The Washington Rules of Professional Conduct (RPC) open with a declaration of the fundamental principles that guide a society moored in the rule of law and the unique position lawyers hold.
The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self-government…. The Rules of Professional Conduct point the way to the aspiring lawyer and provide standards by which to judge the transgressor.
Laws are notoriously slow to change, and though expectations of ethics in the practice of law never change, there is the occasional tweak, refinement, update, or interpretation of unique ethical challenges. Below is a brief, non-exhaustive glimpse at some of the most important recent developments in lawyer ethics based on input from Mark Fucile, a prolific WSBA contributing writer on ethics for both NWSidebar and NWLawyer; as well as members of the WSBA Office of Disciplinary Counsel and the Professional Responsibility Program who eat, sleep, and breathe the RPCs.
Advance Waivers of Future Conflicts
Effective Sept. 1, 2018, a new comment, Comment 22, was added to RPC 1.7 that specifically addresses advance waivers of future conflicts. The new comment is based on its ABA Model Rule counterpart and it has had a somewhat unusual history.
According to Fucile, advance waivers of conflicts was one of the most important structural developments in Washington in the past few years. It took the form of a formal comment to the RPCs adopted by the Supreme Court, which mirrored an ABA Model Rule counterpart, which itself was rejected by the Washington Supreme Court in 2006. For an in-depth review of this opinion, read “Advance Waivers as a Practice Management Tool” in the December 2018 issue of NWLawyer.
Substantially Related Conflicts
Division 1 of the Washington State Court of Appeals on July 29 weighed in on former-client conflicts and disqualification in the case, Richard Plein, et ano, Resps v. USAA Casualty Ins Co. The court concluded the plaintiff’s attorney had a conflict from a previous working relationship with the insurance company.
In a key introductory statement on the case, the court said: “We address whether, given the facts of this case, a law firm may represent a person adverse to a former client. In doing so, we analyze whether this case constitutes a matter ‘substantially related’ to the firm’s representation of the former client … .” It ultimately concluded that “Keller’s representation of the Pleins generates a substantial risk that USAA’s confidential information would materially advance the Pleins’ position in this case.”
Misdemeanor Plea Bargains
ABA Formal Opinion 486 (May 9, 2019) surveys the obligations of prosecutors in negotiating plea bargains for misdemeanor offenses; noting, among other things, that in matters involving an unrepresented accused, a prosecutor may not pressure, advise, or induce acceptance of a plea or waiver of the right to counsel.
“The opinion cited national statistics showing that misdemeanors make up approximately 80 percent of state criminal dockets, a figure that has doubled since 1972 with the greatest impact ‘on communities of color,’” according to ABA News. “The ‘vast majority,’ [the Standing Committee on Ethics and Professional Responsibility] said, plead guilty at their initial appearance, and often the accused does not understand the full ramifications that such a plea could have on such life areas as employment, immigration status and a wide range of public services.”
ABA Formal Ethics Opinion 485 (Feb. 14, 2019) addresses whether a judicial officer may decline to perform marriage ceremonies for same-sex couples. Stemming from the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, the ABA Standing Committee on Ethics and Professional Responsibility found that a judge who refuses to perform a same-sex marriage could be in violation of the Model Code of Judicial Conduct.
“The public is entitled to expect that judges will perform their activities and duties fairly, impartially and free from bias and prejudice,” the opinion states.
Fee Splitting Between Lawyers
ABA Formal Opinion 487 (June 18, 2019) analyzes a lawyer’s ethical duties when a client has engaged replacement successor counsel in a contingent fee matter, and recognizes that a portion of any contingent fee may be owed to the predecessor counsel. As summarized by ABA News, “The opinion emphasizes that a previous attorney, whose services are terminated without cause, may be entitled to a fee for services performed prior to discharge and that any proposed agreement between the initial attorney and a successor should be fully disclosed and discussed with the client.”
Uniqueness of In-House Counsel
On July 18, the Washington Supreme Court reversed a Court of Appeals decision in Karstetter v. King County Corrections Guild, 2019 WL 3227311 (July 18, 2019). In a 6-3 majority opinion, the Supreme Court concluded that the employer-employee relationship of an in-house attorney is not the same as a traditional private practice attorney-client relationship and, therefore, in-house counsel are permitted to sue their employers for wrongful discharge.
“[W]e must decide whether modern in-house employee attorneys should be treated differently from traditional private practice lawyers under our RPCs,” the court majority wrote. “We conclude that they should.”