WSR 07-09-020

RULES OF COURT

STATE SUPREME COURT


[ April 5, 2007 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO RPC 1.8(e) AND COMMENT 10, NEW 21 AND RENUMBERED COMMENTS 22, 23 AND 24 )

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ORDER

NO. 25700-A-871

The Washington State Bar Association having recommended the adoption of the proposed amendments to RPC 1.8(e) and Comment 10, New 21 and renumbered Comments 22, 23, and 24, and the Court having determined that the proposed amendment will aid in the prompt and orderly administration of justice and further determined that an emergency exists which necessitates an early adoption;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as attached hereto are adopted.

(b) That pursuant to the emergency provisions of GR 9(j)(1), the amendments will be published expeditiously and become effective upon publication.

DATED at Olympia, Washington this 5th day of April, 2007.
Alexander, C. J.


C. Johnson, J.


Chambers, J.


Madsen, J.


Owens, J.


Sanders, J.


Fairhurst, J.


Bridge, J.


J. M. Johnson, J.



RULES OF PROFESSIONAL CONDUCT (RPC)

RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES


(a) - (d) [Unchanged.]

(e) A lawyer shall not, while representing a client in connection with contemplated or pending litigation, provide advance or guarantee financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may advance court costs and or guarantee the expenses of litigation, the repayment of which may be contingent on the outcome of a matter including court costs, expenses of investigation, expenses of medical examination, and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses; and

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client in matters maintained as class actions only, repayment of expenses of litigation may be contingent on the outcome of the matter.

(f) - (l) [Unchanged.]


Comment


[1] - [9] [Unchanged.]


Financial Assistance


[10] [Washington revision] Lawyers may not subsidize lawsuits or administrative proceedings brought on behalf of their clients, including making or guaranteeing loans to their clients for living expenses, because to do so would encourage clients to pursue lawsuits that might not otherwise be brought and because such assistance gives lawyers too great a financial stake in the litigation. These dangers do not warrant a prohibition on a lawyer lending a client court costs and litigation expenses, including the expenses of medical examination and the costs of obtaining and presenting evidence, because these advances are virtually indistinguishable from contingent fees and help ensure access to the courts. Similarly, an exception allowing lawyers representing indigent clients to pay court costs and litigation expenses regardless of whether these funds will be repaid is warranted. See Washington Comment [21].

[11] - [20] [Unchanged]


Additional Washington Comments (21-234)


Financial Assistance


[21] Paragraph (e) of Washington's Rule differs from the Model Rule. Paragraph (e) is based on former Washington RPC 1.8(e). The minor structural modifications to the general prohibition on providing financial assistance to a client do not represent a change in Washington law, and paragraph (e) is intended to preserve prior interpretations of the Rule and prior Washington practice.


Client-Lawyer Sexual Relationships


[212] Paragraph (j)(2) of Washington's Rule, which prohibits sexual relationships with a representative of an organizational client, differs from the Model Rule. Comment [19] to Model Rule 1.8 was revised to be consistent with the Washington Rule.

[223] Paragraph (j)(3) of the Rule specifies that the prohibition applies with equal force to any lawyer who assists in the representation of the client, but the prohibition expressly does not apply to other members of a firm who have not assisted in the representation.


Personal Relationships


[234] Model Rule 1.8 does not contain a provision equivalent to paragraph (l) of Washington's Rule. Paragraph (l) prohibits representations based on a lawyer's personal conflict arising from his or her relationship with another lawyer. Paragraph (l) is a revised version of former Washington RPC 1.8(i). See also Comment [11] to Rule 1.7.

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

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