WSR 11-13-060

RULES OF COURT

STATE SUPREME COURT


[ June 10, 2011 ]

IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO GR 30 -- ELECTRONIC FILING; MAR -- 3.2 -- AUTHORITY OF ARBITRATOR; MAR 6.2 -- FILING OF AWARD; MAR 6.3 -- JUDGMENT ON AWARD; MAR 6.4 -- WITNESS COSTS AND ATTORNEY FEES AND COSTS AND MAR 7.1 -- REQUEST FOR TRAIL DE NOVO; RPC 1.10 (a), (e) -- IMPUTATION ON CONFLICTS OF INTEREST: GENERAL RULE; RPC 1.15A (h)(7) -- SAFEGUARDING PROPERTY; RPC 1.2(f) -- SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN LAWYER AND CLIENT; RPC 1.6 -- CONFIDENTIALITY OF INFORMATION; RPC 1.8(g) -- CONFLICT OF INTEREST: CURRENT CLIENT: SPECIFIC RULES; RPC 3.4 -- FAIRNESS TO OPPOSING PARTY AND COUNSEL; AND RPC 5.5 -- UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW; CrRLJ 6.13 -- EVIDENCE )

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ORDER

NO. 25700-A-979


The JIS Committee having recommended the adoption of the proposed amendments to GR 30 -- Electronic Filing; the Washington State Bar Association having recommended the adoption of the proposed amendments to MAR -- 3.2 -- Authority of Arbitrator; MAR 6.2 -- Filing of Award; MAR 6.3 -- Judgment on Award; MAR 6.4 -- Witness Costs and Attorney Fees and Costs and MAR 7.1 -- Request for Trail De Novo; RPC 1.10 (a), (e) -- Imputation of Conflicts of Interest: General Rule; RPC 1.15A (h)(7) -- Safeguarding Property; RPC 1.2(f) -- Scope of Representation and Allocation of Authority Between Lawyer and Client; RPC 1.6 -- Confidentiality of Information; RPC 1.8(g) -- Conflict of Interest: Current Client: Specific Rules; RPC 3.4 -- Fairness to Opposing Party and Counsel; and RPC 5.5 -- Unauthorized Practice of Law; Multijurisdictional Practice of Law; and the Department of Licensing having recommended the adoption of the proposed amendments to CrRLJ 6.13 -- Evidence, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

ORDERED:

(a) That the amendments as shown below are adopted.

(b) That the amendments will be published in the Washington Reports and will become effective September 1, 2011.

DATED at Olympia, Washington this 10th day of June, 2011.
Madsen, C.J.


C. Johnson, J.


J. M. Johnson, J.


Alexander, J.


Fairhurst, J.


Owens, J.


Stephens, J.


Chambers, J.


Wiggins, J.



GR 30 ELECTRONIC FILING

(a) Definitions


(1) "Digital signature" is defined in RCW 19.34.020.

(2) "Electronic Filing" is the electronic transmission of information to a court or clerk for case processing.

(3) "Electronic Document" is an electronic version of information traditionally filed in paper form, except for documents filed by facsimile which are addressed in GR 17. An electronic document has the same legal effect as a paper document.

(4) "Electronic Filing Technical Standards" are those standards, not inconsistent with this rule, adopted by the Judicial Information System committee to implement electronic filing.

(5) "Filer" is the person whose user ID and password are used to file an electronic document.

Comment: The form of "digital signature" that is acceptable is not limited to the procedure defined by chapter 19.34 RCW, but may include other equivalently reliable forms of authentication as adopted by local court rule or general.

(b) Electronic filing authorization, exception, service, and technology equipment.

(1) The clerk may accept for filing an electronic document that complies with the Court Rules and the Electronic Filing Technical Standards.

(2) A document that is required by law to be filed in non-electronic media may not be electronically filed. Comment Certain documents are required by law to be filed in non-electronic media. Examples are original wills, certified records of proceedings for purposes of appeal, negotiable instruments, and documents of foreign governments under official seal.

(3) Electronic Transmission from the Court. The clerk may electronically transmit notices, orders, or other documents to a party who has filed electronically, or has agreed to accept electronic documents from the court, and has provided the clerk the address of the party's electronic mailbox. It is the responsibility of the filing or agreeing party to maintain an electronic mailbox sufficient to receive electronic transmissions of notices, orders, and other documents.

(4) Electronic Service by Parties. Parties may electronically serve documents on other parties of record only by agreement.

(5) A court may adopt a local rule that mandates electronic filing by attorneys provided that the attorneys are not additionally required to file paper copies except for those documents set forth in (b)(2). The local rule shall not be inconsistent with this Rule and the Electronic Filing Technical Standards, and the local rule shall permit paper filing upon a showing of good cause. Electronic filing should not serve as a barrier to access.

Comment: When adopting electronic filing requirements, courts should refrain from requiring counsel to provide duplicate paper pleadings as "working copies" for judicial officers.

(c) Time of Filing, Confirmation, and Rejection.

(1) An electronic document is filed when it is received by the clerk's designated computer during the clerk's business hours; otherwise the document is considered filed at the beginning of the next business day.

(2) The clerk shall issue confirmation to the filing party that an electronic document has been received.

(3) The clerk may reject a document that fails to comply with applicable electronic filing requirements. The clerk must notify the filing party of the rejection and the reason therefore.

(d) Authentication of Electronic Documents.

(1) Procedures

(A) A person filing an electronic document must have applied for and received a user ID and password from a government agency or a person delegated by such agency in order to use the applicable electronic filing service provider.

Comment: The committee encourages local clerks and courts to develop a protocol for uniform statewide single user ID's and passwords.

(B) All electronic documents must be filed by using the user ID and password of the filer.

(C) A filer is responsible for all documents filed with his or her user ID and password. No one shall use the filer's user ID and password without the authorization of the filer.

(2) Signatures

(A) Attorney Signatures - An electronic document which requires an attorney's signature may be signed with a digital signature or signed in the following manner:


s/John Attorney

State Bar Number 12345

ABC Law Firm

123 South Fifth Avenue

Seattle, WA 98104

Telephone: (206) 123-4567

Fax: (206) 123-4567

E-mail: John.Attorney@lawfirm.com


(B) Non-attorney signatures - An electronic document which requires a non-attorney's signature and is not signed under penalty of perjury may be signed with a digital signature or signed in the following manner:


s/John Citizen

123 South Fifth Avenue

Seattle, WA 98104

Telephone: (206) 123-4567

Fax: (206) 123-4567

E-mail: John.Citizen@email.com


(C) Non-attorney signatures on documents signed under penalty of perjury - Except as set forth in (d)(2)(D) of this rule, if the original document requires the signature of a non-attorney signed under penalty of perjury, the filer must either:

(i) Scan and electronically file the entire document, including the signature page with the signature, and maintain the original signed paper document for the duration of the case, including any period of appeal, plus sixty (60) days thereafter; or

(ii) Ensure the electronic document has the digital signature of the signer.

(D) Law enforcement officer signatures on documents signed under penalty of perjury. Arresting or citing officer signatures on citations, and notices of infraction filed electronically in courts of limited jurisdiction -

(i) A citation or notice of infraction initiated by an arresting or citing officer as defined in IRLJ 1.2(j) and in accordance with CrRLJ 2.1 or IRLJ 2.1 and 2.2 is presumed to have been signed when the arresting or citing officer uses his or her user id and password to electronically file the citation or notice of infraction.

(ii) Any document initiated by a law enforcement officer is presumed to have been signed when the officer uses his or her user ID and password to electronically submit the document to a court or prosecutor through the Statewide Electronic Collision & Traffic Online Records application, the Justice Information Network Data Exchange, or a local secured system that the presiding judge designates by local rule. Unless otherwise specified, the signature shall be presumed to have been made under penalty of perjury under the laws of the State of Washington and on the date and at the place set forth in the citation.

(E) Multiple signatures - If the original document requires multiple signatures, the filer shall scan and electronically file the entire document, including the signature page with the signatures, unless:

(i) The electronic document contains the digital signatures of all signers; or

(ii) For a document that is not signed under penalty of perjury, the signator has the express authority to sign for an attorney or party and represents having that authority in the document.

If any of the non-digital signatures are of non-attorneys, the filer shall maintain the original signed paper document for the duration of the case, including any period of appeal, plus sixty (60) days thereafter.

(F) Court Facilitated Electronically Captured Signatures - An electronic document that requires a signature may be signed using electronic signature pad equipment that has been authorized and facilitated by the court. This document may be electronically filed as long as the electronic document contains the electronic captured signature. (3) An electronic document filed in accordance with this rule shall bind the signer and function as the signer's signature for any purpose, including CR 11. An electronic document shall be deemed the equivalent of an original signed document if the filer has complied with this rule. All electronic documents signed under penalty of perjury must conform to the oath language requirements set forth in RCW 9A.72.085 and GR 13.

(e) Filing fees, electronic filing fees.

(1) The clerk is not required to accept electronic documents that require a fee. If the clerk does accept electronic documents that require a fee, the local courts must develop procedures for fee collection that comply with the payment and reconciliation standards established by the Administrative Office of the Courts and the Washington State Auditor.

(2) Anyone entitled to waiver of non-electronic filing fees will not be charged electronic filing fees. The court or clerk shall establish an application and waiver process consistent with the application and waiver process used with respect to non-electronic filing and filing fees.

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


SUGGESTED AMENDMENT

MANDATORY ARBITRATION RULES (MAR)

Rule 3.2 - Authority of Arbitrator


(a) Authority of Arbitrator. An arbitrator has the authority to:

(1) Decide procedural issues arising before or during the arbitration hearing, except issues relating to the qualifications of an arbitrator;

(2) Invite, with reasonable notice, the parties to submit trial briefs;

(3) Examine any site or object relevant to the case;

(4) Issue a subpoena under rule 4.3;

(5) Administer oaths or affirmations to witnesses;

(6) Rule on the admissibility of evidence under rule 5.3;

(7) Determine the facts, decide the law, and make an award;

(8) Award costs and attorney fees as authorized by law; and

(9) Perform other acts as authorized by these rules or local rules adopted and filed under rule 8.2.

(b) Authority of the Court. The court shall decide:

(1) Motions for involuntary dismissal, motions to change or add parties to the case, and motions for summary judgment shall be decided by the court and not by the arbitrator; and

(2) Issues relating to costs and attorney fees if those issues cannot otherwise be decided by the arbitrator.


SUGGESTED AMENDMENT

MANDATORY ARBITRATION RULES (MAR)

Rule 6.2 - Filing of Award



Filing and Service of Award. Within 14 days after the conclusion of the arbitration hearing, the arbitrator shall file the award with the clerk of the superior court, with proof of service of a copy on upon each party. On the arbitrator's application in cases of unusual length or complexity, the arbitrator may apply for and the court may allow up to 14 additional days for the filing and service of the award. If the arbitrator fails to timely file and serve the award and proof of service, a party may, after notice to the arbitrator, file a motion with the court for an order directing the arbitrator to do so by a date certain. Late filing shall not invalidate the award. The arbitrator may file with the court and serve upon the parties an amended award to correct an obvious error made in stating the award if done within the time for filing an award or upon application to the superior court to amend.


SUGGESTED AMENDMENT

MANDATORY ARBITRATION RULES (MAR)

Rule 6.3 - Judgment on Award



Judgment. If within 20 days after the award is filed the 20-day period specified in rule 7.1(a) no party has properly sought a trial de novo under rule 7.1, the prevailing party on notice as required by CR 54(f) shall present to the court a judgment on the award of arbitration for entry as the final judgment. A judgment so entered is subject to all provisions of law relating to judgments in civil actions, but it is not subject to appellate review and it may not be attacked or set aside except by a motion to vacate under CR 60.


SUGGESTED AMENDMENT

MANDATORY ARBITRATION RULES (MAR)

Rule 6.4 - Witness Costs and Attorney Fees and Costs



(a) Request. Any request for costs and attorney fees shall be filed with the arbitrator and served upon all other parties no later than seven days after receipt of the award. Any party failing to timely file and serve such a request is deemed to have waived the right to an award of costs and attorney fees, unless a request for a trial de novo is filed.

(b) Response. Any response to the request for costs and attorney fees shall be filed with the arbitrator and served upon all other parties within seven days after service of the request.

(c) Hearing. The arbitrator has discretion to hold a hearing on the request for costs and attorney fees.

(d) Decision. Within 14 days after the service of the request for costs and attorney fees, the arbitrator shall file an amended award granting the request in whole or in part, or a denial of costs and attorney fees, with the clerk of the superior court, with proof of service upon each party. If the arbitrator fails to timely file and serve the amended award or denial and proof of service, a party may, after notice to the arbitrator, file a motion with the court for an order directing the arbitrator to do so by a date certain. Late filing shall not invalidate the decision. Witness fees and other costs provided for by statute or court rule in superior court proceedings shall be payable upon entry of judgment in the same manner as if the hearing were held in court.


SUGGESTED AMENDMENT

MANDATORY ARBITRATION RULES (MAR)

Rule 7.1 - Request for Trial De Novo



(a) Service and Filing. Within 20 days after the arbitration award is filed with the clerk, any Any aggrieved party not having waived the right to appeal may serve and file with the clerk a written request for a trial de novo in the superior court along with proof that a copy has been served. Any request for a trial de novo must be filed with the clerk and served, in accordance with CR 5, upon all other parties appearing in the case. within 20 days after the arbitrator files proof of service of the later of: (1) the award or (2) a decision on a timely request for costs or attorney fees. A request for a trial de novo is timely filed or served if it is filed or served after the award is announced but before the 20-day period begins to run. The 20-day period within which to request a trial de novo may not be extended.

(b) Form. The request for a trial de novo shall not refer to the amount of the award, including any award of costs or attorney fees, and shall be in substantially in the form set forth below:

[Form unchanged.]

(c) Proof of Service. The party filing and serving the request for a trial de novo shall file proof of service with the court. Failure to file proof of service within the 20-day period shall not void the request for a trial de novo.

(bd) Calendar. When a trial de novo is requested as provided in section (a), the case shall be transferred from the arbitration calendar in accordance with rule 8.2 in a manner established by local rule.

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.


RULES OF PROFESSIONAL CONDUCT (RPC)

RULE 1.10. IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE



(a) Except as provided in paragraph (ce), while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

(b) - (d) [Unchanged.]

(e) When the prohibition on representation under paragraph (a) is based on Rule 1.9 (a) or (b), and arises out of the disqualified lawyer's association with a prior firm, a lawyer becomes associated with a firm, no other lawyer in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless:

(1) the personally disqualified lawyer is screened by effective means from participation in the matter and is apportioned no part of the fee therefrom;

(2) the former client of the personally disqualified lawyer receives notice of the conflict and the screening mechanism used to prohibit dissemination of information relating to the former representation;

(3) the firm is able to demonstrate by convincing evidence that no material information relating to the former representation was transmitted by the personally disqualified lawyer before implementation of the screening mechanism and notice to the former client.

Any presumption that information protected by Rules 1.6 and 1.9(c) has been or will be transmitted may be rebutted if the personally disqualified lawyer serves on his or her former law firm and former client an affidavit attesting that the personally disqualified lawyer will not participate in the matter and will not discuss the matter or the representation with any other lawyer or employee of his or her current law firm, and attesting that during the period of the lawyer's personal disqualification those lawyers or employees who do participate in the matter will be apprised that the personally disqualified lawyer is screened from participating in or discussing the matter. Such affidavit shall describe the procedures being used effectively to screen the personally disqualified lawyer. Upon request of the former client, such affidavit shall be updated periodically to show actual compliance with the screening procedures. The law firm, the personally disqualified lawyer, or the former client may seek judicial review in a court of general jurisdiction of the screening mechanism used, or may seek court supervision to ensure that implementation of the screening procedures has occurred and that effective actual compliance has been achieved.


Comment

[1] - [8] [Unchanged.]

[9] The screening provisions in Washington RPC 1.10 differ from those in the Model Rule. Washington's adoption of a nonconsensual screening provision in 1993 preceded the ABA's 2009 adoption of a similar approach in the Model Rules. Washington's rule was amended and the screening provision recodified as paragraph (e) in 2006, and paragraphs (a) and (e) were further amended in 20__ to conform more closely to the Model Rules version. None of the amendments to this Rule, however, represents a change in Washington law. The Rule preserves Washington practice established in 1993 with respect to screening by allowing a lawyer personally disqualified from representing a client based on the lawyer's prior association with a firm to be screened from a representation to be undertaken by other members of the lawyer's new firm under the circumstances set forth in paragraph (e). Former Washington RPC 1.10 differed significantly from the Model Rule. This difference was attributable in part to a 1989 amendment to Model Rule 1.10 that recodified conflicts based on a lawyer's former association with a firm into Model Rule 1.9, and in part to Washington's adoption of a screening rule in 1993. Washington's Rule has been restructured to make it and Rule 1.9 more consistent with the Model Rules. The conflicts that arise based on a lawyer's former association with a firm are now addressed in Rules 1.9 (a) and (b), while Rule 1.10 addresses solely imputation of that conflict. Under Rule 1.9(a), such a lawyer need not have actually acquired information protected by Rules 1.6 and 1.9 to be disqualified personally, but because acquisition of confidential information is presumed in Washington, see, e.g., Teja v. Saran, 68 Wn. App. 793, 846 P.2d 1375 (1993), review denied, 122 Wn.2d 1008, 859 P.2d 604 (1993); Kurbitz v. Kurbitz, 77 Wn.2d 943, 468 P.2d 673 (1970), the recodification does not represent a change in Washington law. The Rule preserves prior Washington practice with respect to screening by allowing a personally disqualified lawyer to be screened from a representation to be undertaken by other members of the firm under the circumstances set forth in paragraph (e). See Washington Comment [10].

[10] Washington's RPC 1.10 was amended in 1993 to permit representation with screening under certain circumstances. Model Rule 1.10 does not contain a screening mechanism. Rule 1.10(e) retains the screening mechanism adopted as Washington RPC 1.10(b) in 1993, thus allowing a firm to represent a client with whom a lawyer in the firm has a conflict based on his or her association with a prior firm if the lawyer is effectively screened from participation in the representation, is apportioned no part of the fee earned from the representation and the client of the former firm receives notice of the conflict and the screening mechanism. However, prior to undertaking the representation, non-disqualified firm members must evaluate the firm's ability to provide competent representation even if the disqualified member can be screened in accordance with this Rule. While Rule 1.10 does not specify the screening mechanism to be used, the law firm must be able to demonstrate that it is adequate to prevent the personally disqualified lawyer from receiving or transmitting any confidential information or from participating in the representation in any way. The screening mechanism must be in place over the life of the representation at issue and is subject to judicial review at the request of any of the affected clients, law firms, or lawyers. However, a lawyer or law firm may rebut the presumption that information relating to the representation has been transmitted by serving an affidavit describing the screening mechanism and affirming that the requirements of the Rule have been met.

[11] Under Rule 5.3, this Rule also applies to nonlawyer assistants and lawyers who previously worked as nonlawyers at a law firm. See Daines v. Alcatel, 194 F.R.D. 678 (E.D. Wash. 2000); Richards v. Jain, 168 F. Supp. 2d 1195 (W.D. Wash. 2001).

[12] - [13] [Unchanged.]

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 error in the above material occurred in the copy filed by the State Supreme Court and appears in the Register pursuant to the requirements of RCW 34.08.040.


RULES OF PROFESSIONAL CONDUCT (RPC)

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



(a) - (d) [Unchanged.]

(e) [Reserved.]

(f) A lawyer shall not purport to act as a lawyer for any person or organization if the lawyer knows or reasonably should know that the lawyer is acting without the authority of that person or organization, unless the lawyer is authorized or required to so act by law or a court order.


Comment


[1] - [13] [Unchanged.]

Additional Washington Comments (14-17)

Agreements Limiting Scope of Representation

[14] [Unchanged.]

Acting as a Lawyer Without Authority

[15] Paragraph (f) was taken from former Washington RPC 1.2(f), which was deleted from the RPC by amendment effective September 1, 2006. The mental state has been changed from "willfully" to one of knowledge or constructive knowledge. See Rule 1.0 (f) & (j). Although the language and structure of paragraph (f) differ from the former version in a number of other respects, paragraph (f) does not otherwise represent a change in Washington law interpreting former RPC 1.2(f).

[16] If a lawyer is unsure of the extent of his or her authority to represent a person because of that person's diminished capacity, paragraph (f) of this Rule does not prohibit the lawyer from taking action in accordance with Rule 1.14 to protect the person's interests. Protective action taken in conformity with Rule 1.14 does not constitute a violation of this Rule.

[17] Paragraph (f) does not prohibit a lawyer from taking any action permitted or required by these Rules, court rules, or other law when withdrawing from a representation, when terminated by a client, or when ordered to continue representation by a tribunal. See Rule 1.16(c).

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.


RULES OF PROFESSIONAL CONDUCT (RPC)

RULE 1.15A. SAFEGUARDING PROPERTY



(a) - (g) [Unchanged.]

(h) A lawyer must comply with the following for all trust accounts:

(1) - (6) [Unchanged.]

(7) A lawyer must not disburse funds from a trust account until deposits have cleared the banking process and been collected, unless the lawyer and the bank have a written agreement by which the lawyer personally guarantees all disbursements from deposits to the account without recourse to the trust account.

(8) - (9) [Unchanged.]

(i) [Unchanged.]


Comment


[1] - [20] [Unchanged.]

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.


RULES OF PROFESSIONAL CONDUCT (RPC)

RULE 1.6. CONFIDENTIALITY OF INFORMATION



(a) - (b) [Unchanged.]


Comment


[1] - [2] [Unchanged.]

[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

[4] - [26] [Unchanged]

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.


RULES OF PROFESSIONAL CONDUCT (RPC)

RULE 1.8. CONFLICT OF INTEREST: CURRENT CLIENT: SPECIFIC RULES



(a) - (f) [Unchanged.]

(g) A lawyer who represents two or more clients; shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, confirmed in writing. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and the participation of each person in the settlement.

(h) - (m) [Unchanged.]


Comment


[1] - [26] [Unchanged.]

[27] An indigent defense contract by which the contracting lawyer or law firm assumes the obligation to pay conflict counsel from the proceeds of the contract, without further payment from the governmental entity, creates an acute financial disincentive for the lawyer either to investigate or declare the existence of actual or potential conflicts of interest requiring the employment of conflict counsel. For this reason, such contracts involve an inherent conflict between the interests of the client and the personal interests of the lawyer. These dangers warrant a prohibition on making such an agreement or accepting compensation for the delivery of indigent defense services from a lawyer that has done so. See WSBA Informal Ethics Opinion No. 1647 (conflict of interest issues under RPC 1.7 and 1.9 exist in requiring public defender office to recognize a conflict and hire outside counsel out of its budget); ABA Standards for Criminal Justice, Std. 5-3.3(b)(vii) (3d ed. 1992) (elements of a contract for defense services should include "a policy for conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses"); People v. Barboza, 29 Cal.3d 375, 173 Cal. Rptr. 458, 627 P.2d 188 (Cal. 1981) (structuring public defense contract so that more money is available for operation of office if fewer outside attorneys are engaged creates "inherent and irreconcilable conflicts of interest").

[28] - [29] [Unchanged.]

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.


RULES OF PROFESSIONAL CONDUCT (RPC)

RULE 3.4. FAIRNESS TO OPPOSING PARTY AND COUNSEL



(a) - (f) [Unchanged.]


Comment

[1] - [4] [Unchanged.]

[5] Washington did not adopt Model Rule 3.4(f), which delineates circumstances in which a lawyer may request that a person other than a client refrain from voluntarily giving information to another party, because the Model Rule is inconsistent with Washington law. See Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1994 1984). Advising or requesting that a person other than a client refrain from voluntarily giving information to another party may violate other Rules. See, e.g., Rule 8.4(d).

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.


RULES OF PROFESSIONAL CONDUCT (RPC)

RULE 5.5. UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW



(a) - (e) [Unchanged.]


Comment

[1] - [6] [Unchanged.]

[7] Paragraphs (c) and (d) apply to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word "admitted" in paragraph (c) contemplates that the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status.

[8] - [22] [Unchanged.]

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.


Suggested Change to CrRLJ 6.13 EVIDENCE

[(a) - (d) No changes.]

(e) Certified Report of Department of Licensing Custodian

(1) Generally. A certified report from a Department of Licensing (DOL) custodian of records pertaining to a defendant's driving record(s) and a defendant's driving status on a particular date is admissible at any hearing or trial in lieu of testimony of a DOL custodian of records. The certified report shall have the same effect as if the records custodian had testified, if the report is in substantial compliance with the following certification:


CERTIFICATE OF DEPARTMENT OF LICENSING CUSTODIAN OF RECORD


I, do certify under penalty of perjury as follows:

I have been appointed by the Director of the Department of Licensing as a legal custodian of driving records of the State of Washington. I certify under penalty of perjury that such records are official and are maintained in the office of the Department of Licensing, Olympia, Washington.

All information contained in this report pertains to the driving record of:


Lic. # Birthdate:
Name: Eyes: ____ Sex ___
Hgt: ___ Wgt:_____
License Issued:___________
License Expires:___________

After a diligent search of the computer files, the official record indicates that on (date), the following statements apply to the status of the above named person:

The attached document(s) are a true and accurate copy of the document(s) maintained in the office of the Department of Licensing, Olympia, Washington.

(specify all documents attached to this affidavit)

Dated: ______________________

_______________________________

(name)

Custodian of Records

Place: Olympia, Washington

Date: _______________

(2) Exclusion of Test Reports: The court shall exclude the Certificate of Department of Licensing Custodian otherwise admissible under this section if:

(i) a copy of the certificate has not been served or mailed to the defendant's lawyer, if represented, at least 14 days prior to the trial or hearing date, or upon a showing of cause, such lesser time as the court deems proper, or

(ii) in the case of an unrepresented defendant, a copy of this rule in addition to a copy of the certificate has not been served or mailed to the defendant at least 14 days prior to the trial or hearing date or, upon a showing of cause, such lesser time as the court deems proper;

(iii) at least 7 days prior to the trial or hearing date, or, upon a showing of cause, such lesser time as the court deems proper, the defendant has served or mailed a written demand upon the prosecuting authority to produce a custodian of records from the Department of Licensing for trial or hearing.

(f) Continuance. The court at the time of trial shall hear testimony concerning the alleged offense and, if necessary, may continue the proceedings for the purpose of obtaining (1) the maintenance technician's presence for testimony concerning the working order of the Breathalyzer machine and the certification thereof, (2) evidence concerning the working order of the BAC Verifier Data Master instrument and the certification thereof, (3) evidence concerning the preparation of the BAC Verifier Data Master simulator solution and the certification thereof, or (4) evidence concerning an electronic speed measuring device or laser speed measuring device and the certification thereof, or (5) evidence concerning the certified report of the Department of Licensing. If, at the time it is supplied, the evidence is insufficient, a motion to suppress the results of such test or readings shall be granted.

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.

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.

Washington State Code Reviser's Office