judgment with regard to the circumstances or objectives of another entity or person(s) which require the knowledge and skill of a person trained in the law. This includes but is not limited to:

(1) Giving advice or counsel to others as to their legal rights or the legal rights or responsibilities of others for fees or other consideration.

(2) Selection, drafting, or completion of legal documents or agreements which affect the legal rights of an entity or person(s).

(3) Representation of another entity or person(s) in a court, or in a formal administrative adjudicative proceeding or other formal dispute resolution process or in an administrative adjudicative proceeding in which legal pleadings are filed or a record is established as the basis for judicial review.

(4) Negotiation of legal rights or responsibilities on behalf of another entity or person(s).

(b) Exceptions and Exclusions: Whether or not they constitute the practice of law, the following are permitted:

Practicing law authorized by a limited license to practice pursuant to Admission to Practice Rules 8 (special admission for: a particular purpose or action; indigent representation; educational purposes; emeritus membership; house counsel), 9 (legal interns), 12 (limited practice for closing officers), or 14 (limited practice for foreign law consultants).
Serving as a court house facilitator pursuant to court rule.

Acting as a lay representative authorized by administrative agencies or tribunals.

Serving in a neutral capacity as a mediator, arbitrator, conciliator, or facilitator.

Participation in labor negotiations, arbitrations or conciliations arising under collective bargaining rights or agreements.

Providing assistance to another to complete a form provided by a court for protection under RCW chapters 10.14 (harassment) or 26.50 (domestic violence prevention) when no fee is charged to do so.

Acting as a legislative lobbyist.

Sale of legal forms in any format.

Activities which are preempted by Federal law.

Such other activities that the Supreme Court has determined by published opinion do not constitute the unlicensed or unauthorized practice of law or that have been permitted under a regulatory system established by the Supreme Court.

(c) Nonlawyer Assistants: Nothing in this rule shall affect the ability of nonlawyer assistants to act under the supervision of a lawyer in compliance with Rule 5.3 of the Rules of Professional Conduct.

(d) General Information: Nothing in this rule shall affect the ability of a person or entity to provide information of a general nature about the law and legal procedures to members of the public.

(e) Governmental agencies: Nothing in this rule shall affect the ability of a governmental agency to carry out responsibilities provided by law.

(f) Professional Standards: Nothing in this rule shall be taken to define or affect standards for civil liability or professional responsibility.

IV. WSBA CREED OF PROFESSIONALISM

WSBA 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.

V. REPLACEMENT OF WASHINGTON’S LAWYER DISCIPLINARY PROCEDURAL RULES

Barrie Althoff

Early in the year 2000 the Washington Supreme Court and the Board of Governors of the Washington State Bar Association jointly appointed a Discipline 2000 Task Force, comprised of individuals with extensive knowledge and experience in lawyer discipline. The Task Force focused on improving the effectiveness, fairness and efficiency of the procedures within the existing structure since it believed that the structure of Washington’s lawyer discipline system was sound and appropriate without need for major structural change. The full Task Force met 13 times and its committees met more than 70 more times, all meetings being open to the public.

The Discipline 2000 Task Force submitted its report in July, 2001, to the Bar’s Board of Governors which voted at its September 2001 meeting to adopt most of the Task Force’s recommendations and submit them to the Supreme Court for possible rule adoption. The rules were submitted to the Court which adopted them as recommended in September 2002, effective upon publication.

Among the principal changes were the following:

rewrite, reorganize, clarify the existing Rules for Lawyer Discipline and rename them the “Rules for Enforcement of Lawyer Conduct”;.
appoint a chief hearing officer and pay the appointee a small stipend;
authorize hearing officers to approve stipulations not involving suspension or disbarment rather than requiring those stipulations to be submitted to the Disciplinary Board;
subject hearing officers to conduct standards modeled after the state judicial standards;
permit certain dispositive motions and require scheduling orders to keep cases moving timely;
do more to recover discipline costs, including updating the amounts of cost assessed against lawyers receiving discipline and having final unpaid cost orders result in entry of a judgment;
modify sanctions to be consistent with the ABA Standards for Imposing Lawyer Sanctions by eliminating the sanction of “censure” and increasing the maximum suspension period from two years to three years;
permit, under very narrow circumstances, a lawyer facing discipline to permanently resign (the lawyer must admit the misconduct, arrange for restitution and costs, and will be considered disbarred);
clarify the rules for disability proceedings and provide for limited guardianships in Superior Court;
modify hearing and appellate procedures to conform more closely with civil, administrative and appellate practice;
clarify the lawyer’s duty to cooperate in disciplinary investigations as to the waivers required and the effect of attorney/client privilege; and,
provide respondents more efficient means of seeking review of their matters in the system.

The most important Task Force recommendation that was not adopted by the Board of Governors was the Task Force’s unanimous recommendation to reduce the number of disciplinary hearing officers to no more than 10 and to pay them a small stipend. The goal sought by the recommendation was to create a small cadre of hearing officers who, by frequently handling lawyer disciplinary proceedings, would develop extensive knowledge and experience in, and familiarity with, lawyer disciplinary issues and procedures. The Board’s principal stated reasons for rejecting the recommendation were budgetary concerns and uncertainty that payment of a stipend would in fact attract the caliber of lawyers sought as hearing officers. The Board concluded, however, that in the future it may want to reconsider the recommendation.

VI. RECIPROCITY AND MULTIJURISDICTIONAL PRACTICE (“MJP”)

Barrie Althoff

Washington’s Admission to Practice Rule 18 provides for reciprocal admission with abbreviated admission procedures for lawyers admitted to jurisdictions which provide for reciprocal admission for Washington lawyers.

Because of the frequency of overlapping practices of lawyers in Washington, Oregon and Idaho, those states, through an informal compact, have facilitated admissions to their states, by not requiring passage of additional bar exams, for lawyers from the other two states. The Washington Supreme Court adopted its reciprocity rule, APR 18, in 1999. The Idaho Supreme Court approved Idaho Bar Commission Rule 204A, effective October 1, 2001, which permits reciprocal admission for Oregon and Washington lawyers. The Oregon Supreme Court adopted its Admission to Practice Rule 16 effective January 1, 2002, allowing for admission by Washington and Idaho admitted lawyers. The essential elements of the tri-state reciprocity arrangement are:

Graduation from an ABA approved law school (thus, persons admitted to practice via a law-clerk program, such as Washington’s under APR 6, are not eligible);
Prior passage of the Idaho, Washington or Oregon bar examination (thus persons admitted to one of those three states without examination on the basis of reciprocal admission from a state other than those three states are not eligible for tri-state reciprocal admission);
Three years of active, substantial and continuous practice, as the lawyer’s principal occupation, in one or two of the three states immediately before applying for admission to another of the three states;
A showing of good moral character;
Submission of a completed application for admission to practice and payment of applicable fees;
Fifteen hours of continuing legal education in the practice, procedure and ethics of the new state within six months of admission to practice in each state, or, for admission to Oregon, prior to admission in Oregon (but after applying for admission to practice in Oregon); and,
For admission to Oregon, lawyers must comply with Oregon’s mandatory malpractice insurance requirements.

Idaho, Oregon and Washington have also adopted, along with Utah, a compact governing mandatory continuing legal education requirements. Under it a lawyer may satisfy the continuing legal education requirements of the four states by meeting the MCLE requirements of the state in which the lawyer’s principal office is located and then by providing to the other three states a current compliance certificate issued by the home state.

The tri-state compact eases advance cross-admission for lawyers and thereby removes the concerns of multijurisdictional practice as to those three states. Its application is, of course, very limited. It applies only to the three states. It mandates payment of another set or sets of annual bar license fees and maintenance of additional records, and thus will likely be too expensive and cumbersome for many lawyers whose practice currently only occasionally involves practice in the other two states. The admission process is too time-consuming to be useful for the lawyer responding to an immediate client need. Thus, its value is primarily for lawyers who have now, or seek to develop, extensive tri-state practices sufficiently large to justify the added expense and complexity.

A tri-state admitted lawyer practicing in jurisdictions other than the three states must do the same analysis that any other lawyer must do with a multijurisdictional litigation or transactional practice. The lawyer should determine whether the laws of those other jurisdictions require the lawyer to be admitted to practice therein to provide the called-for legal services. If the conduct involves litigation, the necessity of some form of admission is usually clear (other than perhaps as to some pre-litigation activities) since without it the lawyer usually cannot appear in court. Further, in litigation, parties with interests adverse to those of the lawyer and the lawyer’s client in effect police the requirement for admission. If the lawyer’s practices involves alternative dispute resolution, the need for admission is less certain (but see discussion below). Where litigation is not involved, however, and the lawyer is instead engaged in a transactional practice, even where the clients have adverse interests, they have a common interest in seeing that the transaction succeeds and likely view restrictions such as admission to practice requirements as a hindrance to all sides in the transaction. Thus, transactional participants and their lawyers are less likely to either practically care about or to police admission to practice requirements.

Depending on the nature of the lawyer’s practice, it may be possible to anticipate the needs for further admissions far in advance and obtain appropriate admissions prior to a given transaction or litigation so that the lawyer is not thereafter, having failed to anticipate such needed admissions, placed in the position of trying to make virtue out of necessity by having to argue that such admissions were never in fact needed. Bad facts do not make good law.

As a practical matter, where the lawyer’s practice is transactional or involves alternative-dispute-resolution, failure to secure appropriate admissions to practice in another jurisdiction is not likely often to lead to criminal or disciplinary action. The chances of such action increase, however, when the underlying transaction is called into question, most often because that transaction has failed or led to litigation and the client is now seeking a defense to payment of legal fees. In that case, the denial of legal fees is a very real possible consequence. For example, in Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4^th 119, 949 P.2d 1 (1998), cert. denied 525 U.S. 920 (1998), a California court denied legal fees to lawyers admitted in New York, but not in California, for legal services they provided in California. On the other hand, in Estate of Condon, 65 Cal. App. 4^th 1138, 76 Cal. Rptr. 2d 922 (1998), a Colorado lawyer who performed in Colorado legal services for a California resident as to a California estate was permitted legal fees for work performed by him.

A recent Colorado case illustrates how a federal/multi-state multi-jurisdictional practice can deprive a lawyer of a fee. Koscove v. Bolte, 30 P.3d 784 (CO, 2001). A Colorado client agreed to pay 1/3 of recovered mineral royalty rights to Colorado-resident, but not Colorado-admitted, lawyer Bolte. Knowing that Bolte was not licensed in Colorado, but only in Wisconsin, the client retained a Colorado-licensed lawyer to handle federal court litigation in Colorado, with Bolte becoming admitted pro hac vice as co-counsel for that litigation. The litigation recovered a substantial amount for the client, who then paid Bolte but thereafter successfully sued him under Colorado state law to recover the fees on the basis Bolte was not licensed in Colorado. The appellate court, without deciding whether the federal court might have jurisdiction to award Bolte fees for the federal litigation, affirmed the trial court’s finding that the services were the unauthorized practice of law and that the client could recover such fees under a Colorado statute. While Bolte, despite his denials, clearly practiced law in Colorado, equally clearly the client used the Colorado UPL statute to deprive Bolte of earned legal fees. The client here hardly has clean hands. In multi-jurisdictional cases like this, where the public has not been harmed but in fact benefited, it is questionable whether the UPL provisions play fair between lawyer and client or protect the public from anything. For another recent federal-state multijurisdictional case, see In re Lite Ray Realty Corp., Bankr. S.D.N.Y., No. 00-15007-SMB, 1/16/01 (federal bankruptcy court not permitting a New York-suspended lawyer to practice before it).

In August 2002, the American Bar Association House of Delegates considered the issue of multijurisdictional practice and adopted various model rule amendments permitting such practice. Included were significant amendments to Model RPC 5.5 (relating to unauthorized practice of law and multijurisdictional practice of law), Model RPC 8.5 (relating to disciplinary authority and choice of law), and various amendments to the related Model Rules of Lawyer Disciplinary Enforcement. The model rules are, of course, merely model rules and have no authority unless adopted by the respective states. The ABA amendments were in turn recommended in September 2002 by the WSBA RPC Committee to the WSBA Board of Directors for its consideration as potential rule amendments to Washington’s court rules. The Board has not yet taken a position as to the recommendations.

American Bar Association Model Rule 5.5 and Official Comment

(as approved by ABA House of Delegates, August 2002,

and showing changes from prior version)

RULE 5.5: UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW

(a) A lawyer shall not~~: (a)~~ practice law in a jurisdiction ~~where doing so violates~~ in violation of the regulation of the legal profession in that jurisdiction;, or ~~(b)~~ assist ~~a person who is not a member of the bar~~ another in ~~the performance of activity that constitutes the unauthorized practice of law~~ doing so.

(b) A lawyer who is not admitted to practice in this jurisdiction shall not:

(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or

(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.

(c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:

(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;

(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;

(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice.

(d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission; or

(2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction.

Comment

[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person.

~~[1]~~ [2] The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. ~~Paragraph (b)~~ This Rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.

[3] ~~Likewise, it does not prohibit lawyers from providing~~ A lawyer may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. Lawyers also may assist independent nonlawyers, such as paraprofessionals, who are authorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se.

[4] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1(a) and 7.5(b).

[5] There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally here.

[6] There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in this jurisdiction, and may therefore be permissible under paragraph (c). Services may be “temporary” even though the lawyer provides services in this jurisdiction on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation.

[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word “admitted” in paragraph (c) contemplates that the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.

[8] Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this paragraph to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client.

[9] Lawyers not admitted to practice generally in a jurisdiction may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. This authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to informal practice of the tribunal or agency. Under paragraph (c)(2), a lawyer does not violate this Rule when the lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court rule or other law of this jurisdiction requires a lawyer who is not admitted to practice in this jurisdiction to obtain admission pro hac vice before appearing before a tribunal or administrative agency, this Rule requires the lawyer to obtain that authority.

[10] Paragraph (c)(2) also provides that a lawyer rendering services in this jurisdiction on a temporary basis does not violate this Rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice. Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in this jurisdiction.

[11] When a lawyer has been or reasonably expects to be admitted to appear before a court or administrative agency, paragraph (c)(2) also permits conduct by lawyers who are associated with that lawyer in the matter, but who do not expect to appear before the court or administrative agency. For example, subordinate lawyers may conduct research, review documents, and attend meetings with witnesses in support of the lawyer responsible for the litigation.

[12] Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in this jurisdiction if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require.

[13] Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in this jurisdiction that arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted but are not within paragraphs (c)(2) or (c)(3). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers.

[14] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law.

[15] Paragraph (d) identifies two circumstances in which a lawyer who is admitted to practice in another United States jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law as well as provide legal services on a temporary basis. Except as provided in paragraphs (d)(1) and (d)(2), a lawyer who is admitted to practice law in another jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction.

[16] Paragraph (d)(1) applies to a lawyer who is employed by a client to provide legal services to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to the employer’s officers or employees. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The lawyer’s ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer’s qualifications and the quality of the lawyer’s work.

[17] If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer may be subject to registration or other requirements, including assessments for client protection funds and mandatory continuing legal education.

[18] Paragraph (d)(2) recognizes that a lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.

[19] A lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject to the disciplinary authority of this jurisdiction. See Rule 8.5(a).

[20] In some circumstances, a lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d) may have to inform the client that the lawyer is not licensed to practice law in this jurisdiction. For example, that may be required when the representation occurs primarily in this jurisdiction and requires knowledge of the law of this jurisdiction. See Rule 1.4(b).

[21] Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 7.1 to 7.5.

1 This article combines and updates two of the author’s articles which first appeared in the June and July, 1997 issues of the Washington State Bar News. © Barrie Althoff 2002. The opinions expressed herein are the author’s and are not official or unofficial positions of the Washington State Bar Association.

2. Opinions expressed are the author’s and not official or unofficial opinions of the Washington State Bar Association.

3 For a thorough discussion of some of the problems of working with pro se litigants from the perspective of the judiciary and court managers, see Jona Goldschmidt, Barry Mahoney, Harvey Solomon and Joan Green, Meeting the Challenge of Pro Se Litigation - A Report and Guidebook for Judges and Court Managers (American Judicature Society/State Justice Institute, 1997).

4 This paragraph, which has no counterpart in the ABA Ethics 2000 rules or commentary, is intended to clarify when an opposing lawyer may, without violating RPC 4.2, communicate with a person being represented on a limited basis by a lawyer.