RULES OF COURT
| 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 | ) ) ) ) ) |
ORDER NO. 25700-A-871 |
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. |
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.