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