WSR 15-23-043

RULES OF COURT

[November 4, 2015]

The Washington State Bar Association, having recommended the Proposed Amendments to Rules of Professional Conduct (RPC) 1.0A—Terminology, 1.1—Competence, 1.2—Scope of Representation and Allocation, 1.4—Communication, 1.5—Fees, 1.6—Confidentiality of Information, 1.10—Imputation of Conflicts of Interest: General Rule, 1.14—Client with Diminished Capacity, 1.17—Sale of Law Practice, 1.18—Duties to Prospective Client, 4.4—Respect for Rights of Third Person, 5.3—Professional Independence of a Lawyer, 5.5—Unauthorized Practice of Law; Multijurisdictional Practice of Law, 6.5—Nonprofit and Court-Annexed Limited Legal Service Programs, 7.1—Communications Concerning a Lawyers Services, 7.2—Advertising, 7.3—Direct Contact with Prospective Clients, and 8.5—Disciplinary Authority; Choice of Law, and the Court having considered the amendments and comments submitted thereto;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed 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.

(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, 2016. 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 4th day of November, 2015.

William D. Hyslop, President

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

Jeanne Marie Clavere

Professional Responsibility Counsel

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

In 2013, the Supreme Court asked the WSBA to evaluate recent amendments to the ABA Model Rules of Professional Conduct (Model Rules) and to consider the amendments for possible adoption in Washington. These Model Rule amendments were adopted by the ABA House of Delegates in 2012 at the recommendation of the ABA Commission on Ethics 20/20 [hereinafter Ethics 20/20 amendments]. The WSBA referred the matter to the WSBA Committee on Professional Ethics (CPE). In March 2015, during the course of the CPE's work, the Court adopted changes to Washington's Rules of Professional Conduct (RPC) to harmonize the RPC with the recently adopted Rules of Professional Conduct for Limited License Legal Technician's (LLLT RPC). The CPE consequently revised its draft proposal to reconcile the newly amended RPC with the CPE's draft Ethics 20/20-based recommendations.

The suggested amendments being submitted to the Court, which take into account the 2015 LLLT-related amendments, are individually summarized below. In general, the WSBA recommends adoption of most of the ABA Ethics 20/20 amendments. A few modifications to the Ethics 20/20 amendments are suggested to conform to existing differences between Washington's RPC and the Model Rules (including differences arising from the 2015 LLLT-related amendments), and in a few instances the CPE has recommended language that it concluded was an improvement on the ABA Ethics 20/20 amendments to the Model Rules.

The proposed changes to this RPC and its comments are taken verbatim from the ABA Ethics 20/20 changes and are part of a larger project by Ethics 20/20 to more clearly embrace electronic communication in all its forms in the provisions that relate to communications in general.

Proposed new Comments [6] and [7] and a portion of former Comment [6] (now proposed new Comment [8]) are taken verbatim from the Ethics 20/20 amendments, with the exception of the addition of LLLTs to proposed new Comment [7]. It is proposed that LLLTs be added in the places shown to take account their advent in Washington. (Note that the phrase "law firm" which appears in Comment [7] has already been expanded in the Washington Terminology Section, RPC 1.0A(c) to encompass LLLT firms.) The proposed additions are intended, in general, to deal with the phenomenon of "outsourcing" work by lawyers and are intended to clarify how the duty of competence interrelates to such practices.

Proposed new Washington Comment [9] is intended to clarify an issue that surfaces when proposed new Comments [6] and [7] are considered carefully. If a lawyer engages the services of a lawyer to provide what are essentially nonlegal services that might be provided by nonlawyers, the CPE concluded that the fact that the engaged person is a lawyer should not bring that lawyer within the scope of this and other rules applicable to lawyers when they are practicing law, but that person's conduct should, instead, be governed by RPC 5.3, as would that of a nonlawyer. The point is of increasing importance as lawyers who are not licensed in Washington may be engaged to provide services that would not constitute the practice of law so long as they are properly supervised by a licensed lawyer. A proposed new sentence suggested for Comment [3] to RPC 5.3 makes this same point. This comment is not based on the Ethics 20/20 amendments.

To make room for these three comments, current Washington Comment [7], which was adopted as part of 2015 RPC amendments, needs to be renumbered as Washington Comment [10].

This proposed amendment adds a "See also" sentence at the end of Comment [1] to RPC 1.2 because Comments [6] and [10] to RPC 1.1 refer and relate to RPC 1.2. If adopted, this would require designating this comment as a "Washington revision." It is proposed to add LLLTs to the cross reference here because they have been added to Comments [7] and [10]. This change is not based on Ethics 20/20 amendments.

This proposed amendment adds a "See also" sentence at the end of Comment [2] to RPC 1.4 because Comments [6] and [10] to RPC 1.1 refer and/or relate to RPC 1.4. If adopted, this would require designating this comment as a "Washington Revision". It is proposed to add LLLTs to the cross reference here because they have been added to Comments [7] & [10]. This change is not based on Ethics 20/20 amendments.

The proposed addition to Comment [4] is taken verbatim from the ABA Ethics 20/20 changes and is simply intended to make clear that the duty a lawyer has to respond to client inquiries extends beyond use of the telephone.

This proposed amendments adds a "See also" sentence at the end of Comment [7] to RPC 1.5 because Comments [6] and [10] to RPC 1.1 refer and/or relate to RPC 1.5. It is proposed to add LLLTs to the cross reference here because they have been added to Comment [10]. This change is not based on Ethics 20/20 amendments.

The proposed addition of new paragraph (7) to RPC 1.6(b) – disclosure of confidences to engage in conflicts screening – is taken verbatim from the Ethics 20/20 amendments, which codify an earlier ABA Ethics Opinion that found such an exception implicit in Model Rule 1.6. In order to maintain maximum structural similarity to the ABA Model Rules and its numbering system, it is suggested that the addition of this new provision be accomplished by renumbering Washington's current paragraph (b)(7), which is not in the Model Rules, as paragraph (b)(8).

The proposed addition of new paragraph (c) to RPC 1.6 – requiring "reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidences" – is taken verbatim from Ethics 20/20 amendments and seems useful as a codification of the general state of the law.

Proposed new Comments [13] and [14], the additions to existing comment [16] (which would be renumbered as Comment [18]), and the addition at the end of existing Comment [17] (which would be renumbered Comment [19]), are all taken verbatim from the ABA Ethics 20/20 amendments, with the exception of the "see also" sentence at the end of proposed new Comment [13]. These comments are designed to elaborate on the proposed new RPC 1.6 (b)(7) (conflict screening) and (c) (reasonable efforts), and the CPE concluded that they did not require revision except for the "see also" cross-reference at the end of Comment [13].

If the CPE recommendation to renumber current comment [3] to RPC 5.3 (as Comment [5]) is accepted, then the cross reference to this comment in RPC 1.10 at the end of Comment [11] will need to be conformed.

If the CPE recommendation to renumber current RPC 1.6 (b)(7) as 1.6 (b)(8) is adopted, the cross reference to 1.6 (b)(7) in current Comment [4] to RPC 1.14 requires a conforming amendment.

Several very minor modifications to Comment [7] have been taken verbatim from the Ethics 20/20 amendments, but the CPE concluded that the cross reference (in the sentence beginning "But see") to proposed new RPC 1.6 (b)(7) (relating to conflicts screening) should be moved and expanded slightly here to assist the reader. The ABA version simply says "See Rule 1.6 (b)(7)" and places the cross reference at the end of the prior sentence.

Washington's RPC 1.18(e) codifies Model Rule 1.18, Comment [5], where the word "conversation" was replaced with the word "consultation" as recommended in the Ethics 20/20 report. The CPE recommends this change in Washington's RPC 1.18(e) in order to take advantage of the interpretive language that has been added to ABA Comments [1], [2], and [4] to Model Rule 1.18. It is recommended that the revisions to these comments be adopted in Washington as well.

The ABA has substantially amplified Comment [2] in order to spell out what it takes to become a prospective client for purposes of Rule 1.18. It is recommended that this amplification be adopted verbatim, except the ABA term "advertising" is replaced with the word "communications." This change to the ABA version is recommended because of the increasing use of social media and a lack of clarity as to whether such platforms involve "advertising." Regardless of whether such communications would normally be considered advertising, if they are used to invite or request the submission of confidential information, they are within the scope of what the comment is seeking to address. So "communications" seems more appropriate here.

The ABA has made a minor change to Rule 4.4(b) to include electronic information, and it is recommended that this change be adopted in Washington. The ABA has also amended Comments [2] and [3] to include electronic information and, in Comment [2], has explained what it means for a communication to be inadvertently sent and what metadata is. It is recommended that these changes be adopted verbatim.

The ABA has retained former Comment [1] unchanged but moved it (and the heading) down to make it Comment [2]. Former Comment [2] (now ABA comment [1]), has been amplified to make it clearer. It is recommended that all these changes be adopted.

The ABA has adopted two new comments to this Rule, Comments [3] and [4]. Comment [3] explains when it might be appropriate for a lawyer to associate with nonlawyers from outside the firm and explains what a lawyer's supervision duties are. Comment [4] explains what the lawyer's responsibilities are vis-à-vis the client when such a nonlawyer is engaged. It is recommended that these new comments be adopted verbatim, but with the addition of a sentence at the end of proposed Comment [3] (not found in the ABA Model Rules) referencing proposed Washington Comment [9] to RPC 1.1 (also not found in the Model Rules) to coincide with the point explained in the proposed Comment to Rule 1.1 relating to use of outside lawyers to provide nonlegal services. This change would require re-designating this as a "Washington Revision."

The Court has recently adopted a new Washington Comment [3] to Rule 5.3 to the effect that a lawyer's supervision duties with respect to an LLLT are governed by Washington RPC 5.10, rather than by RPC 5.3. This comment will need to be renumbered as Comment [5] to account for the incorporation of Model Rule Comments [3] and [4], as proposed. It is recommended that the phrase "acting as such" and additional content and cross references be adopted in renumbered Comment [5], to reinforce the distinction between conduct that requires a license and conduct which does not require that license. It also reinforces the distinction now proposed to be made in Comment [9] to Rule 1.1 between a lawyer engaged in conduct requiring the lawyer's license, and a lawyer engaged in conduct that does not (i.e., delivery of "nonlegal services").

The ABA has added language to Model Rule 5.5(d) (in house counsel and practice permitted by federal law) which adds "foreign lawyers" to the scope of the rule. It is recommended that these amendments be adopted verbatim. But other Model Rule amendments required several changes and some reorganization in order to reconcile new Model Rule 5.5 with the changes previously made to this rule in Washington, particularly as they relate to practice by in-house counsel not generally licensed in Washington. The differences between Model Rule 5.5(d) and Washington's RPC 5.5(d) are complex. In brief, the explanation for the departure from the Model Rule approach is as follows.

First, the Ethics 20/20 amendments added language to Model Rule 5.5(d) and a new 5.5(e) to include foreign lawyers within the scope of the rule. The ABA Model Rule additions are underlined below, and the deletions are stricken out:

(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:

(1) are provided to the lawyer's employer or its organizational affiliates and are (i) provided on a temporary basis and (ii) not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on the law of this or another jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

(2) are services that the lawyer is authorized to provide by federal law or other law or rule to provide in of this jurisdiction.

The language amplifying the rule to embrace foreign lawyers is recommended for adoption, but excluding the Model Rule language "through an office or other systematic and continuous presence" because it would conflict with the "temporary" practice limitation applicable to "house counsel" in Washington. Washington makes the house-counsel exception for practice without a Washington license available only on a temporary basis, whereas the Model Rules exception authorizes a continuous and systematic presence by non-licensed house counsel (subject to possible registration requirements imposed by state law). Accordingly, the ABA language has been modified to preserve Washington's different treatment of house counsel.

Several Ethics 20/20 amendments to the Model Rule 5.5 comments (which conform them to the addition of "foreign lawyers" to Model 5.5(d)), are also recommended. But again, the Ethics 20/20 amendments are not completely consistent with Washington's version of RPC 5.5 (d)(1). Accordingly the suggested comments are modified from the Model Rules in order to reconcile them with Washington's different treatment of in-house counsel.

It is recommended that the reference to paragraph (d)(1) in current Washington Comment [5] be stricken to coincide with Washington's temporary practice limitation, and the language at the end of the comment has been added to coincide with the special Washington limited license for in-house counsel provided for in Admission and Practice Rule (APR) 8(f). These two changes are recommended to conform the RPC commentary with Washington's APR and are not occasioned by the Ethics 20/20 amendments.

In Comment [8], a reference has been added to proposed new Comment [6] to RPC 1.1, which addresses a lawyer's duties when associating with a lawyer outside the firm (and which cross references Rule 5.5). If adopted, this would be a Washington Revision to the comment.

The Ethics 20/20 amendments to Comment [15] added a reference to the ABA Model Rule on Temporary Practice by Foreign Lawyers. This reference is not recommended for adoption in Washington since Washington has not adopted that Model Rule.

Other Ethics 20/20 amendments to Comment [15] are also inconsistent with Washington's version of Rule 5.5 and the APR. The recommended amendments do include some of the Ethics 20/20 language (specifically, the addition of "or a foreign," "or the equivalent thereof," and "United States or foreign"). Beyond that, however, the amendments being proposed rearrange the existing comment so that it first addresses Washington's "temporary" practice exception (paragraph (d)(1)) and then addresses the "federal practice" exception (paragraph (d)(2)). The word "another" is used in the first line because the preceding comments explore unrelated temporary practice exceptions set out in Rule 5.5(c). The phrase "such a lawyer" is introduced in the second sentence of the comment to avoid repeating the lengthier text that precedes it: "a lawyer who is admitted to practice in another United States or a foreign jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, or the equivalent thereof."

The Ethics 20/20 amendments to Comment [16] added language dealing with the use of foreign lawyers as house counsel and the need to ensure that when the issue is one of U.S. domestic law, any advice should be based on the advice of a domestic lawyer. It is recommended that this amendment be adopted verbatim.

The Ethics 20/20 amendments to Comment [17] added a reference to the ABA Model Rule for Registration of In-House Counsel. It is recommended that this reference not be adopted in Washington because Washington has not adopted that Model Rule.

The Ethics 20/20 amendments to Comment [18] added a reference to the ABA Model Rule on Practice Pending Admission. It is recommended that this reference not be adopted in Washington because Washington has not adopted that Model Rule.

If the proposal to renumber the comments to RPC 1.6 is adopted, the cross reference in Comment [7] to this rule needs to be amended from "Comment [19]" to "Comment [21]."

Consistent with the Ethics 20/20 amendments, it is recommended that the words "a prospective client" be replaced with the words "the public" at the end of Comment [3]. Rule 7.1 embraces all communications by a lawyer about his or her services, not just communications to prospective clients.

The Ethics 20/20 amendments added language to the comments to Model Rule 7.2 (Advertising), particularly to Comments [3] and [5], to add clarity and clearly encompass electronic communications and the internet. In general, these changes are recommended for adoption in Washington, but subject to a number of departures from the ABA approach.

First, at the end of Comment [3], this proposal adds the words "of a possible client" to conform to recommendations regarding RPC 7.3, explained below.

Second, the Ethics 20/20 amendments included minor revisions at the end of Comment [6] to Model Rule 7.2, but Washington previously deleted the Model Rule language in which these Ethics 20/20 changes are embedded. Accordingly, it is not recommend that these revisions be adopted.

The Ethics 20/20 amendments deleted the phrase "from a prospective client" previously appearing in paragraph (a) and (b) of Model Rule 7.3. This was apparently done to avoid confusion about the phrase "prospective client," which is separately defined in Model Rule 1.18 (and Washington RPC 1.18). Although opinion on the issue was divided, the WSBA CPE concluded that the RPC 7.3(a) prohibition on direct solicitation should be limited to a potential client. Without such a limitation, the rule could be interpreted to unnecessarily preclude a lawyer from engaging in in-person conversations with friends, relatives or other professionals (at a Rotary meeting, for example) who in turn might have friends, relatives, clients or patients who may be in need of a lawyer's services. Communication through an intermediary in this fashion is thought to be sufficient to protect potential clients from lawyer overreaching. Such solicitation is not what is meant by solicitation "through a third person," and the lawyer would still be prohibited from using an agent, whether another professional or other person, to engage in in-person solicitation. By contrast, there appears to be no reason to prohibit a lawyer from personally asking another person if he or she has a friend, relative, client or patient who might benefit from the lawyer's services, thus enabling the lawyer to send the potential client a permitted targeted written communication. To avoid confusion with the defined phrase "prospective client" but still retain the idea, the new phrase "possible client" is proposed. Inclusion of the word "possible" is not necessary in RPC 7.3(b) because any time a target of solicitation has made known his/her desire not to be solicited, or the solicitation involves coercion, duress or harassment, it should be prohibited, regardless of the identity or role of the individual. A new Washington Comment [14] is proposed that will explain this departure from the Model Rule comment. Apart from this modification, the remainder of the changes are taken verbatim from the Ethics 20/20 amendments, which are recommended for adoption in Washington.

The Ethics 20/20 amendments added a new Comment [1] to the Model Rule defining what a solicitation is, and has added clarifying language to former Comments [1] – [6], which were renumbered as Comments [2] – [7]. It is recommended that all these Model Rule revisions be adopted verbatim in Washington.

Consistent with the proposed revision to paragraph (a) of the rule, explained above, new Washington Comment [14] is proposed to explain the replacement of the words "prospective client" with the words "possible client" and elaborate on the ways in which a "possible client" may permissibly be solicited.

The Ethics 20/20 amendments clarified Comment [5] to Model Rule 8.5, which deals with choice of law issues when applying the Rules of Professional Conduct. The amended Model Rule language makes relevant an agreement between the lawyer and the client that specifies a particular jurisdiction as the one in which the predominant effect of the lawyer's conduct will occur. It is recommended that this language be adopted verbatim in Washington. In general, choice of law is a matter subject to agreement between parties to a contract, and making clear that such an agreement is relevant the legal ethics context seems reasonable.

In seeking to reconcile the ABA Ethics 20/20 amendments with the 2015 LLLT-related amendments to Washington's RPC,1 the CPE came upon issues that it wants to call to the attention of the Board of Governors, the LLLT Board, and the Court. These issues relate to the ethically appropriate method of structuring fee contracts when an LLLT is an employee or partner of the lawyer, and the circumstances under which a lawyer may associate with an LLLT who is not an employee of the lawyer's firm.

1Those amendments were adopted by order dated March 23, 2015, with an effective date of April 14, 2015 (the date of publication). Under the Court's March 23 order, the WSBA is currently gathering feedback on those amendments, which will be provided to the Court nine months after the rules' effective date.

First, APR 28.G.3 currently states that "[p]rior to the performance of the services for a fee, the Limited License Legal Technician shall enter into a written contract with the client, signed by both the client and the Limited License Legal Technician…." (It goes on to specify what must be contained in the contract.) The CPE is unclear how this requirement is supposed to operate when an LLLT is employed by a lawyer. Must the LLLT expressly contract with the lawyer's client before the employed LLLT may do LLLT-licensed work for the client? Or is it enough if the lawyer contracts with the client and delegates certain matters to the LLLT who is employed? Assuming the possibility of employed LLLTs doing LLLT-licensed work for the client is disclosed in a written lawyer-client contract, the CPE thinks the latter should suffice, but it does not seem consistent with APR 28.G.3. See also RPC 1.5, Comment [17], which suggests that where an LLLT works in a firm including both lawyers and LLLTs, fee agreements must comport with APR 28.G.3. Arguably, given APR 28.G.3, the only work an LLLT could perform for the lawyer's client without expressly contracting with the client would be to provide nonlawyer services for the client for which the LLLT license is not required. This seems to make the employment of LLLTs by lawyers exceedingly complicated and overly restrictive, and the CPE hopes that the LLLT Board and the Court will reexamine and clarify this issue.

Second, under what circumstances may a lawyer engage the services of an LLLT who is not in the same firm as the lawyer? Following the 2015 LLLT-related RPC amendments, Comment [7] to RPC 1.1 provides that "a lawyer may enlist the assistance of an LLLT who is not in the same firm only (1) after consultation with the client in accordance with Rules 1.2 and 1.4 and (2) by referring the client directly to the LLLT." (Note that that in this GR 9 submission Comment [7] is proposed to be renumbered as Comment [10] to account for the insertion of several new comments.) This sentence seems to preclude a lawyer from engaging an LLLT as an independent contractor to provide LLLT services to the client unless and until the LLLT has separately contracted with the client. Again, that seems dictated by APR 28.G.3. But, in the view of the CPE, it is unclear whether this was intended and whether it is necessary. If a lawyer hires another lawyer as an independent contractor to work on a matter or a series of matters, then it appears the rules do not require the independent-contractor lawyer to contract separately with each client. If that is not required of a lawyer, why should it be required of an LLLT? Why should it not suffice, where an LLLT is hired (or engaged as an independent contractor) by a lawyer to work on client matters, if the lawyer has a written contract with the client which addresses the possible use of LLLTs with the appropriate disclosures as to the scope of an LLLT's services and the fees to be charged for the LLLT's time – i.e., complying with the contract-content requirements of APR 28.G.3? To be sure, part of the problem is that lawyers (unlike LLLTs) are not required to have written agreements with clients in most circumstances. But so long as a lawyer hiring or retaining an LLLT does have a written fee agreement with the client that conforms with the content requirements set out in APR 28.G.3., it is unclear why the LLLT must separately contract with the client. The CPE hopes that the LLLT Board and the Court will reexamine this issue and adopt revisions or clarifications that make the LLLT-lawyer interface more straightforward and less of a potential trap for unwary lawyers and/or LLLTs.

Until this is done, however, it appears to the CPE that when a lawyer has hired an LLLT, but the LLLT has not complied with the contracting requirement of APR 28.G.3, the LLLT will be permitted only to do things that do not require the LLLT license (e.g., paralegal work).

The proponent does not request a public hearing.

The proponent does not request expedited consideration.

(a) – (m) [Unchanged.]

(n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail electronic communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

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[9] [Washington revision] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer or LLLT remains protected. The personally disqualified lawyer or LLLT should acknowledge the obligation not to communicate with any of the other lawyers or LLLTs in the firm with respect to the matter. Similarly, other lawyers or LLLTs in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer or LLLT with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers or LLLTs of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer or LLLT to avoid any communication with other firm personnel and any contact with any firm files or other materials information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer or LLLT relating to the matter, denial of access by the screened lawyer or LLLT to firm files or other materials information, including information in electronic form, relating to the matter and periodic reminders of the screen to the screened lawyer or LLLT and all other firm personnel.

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

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[68] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Additional Washington Comments [79-10)

[710] In some circumstances, a lawyer can also provide adequate representation by enlisting the assistance of an LLLT of established competence, within the scope of the LLLT's license and consistent with the provisions of the LLLT RPC. However, a lawyer may not enter into an arrangement for the division of the fee with an LLLT who is not in the same firm as the lawyer. See Comment [7] to Rule 1.5(e); LLLT RPC 1.5(e). Therefore, a lawyer may enlist the assistance of an LLLT who is not in the same firm only (1) after consultation with the client in accordance with Rules 1.2 and 1.4, and (2) by referring the client directly to the LLLT.

(a) - (f) [Unchanged.]

[1] [Washington revision] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4 (a)(1) for the lawyer's duty to communicate with the client about such decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer shall consult with the client as required by Rule 1.4 (a)(2) and may take such action as is impliedly authorized to carry out the representation. See also Rule 1.1, comments [6] and [10] as to decisions to associate other lawyers or LLLTs.

(a) - (b) [Unchanged.]

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[2] [Washington revision] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from an opposing lawyer an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer. See Rule 1.2(a). See also Rule 1.1, comments [6] and [10] as to decisions to associate other lawyers or LLLTs.

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[4] A lawyer's regular communication with clients will minimize the occasions on which a client will need to request information concerning the representation. When a client makes a reasonable request for information, however, paragraph (a)(4) requires prompt compliance with the request, or if a prompt response is not feasible, that the lawyer, or a member of the lawyer's staff, acknowledge receipt of the request and advise the client when a response may be expected. Client telephone calls should be promptly returned or acknowledged. A lawyer should promptly respond to or acknowledge client communications.

(a) - (f) [Unchanged.]

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[7] [Washington revision] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement, including the share that each lawyer is to receive, and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1. See also Rule 1.1, comments [6] and [10] as to decisions to associate other lawyers or LLLTs. See also Washington Comment [18].

(a) [Unchanged.]

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

(1) - (6) [Unchanged.]

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

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[1315]

[1416]

[1517]

[1816] Paragraph (c) requires a A lawyer must to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer's efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer's ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client's information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer's duties when sharing information with nonlawyers outside the lawyer's own firm, see Rule 5.3, Comments [3]-[4].

[1917] When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this Rule. Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.

[2018]

Additional Washington Comments (19-2621-28)

[2119]

[2220]

[2321]

[2422]

[2523]

[2624]

[2725]

[2826]

(a) - (f) [Unchanged.]

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Additional Washington Comments (9 - 14)

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[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). For the definition of nonlawyer for the purposes of Rule 5.3, see Washington Comment [35] to Rule 5.3.

(a) - (c) [Unchanged.]

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[4] [Washington revision] If a legal representative has already been appointed for the client, the lawyer should ordinarily look to the representative for decisions on behalf of the client. In matters involving a minor, whether the lawyer should look to the parents as natural guardians may depend on the type of proceeding or matter in which the lawyer is representing the minor. If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is acting adversely to the ward's interest, the lawyer may have an obligation to prevent or rectify the guardian's misconduct. See Rules 1.2(d) and 1.6 (b)(78).

A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied:

(a) - (d) [Unchanged.]

[7] [Washington revision] Negotiations between seller and prospective purchaser prior to disclosure of information relating to a specific representation of an identifiable client no more violate the confidentiality provisions of Rule 1.6 than do preliminary discussions concerning the possible association of another lawyer or mergers between firms, with respect to which client consent is not required. Providing the purchaser access to detailed client-specific information relating to the representation, such as the client's file, and to the file, however, requires client consent. But see Rule 1.6 (b)(7) (permitting disclosure of information relating to the representation in limited circumstances to detect and resolve potential conflicts of interest). The Rule provides that before such information can be disclosed by the seller to the purchaser the client must be given actual written notice of the contemplated sale, including the identity of the purchaser, and must be told that the decision to consent or make other arrangements must be made within 90 days. If nothing is heard from the client within that time, consent to the sale is presumed.

(a) A person who consults discusses with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from had discussions with a prospective client shall not use or reveal that information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client or except as provided in paragraph (e).

(c) - (d) [Unchanged.]

(e) A lawyer may condition conversations a consultation with a prospective client on the person's informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. The prospective client may also expressly consent to the lawyer's subsequent use of information received from the prospective client.

[1] Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice. A lawyer's consultations discussions with a prospective client usually are limited in time and depth and leave both the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.

[2] [Washington revision] Not all persons who communicate information to a lawyer are entitled to protection under this Rule. A person becomes a prospective client by consulting with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances. For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer's communications in any medium, specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer's obligations, and a person provides information in response. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to a communication that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person A person who communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a "prospective client." within the meaning of paragraph (a). Moreover, a person who communicates with a lawyer for the purpose of disqualifying the lawyer is not a "prospective client." See also Washington Comment [10].

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[4] In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial consultation interview to only such information as reasonably appears necessary for that purpose. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under Rule 1.7, then consent from all affected present or former clients must be obtained before accepting the representation.

(a) [Unchanged.]

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

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[2] Paragraph (b) recognizes that lawyers sometimes receive a documents or electronically stored information that was were mistakenly sent or produced by opposing parties or their lawyers. A document or electronically stored information is inadvertently sent when it is accidentally transmitted, such as when an email or letter is misaddressed or a document or electronically stored information is accidentally included with information that was intentionally transmitted. If a lawyer knows or reasonably should know that such a document or electronically stored information was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document or electronically stored information, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document or electronically stored information has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document or electronically stored information that the lawyer knows or reasonably should know may have been wrongfully inappropriately obtained by the sending person. For purposes of this Rule, "document or electronically stored information" includes in addition to paper documents, email and other forms of electronically stored information, including embedded data (commonly referred to as "metadata"), that is e-mail or other electronic modes of transmission subject to being read or put into readable form. Metadata in electronic documents creates an obligation under this Rule only if the receiving lawyer knows or reasonably should know that the metadata was inadvertently sent to the receiving lawyer.

[3] Some lawyers may choose to return a document or delete electronically stored information unread, for example, when the lawyer learns before receiving it the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document or delete electronically stored information is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) - (c) [Unchanged.]

[12] Paragraph (a) requires lawyers with managerial authority within a law firm to make reasonable efforts to ensure that the firm has in effect measures giving to establish internal policies and procedures designed to provide reasonable assurance that nonlawyers in the firm and nonlawyers outside the firm who work on firm matters will act in a way compatible with the professional obligations of the lawyer Rules of Professional Conduct. See Comment [6] to Rule 1.1 (retaining lawyers outside the firm) and Comment [1] to Rule 5.1 (responsibilities with respect to lawyers within a firm). Paragraph (b) applies to lawyers who have supervisory authority over such nonlawyers within or outside the firm. the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for the conduct of such nonlawyers within or outside the firm a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.

[21] Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer's professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.

Additional Washington Comment (53)

[5] [3] A nonlawyer for purpose of this Rule denotes an individual other than a lawyer or an LLLT acting as such. For responsibilities regarding an LLLT associated with a lawyer, see Rule 5.10. If a lawyer or an LLLT in a firm is providing services that do not require use of the lawyer's or the LLLT's license, then lawyers at the firm should treat such a lawyer or LLLT as a nonlawyer assistant under this Rule rather than as a subordinate lawyer under Rule 5.1 or as an LLLT under Rule 5.10. See also Additional Washington Comment [9] to Rule 1.1.

(a) - (c) [Unchanged.]

(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services in this jurisdiction that:

(1) are provided to the lawyer's employer or its organizational affiliates and are (i) provided on a temporary basis and (ii) not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on the law of this or another jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

(2) are services that the lawyer is authorized to provide by federal law or other law or rule to provide in of this jurisdiction.

[1] A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Paragraph (a) applies to unauthorized practice of law by a lawyer, whether through the lawyer's direct action or by the lawyer assisting another person. For example, a lawyer may not assist a person in practicing law in violation of the rules governing professional conduct in that person's jurisdiction.

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[5] There are occasions in which a lawyer admitted to practice in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies four such circumstances. The fact that conduct is not so identified does not imply that the conduct is or is not authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does not authorize a U.S. or foreign lawyer to establish an office or other systematic and continuous presence in this jurisdiction without being admitted to practice generally or as house counsel under APR 8(f) here.

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[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. Paragraph (d) also applies to lawyers admitted in a foreign jurisdiction. The word "admitted" in paragraphs (c), (d) and (e) 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] [Washington revision] Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in this jurisdiction. For this paragraph to apply, however, the lawyer admitted to practice in this jurisdiction must actively participate in and share responsibility for the representation of the client. See also Rule 1.1, comment [6].

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[15] [Washington revision] Paragraph (d)(1) identifies one another circumstance in which a lawyer who is admitted to practice in another United States or a foreign jurisdiction, and is not disbarred or suspended from practice in any jurisdiction, or the equivalent thereof, may provide legal services on a temporary basis i.e. as "in-house counsel" for an employer. Paragraph (d)(2) identifies a circumstance in which such a lawyer may establish an office or other systematic and continuous presence in this jurisdiction for the practice of law. as well as provide legal services on a temporary basis. Except as provided in paragraph (d)(2), a lawyer who is admitted to practice law in another United States or foreign jurisdiction and who establishes an office or other systematic or continuous presence in this jurisdiction must become admitted to practice law generally in this jurisdiction or as house counsel under APR 8(f). The Washington version of this comment has been amended to take account of the requirement that in-house counsel wishing to engage in non-temporary practice in Washington must either be generally admitted to practice under Admission and Practice Rule 3 or obtain a limited license to practice law as in-house counsel under Admission and Practice Rule 8(f).

[16] Paragraph (d)(1) applies to a U.S. or foreign lawyer who is employed by a client to provide legal services to the client or its organizational affiliates, i.e., entities that control, are controlled by, or are under common control with the employer. This paragraph does not authorize the provision of personal legal services to the employer's officers or employees. The paragraph applies to in-house corporate lawyers, government lawyers and others who are employed to render legal services to the employer. The lawyer's ability to represent the employer outside the jurisdiction in which the lawyer is licensed generally serves the interests of the employer and does not create an unreasonable risk to the client and others because the employer is well situated to assess the lawyer's qualifications and the quality of the lawyer's work. To further decrease any risk to the client, when advising on the domestic law of a United States jurisdiction or on the law of the United States, the foreign lawyer authorized to practice under paragraph (d)(1) of this Rule needs to base that advice on the advice of a lawyer licensed and authorized by the jurisdiction to provide it.

[17] [Washington revision] In Washington, paragraph (d)(1) applies to lawyers who are providing the services on a temporary basis only. If an employed lawyer establishes an office or other systematic presence in this jurisdiction for the purpose of rendering legal services to the employer, the lawyer must seek general admission under APR 3 or house counsel admission under APR 8(f).

[18] Paragraph (d)(2) recognizes that a U.S. or foreign lawyer may provide legal services in a jurisdiction in which the lawyer is not licensed when authorized to do so by federal or other law, which includes statute, court rule, executive regulation or judicial precedent.

Additional Washington Comments (6 - 7)

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[7] Paragraph (a)(3) was taken from former Washington RPC 6.5 (a)(3) as enacted in 2002. The replacement of "confidences and secrets" in paragraph (a)(3) with "information relating to the representation" was necessary to conform the language of the Rule to a terminology change in Rule 1.6. No substantive change is intended. See Comment [1921] to Rule 1.6.

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material nisrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

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[3] An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case. Similarly, an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public a prospective client.

(a) - (c) [Unchanged.]

[1] To assist the public in learning about and obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele. However, the public's need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are misleading or overreaching.

[2] This Rule permits public dissemination of information concerning a lawyer's name or firm name, address, email address, website, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.

[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television and other forms of advertising, against advertising going beyond specified facts about a lawyer, or against "undignified" advertising. Television, the Internet, and other forms of electronic communication are is now among one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television, Internet, and other forms of electronic advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant. Similarly, electronic media, such as the Internet, can be an important source of information about legal services, and lawful communication by electronic mail is permitted by this Rule. But see Rule 7.3(a) for the prohibition against the a solicitation of a prospective possible client through a real-time electronic exchange initiated by the lawyer that is not initiated by the prospective client.

[4] Neither this Rule nor Rule 7.3 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

[5] [Washington revision] Except as permitted under paragraphs (b)(1)-(b)(4), lLawyers are not permitted to pay others for recommending the lawyer's services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities. Paragraph (b)(1), however, allows a lawyer to pay for advertising and communications permitted by this Rule, including the costs of print directory listings, on-line directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, banner ads, Internet-based advertisements, and group advertising. A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client-development services, such as publicists, public-relations personnel, business-development staff and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator's communications are consistent with Rule 7.1 (communications concerning a lawyer's services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person's legal problems when determining which lawyer should receive the referral. See also Rule 5.3 for the (duties of lawyers and law firms with respect to the conduct of nonlawyers who prepare marketing materials for them); Rule 8.4(a) (duty to avoid violating the Rules through the acts of another). For the definition of nonlawyer for the purposes of Rule 5.3, see Washington Comment [3] [5] to Rule 5.3.

[6] [Washington revision] A lawyer may pay the usual charges of a legal service plan or a not-for-profit lawyer referral service. A legal service plan is a prepaid or group legal service plan or a similar delivery system that assists people who seek prospective clients to secure legal representation. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such referral services are understood by the public laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit lawyer referral service.

[7] A lawyer who accepts assignments or referrals from a legal service plan or referrals from a lawyer referral service must act reasonably to assure that the activities of the plan or service are compatible with the lawyer's professional obligations. See Rule 5.3. Legal service plans and lawyer referral services may communicate with the public prospective clients, but such communication must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead the public prospective clients to think that it was a lawyer referral service sponsored by a state agency or bar association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.

(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 prospective possible client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer; or an LLLT or

(2) has a family, close personal, or prior professional relationship with the lawyer.; or

(3) has consented to the contact by requesting a referral from a not-for-profit lawyer referral service.

(b) A lawyer shall not solicit professional employment from a prospective 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 prospective client 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.]

[21] There is a potential for abuse when a solicitation involves inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with someone a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject a person the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The person prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

[32] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since lawyers have advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. In particular, Advertising and written and recorded communications can which may be mailed or autodialed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations make it possible for the public a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm a person's the client's judgment.

[43] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to the public prospective client, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in-person, live telephone or real-time electronic contact conversations between a lawyer and a prospective client can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

[54] [Washington revision] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or a person with whom the lawyer has close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer or an LLLT. Consequently, the general prohibition in Rule 7.3(a) is not applicable in those situations. Also, paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.

[65] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3 (b)(2), or which involves contact with someone a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3 (b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the recipient of the communication prospective client may violate the provisions of Rule 7.3(b).

[76] This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to people who are seeking legal services for themselves. a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.

[87]

[98]

Additional Washington Comments (910 – 1214)

(a) - (c) [Unchanged.]

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[5] When a lawyer's conduct involves significant contacts with more than one jurisdiction, it may not be clear whether the predominant effect of the lawyer's conduct will occur in a jurisdiction other than the one in which the conduct occurred. So long as the lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect will occur, the lawyer shall not be subject to discipline under this Rule. With respect to conflicts of interest, in determining a lawyer's reasonable belief under paragraph (b)(2), a written agreement between the lawyer and client that reasonably specifies a particular jurisdiction as within the scope of that paragraph may be considered if the agreement was obtained with the client's informed consent confirmed in the agreement.