WSR 17-12-078

RULES OF COURT

[June 1, 2017]

The Washington State Bar Association, having recommended the suggested amendments to RPC 1.6—Confidentiality of Information, RPC 7.3—Solicitation of Clients, and 8.4—Misconduct, and the Court having considered the amendments thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the suggested amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites expeditiously.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties. The purpose statement and suggested amendments shall be published in January 2018.

(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 April 30, 2018. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or supreme@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 1st day of June 2017.

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

Mark Fucile, Chair, WSBA Committee on Professional Ethics

Fucile & Reising LLP

800 NW 6th Ave Ste. 211

Portland, OR 97209-3783

Phone: 503.224.4895

Jeanne Marie Clavere

Professional Responsibility Counsel

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

Phone: 206.727.8298

The suggested amendments are technical corrections to the Rules of Professional Conduct following the Court's adoption of changes to the RPC on June 2, 2016, in response to the ABA Ethics 20/20 amendments to the ABA Model Rules.

1. RPC 1.6 (b)(6) and (7). The word "or" at the end of RPC 1.6 (b)(6) should be deleted and added to the end of RPC 1.6 (b)(7). Because the number of subparts in RPC 1.6(b) increased from seven to eight, the suggested change would reflect the correct placement of the connecting word "or" in the series.

2. RPC 7.3(b). The words "from a client" should be deleted from RPC 7.3(b) to remedy an inadvertent drafting error in the material submitted to the Court. As currently written, RPC 7.3(b) only applies to solicitations addressed to current clients, whereas the intention of the rule is to current clients or anyone else. Removing the words "from a client" would eliminate any possible confusion and misinterpretation. It would also make RPC 7.3(b) identical to Model Rule 7.3(b).

The proponent does not request a public hearing.

The proponent requests expedited consideration.

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

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

(1) – (5) Unchanged.

(6) may reveal information relating to the representation of a client to comply with a court order; or

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

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

(c) Unchanged.

(a) A lawyer shall not, directly or through a third person, by in-person, live telephone, or real-time electronic contact solicit professional employment from a possible client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) – (3) Unchanged.

(b) A lawyer shall not solicit professional employment from a client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if;

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress or harassment.

(c) – (d) Unchanged.

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

Mark Fucile, Chair, WSBA Committee on Professional Ethics

Fucile & Reising LLP

800 NW 6th Ave Ste. 211

Portland, OR 97209-3783

Phone: 503.224.4895

Jeanne Marie Clavere

Professional Responsibility Counsel

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

Phone: 206.727.8298

RPC 8.4 specifies professional misconduct for Washington lawyers if they commit or engage in certain types of prohibited conduct. The suggested amendments to (g) and (h) would add veterans and members of the military to the anti-discrimination and anti-prejudice provisions of the rule, which already includes sex, race, age, creed, religion, color, national origin, disability, sexual orientation, or marital status. The suggested amendment incorporates the language from the Washington Law Against Discrimination, RCW 49.60, which was amended in 2007 to add "honorably discharged veteran or military status" as a protected category. Amending RPC 8.4 (g) and (h) would make the Rules of Professional Conduct consistent with state law.

The proponent does not request a public hearing.

The proponent does not request expedited consideration.

It is professional misconduct for a lawyer to:

(a) - (f) [Unchanged.]

(g) commit a discriminatory act prohibited by state law on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, honorably discharged veteran or military status, or marital status, where the act of discrimination is committed in connection with the lawyer's professional activities. In addition, it is professional misconduct to commit a discriminatory act on the basis of sexual orientation if such an act would violate this Rule when committed on the basis of sex, race, age, creed, religion, color, national origin, disability, honorably discharged veteran or military status, or marital status. This Rule shall not limit the ability of a lawyer to accept, decline, or withdraw from the representation of a client in accordance with Rule 1.16;

(h) in representing a client, engage in conduct that is prejudicial to the administration of justice toward judges, lawyers, or LLLTs, other parties, witnesses, jurors, or court personnel or officers, that a reasonable person would interpret as manifesting prejudice or bias on the basis of sex, race, age, creed, religion, color, national origin, disability, sexual orientation, honorably discharged veteran or military status, or marital status. This Rule does not restrict a lawyer from representing a client by advancing material factual or legal issues or arguments.

(i) – (n) Unchanged