The Washington Supreme Court recently approved a package of related Rules of Professional Conduct (RPC) amendments addressing imputed conflicts for public defenders. “Imputed” conflicts are those shared by all law practitioners working in a single firm. Some public defenders are government employees while others work for law firms or nonprofits.
The treatment of public defenders under the imputed conflict rules varied depending on whether they are government employees or work for non-governmental employers. Conflicts imputed to government and nongovernmental lawyers are addressed by, respectively, RPCs 1.11 and 1.10. RPC 1.11 concerns practice for traditional governmental entities like a city or an agency when the entity is the client. RPC 1.10, by contrast, focusses on lawyers working for law firms or other nongovernmental entities with a broader array of clients.
Because public defenders represent individuals rather than governmental bodies, the amendments clarify that imputed conflicts for public defenders are controlled by RPC 1.10 rather than RPC 1.11 regardless of the nature of their employer. The amendments added a new sentence to RPC 1.10(d): “…lawyers appointed or assigned to represent indigent members of the public (public defenders) are subject to this rule regardless of whether they are government employees.”
The amendments also add a new Comment 15 to RPC 1.10: “Public defenders represent individuals, not the government. For this reason, imputed conflicts in public defender firms are determined under this rule rather than RPC 1.11.” Related comments were added to RPCs 1.11 and 1.0(A), defining various terms used in the RPCs.
The amendments become effective on Sept. 1 and are available on the Washington Courts’ website.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
