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In re Proposed Amendments to Rules of Professional Conduct (RPC) 1.0A — Terminology

Supreme Court of Washington

June 2, 2016

IN THE MATTER OF THE PROPOSED AMENDMENTS TO RULES OF PROFESSIONAL CONDUCT (RPC) 1.0A — TERMINOLOGY, 1.1 — COMPETENCE, 1.2 — SCOPE OF REPRESENTATION AND ALLOCATION, 1.4 — COMMUNICATION, 1.5 — FEES, 1.6 — CONFIDENTIALITY OF INFORMATION, 1.10 - IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE, 1.14 — CLIENT WITH DIMINISHED CAPACITY, 1.17 — SALE OF LAW PRACTICE, 1.18 — DUTIES TO PROSPECTIVE CLIENT, 4.4 - RESPECT FOR RIGHTS OF THIRD PERSON, 5.3 — RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS, 5.5 — UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW, 6.5 - NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICE PROGRAMS, 7.1 — COMMUNICATIONS CONCERNING A LAWYERS SERVICES, 7.2 — ADVERTISING, 7.3 - DIRECT CONTACT WITH PROSPECTIVE CLIENTS, AND 8.5 — DISCIPLINARY AUTHORITY; CHOICE OF LAW

          ORDER

         The Washington State Bar Association, having recommended the adoption of the proposed amendments to Rules of Professional Conduct (RPC) 1, 0A — Terminology, 1.1 — Competence, 1.2 — Scope of Representation and Allocation, 1.4 — Communication, 1.5 — Fees, 1.6 — Confidentiality of Information, 1.10 — Imputation of Conflicts of Interest: General Rule, 1.14 — Client with Diminished Capacity, 1.17 — Sale of Law Practice, 1.18 — Duties to Prospective Client, 4.4 — Respect for Rights of Third Person, 5.3 — Responsibilities Regarding Nonlawyer Assistants, 5.5 — Unauthorized Practice of Law; Multijurisdictional Practice of Law, 6.5 — Nonprofit and Court-Annexed Limited Legal Service Programs, 7.1 — Communications Concerning a Lawyers Services, 7.2 — Advertising, 7.3 — Direct Contact with Prospective Clients, and 8.5 — Disciplinary Authority; Choice of Law, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

         Now, therefore, it is hereby

         ORDERED:

         (a) That the new rules as attached hereto are adopted.

         (b) That the new rules will be published in the Washington Reports and will become effective September 1, 2016.

         RULES OF PROFESSIONAL CONDUCT RULES: 1.0A, 1.1, 1.2, 1.4, 1.5, 1.6, 1.10, 1.14, 1.17, 1.18, 4.4, 5.3, 5.5, 6.5, 7.1, 7.2, 7.3, 8.5

         RULE 1.0A

         TERMINOLOGY

         (a) - (m) [Unchanged.]

         (n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and email electronic communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

         Comment

         Screened

         ********

         [Washington revision] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer or LLLT remains protected. The personally disqualified lawyer or LLLT should acknowledge the obligation not to communicate with any of the other lawyers or LLLTs in the firm with respect to the matter. Similarly, other lawyers or LLLTs in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer or LLLT with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers or LLLTs of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer or LLLT to avoid any communication with other firm personnel and any contact with any firm files or other materials information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer or LLLT relating to the matter, denial of access by the screened lawyer or LLLT to firm files or other materials information, including information in electronic form, relating to the matter and periodic reminders of the screen to the screened lawyer or LLLT and all other firm personnel.

         RULE 1.1

         COMPETENCE

         A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

         Comment

         ********

         Retaining or Contracting With Other Lawyers

         Before a lawyer retains or contracts with other lawyers outside the lawyer's own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain informed consent from the client and must reasonably believe that the other lawyers' services will contribute to the competent and ethical representation of the client. See also Rules 1.2 (allocation of authority). 1.4 (communication with client). 1.5(e) (fee sharing). 1.6 (confidentiality), and 5.5(a) (unauthorized practice of law). The reasonableness of the decision to retain or contract with other lawyers outside the lawyer's own firm will depend upon the circumstances, including the education, experience and reputation of the nonfirm lawyers: the nature of the services assigned to the nonfirm lawyers: and the legal protections. professional conduct rules, and ethical environments of the jurisdictions in which the services will be performed, particularly relating to confidential information.

         Washington revision] When lawyers or LLLTs from more than one law firm are providing legal services to the client on a particular matter, the lawyers and/or LLLTs ordinarily should consult with each other and the client about the scope of their respective representations and the allocation of responsibility among them. See Rule 1.2. When making allocations of responsibility in a matter pending before a tribunal, lawyers. LLLTs. and parties may have additional obligations that are a matter of law beyond the scope of these Rules.

         Maintaining Competence

         To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

         Additional Washington Comments (3 9-10)

         This rule applies to lawyers only when they are providing legal services. Where a lawyer is providing nonlawyer services ("supporting lawyer"') in support of a lawyer who is providing legal services ("supported lawyer"), the supported lawyer should treat the supporting lawyer as a nonlawyer assistant for purposes of this rule and Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants').

         In some circumstances, a lawyer can also provide adequate representation by enlisting the assistance of an LLLT of established competence, within the scope of the LLLT's license and consistent with the provisions of the LLLT RPC. However, a lawyer may not enter into an arrangement for the division of the fee with an LLLT who is not in the same firm as the lawyer. See Comment [7] to Rule 1.5(e); LLLT RPC 1.5(e). Therefore, a lawyer may enlist the assistance of an LLLT who is not in the same firm only (1) after consultation with the client in accordance with Rules 1.2 and 1.4, and (2) by referring the client directly to the LLLT.

         RULE 1.2 SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN LAWYER AND CLIENT

         (a)-(f) [Unchanged.]

         Comment

         Allocation of Authority between Client and Lawyer

         Washington revision! Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is impliedly authorized to carry out the representation. See also Rule 1.1. comments [6] and [10] as to decisions to associate other lawyers or LLLTs.

         RULE 1.4 COMMUNICATION

         (a) - (b) [Unchanged.] Comment

         ********

         Communicating with Client

         [Washington revision] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from an opposing lawyer an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a). See also Rule 1.1. comments [6] and [10] as to decisions to associate other lawyers or LLLTs.

         ********

         A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone hallo should be promptly returned or acknowledged. A lawyer should promptly respond to or acknowledge client communications.

         RULE 1.5

         FEES

         (a) - (f) [Unchanged.]

         Comment

         ********

         Division of Fee

         [Washington revision] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement, including the share that each lawyer is to receive, and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1. See also Rule 1.1. comments T61 and [101 as to decisions to associate other lawyers or LLLTs. See also Washington Comment [18],

         RULE 1.6

         CONFIDENTIALITY OF INFORMATION

         (a) [Unchanged.]

         (b) A lawyer to the extent the lawyer reasonably believes necessary:

         (1)-(6) [Unchanged.]

         may reveal information relating to the representation to detect and resolve conflicts of interest arising from the lawyer's change of employment or from changes in the composition or ownership of a firm. but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client;

         may reveal information relating to the representation of a client to inform a tribunal about any breach of fiduciary responsibility when the client is serving as a court-appointed fiduciary such as a guardian, personal representative, or receiver.

         (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of. or unauthorized access to. information ...


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