WSR 02-07-006

RULES OF COURT

STATE SUPREME COURT


[ March 6, 2002 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RPC 1.2, RPC 4.2, RPC 4.3, NEW RPC 6.5, NEW CR 4.2, NEW CRLJ 4.2, CR 11, CrRLJ 11 (BY DESIGNATING EXISTING CR 11 AND CRLJ 11 AS CR 11(a) AND CRLJ 11(a) AND BY ADDING NEW CR 11(b) AND NEW CRLJ 11(b)) NEW CR 70.1 AND NEW CRLJ 70.1 )

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ORDER

NO. 25700-A-727


The Washington State Bar Association and Access to Justice Board having recommended the adoption of the proposed amendments to RPC 1.2, RPC 4.2, RPC 4.3, New RPC 6.5, New CR 4.2, New CRLJ 4.2, CR 11, CrRLJ 11 (by designating existing CR 11 and CRLJ 11 as CR 11(a) and CRLJ 11(a) and by adding New CR 11(b) and New CRLJ 11(b)) New CR 70.1 and New CRLJ 70.1, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

ORDERED:

(a) That pursuant to the provisions of GR 9(f), the proposed amendments as attached hereto are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Office of the Administrator for the Court's websites expeditiously.

(b) The purpose statement, as required by GR 9(d), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than 90 days from the date published in the Washington Reports. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Lisa.Bausch@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 6th day of March 2002.

Gerry L. Alexander

Chief Justice

GR 9 COVER SHEET

Suggested Amendments to

Rules of Professional Conduct,

Superior Court Civil Rules, and

Civil Rules for Courts of Limited Jurisdiction

To

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
(B) 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 - 4th 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.1

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.

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


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.


IV. 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.


V. 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.

(C) 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.

(D) 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

RULES OF PROFESSIONAL CONDUCT (RPC)

RPC 1.2 - SCOPE OF REPRESENTATION



(a) No change.

(b) No change.

(c) 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.

(d) No change.

(e) No change.



SUGGESTED AMENDMENT

RULES OF PROFESSIONAL CONDUCT (RPC)

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

RULES OF PROFESSIONAL CONDUCT (RPC)

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.

(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 NEW RULE

RULES OF PROFESSIONAL CONDUCT (RPC)

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

RULES FOR SUPERIOR COURT - CIVIL RULES (CR)

CR 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 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

CIVIL RULES FOR COURTS OF LIMITED JURISDICTION (CR)

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

RULES FOR SUPERIOR COURT - CIVIL RULES (CR)

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

CIVIL RULES FOR COURTS OF LIMITED JURISDICTION (CRLJ)

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.

(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 NEW RULE

RULES FOR SUPERIOR COURT - CIVIL RULES (CR)

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

CIVIL RULES FOR COURTS OF LIMITED JURISDICTION (CRLJ)

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.

(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).

Reviser's note: The typographical errors in the above material occurred in the copy filed by the State Supreme Court and appear in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office