WSR 17-23-066

RULES OF COURT

[November 8, 2017]

The Washington State Bar Association, having recommended the suggested amendments to RPC 1.7—Conflict of Interest: Current Clients, RPC 1.15A—Safeguarding Property, and RPC 4.2—Communication with Person Not Represented by a Lawyer, 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 in January 2018.

(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, 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 8th day of November, 2017.

A. Name of Proponent: Washington State Bar Association.

Bradford E. Furlong, 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

The purpose of the suggested amendment is to provide lawyers with guidance on consent to future conflict waivers under Washington RPC 1.7, Comment [22], which is currently [Reserved.]. Consideration of the issue was initiated by the Committee on Professional Ethics which recommended that it be addressed in the RPC. See Committee on Professional Ethics Rule of Procedure 4: Source of Issues.1

When the Supreme Court adopted revisions to Washington's Rules of Professional Conduct in 2006, it neither expressly adopted nor expressly rejected Official Comment [22] to ABA Model Rule 1.7. It also chose not to present a different view.

Since this time, Washington lawyers have been without guidance from the Court on whether or when waivers of future conflicts may be effective.

ABA Model Rule 1.7, Comment [22] provides that:

[22] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

Although it does not appear that this Court or the Washington Court of Appeals has issued any opinions which address the question whether future conflicts can be waived, courts in many other jurisdictions have done so. And while there are opinions that accept or reject particular future conflicts waivers in particular circumstances, there does not appear to be any current authority in any jurisdiction holding that all future waivers are per se or inherently unenforceable. See, e.g., Lennar Mare Island, LLC v. Steadfast Ins. Co., 105 F.Supp.3d 1100 (E.D.Cal. 2015) (rejecting waiver); Galderma Laboratories, L.P. v. Actavis Mid Atlantic LLC 927 F.Supp.2d 390 (N.D.Tex,. 2013) (accepting waiver); Visa U.S.A., Inc. v. First Data Corp., 241 F.Supp.2d 1100 (N.D.Cal. 2003) (accepting waiver).

As these and many other cases show, the enforceability of future waivers depends in each case upon factors including but not limited to, whether the client is separately represented in the granting of consent, the legal sophistication of the client, the adequacy of disclosure of pertinent risks in light of subsequent events, and the standard factors for assessing the effectiveness of present waivers such as whether the lawyer in question could subjectively and reasonably believe that the lawyer could provide competent representation to all Geoffrey C. Hazard, W. William Hodes & Peter R. Jarvis, The Law of Lawyering §§12.34-.36 (4th Ed. 2015); ABA/BNA Lawyers' Manual on Prof'l Conduct, Current Reports, Conflicts of Interest, Peter Jarvis, Allison Martin Rhodes and Calon Russell, Clearly Enforceable Future Conflicts Waivers, 30 L.M.P.C. 692 (Oct. 22, 2014).

Official Comment [22] fairly reflects both the trend in the law and the kinds of factors that must be considered in assessing the effectiveness of future waivers. To the best knowledge of the CPE, there are in fact no states in which there is case law, a black letter rule or an official comment that expressly bars all future conflicts waivers.

The adoption of Official Comment [22] will prompt Washington lawyers to analyze when and whether to attempt to obtain and rely upon a future conflicts waiver. In the absence of any Washington case law or any Official Comments on the subject, Washington lawyers may not adequately or fully appreciate the circumstances or conditions that must be met before a future conflicts waiver can be said to be effective. In addition, if the Court were to take the contrary position that future waivers are never allowed, Washington-based lawyers and firms would find themselves at a considerable disadvantage in attempting to conduct multistate practices. Finally, it is the opinion of the CPE that future waivers constitute an important and necessary part of respect for client autonomy.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Suggested Rule Amendment

Comment

[1] to [21] unchanged.

[22] [Reserved.] Whether a lawyer may properly request a client to waive conflicts that might arise in the future is subject to the test of paragraph (b). The effectiveness of such waivers is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails. The more comprehensive the explanation of the types of future representations that might arise and the actual and reasonably foreseeable adverse consequences of those representations, the greater the likelihood that the client will have the requisite understanding. Thus, if the client agrees to consent to a particular type of conflict with which the client is already familiar, then the consent ordinarily will be effective with regard to that type of conflict. If the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved. On the other hand, if the client is an experienced user of the legal services involved and is reasonably informed regarding the risk that a conflict may arise, such consent is more likely to be effective, particularly if, e.g., the client is independently represented by other counsel in giving consent and the consent is limited to future conflicts unrelated to the subject of the representation. In any case, advance consent cannot be effective if the circumstances that materialize in the future are such as would make the conflict nonconsentable under paragraph (b).

A. Name of Proponent: Washington State Bar Association.

B. Spokepersons:

Bradford E. Furlong, 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

C. Purpose:

The purpose of the suggested amendment to Comment [3] of RPC 1.15A is to bring the comment into conformity with the reasoning of Washington Advisory Opinions 1202 and 2158 (discussed below) regarding the handling of client funds by lawyers acting in other fiduciary capacities. The Committee on Professional Ethics (CPE) reviewed the advisory opinions and agreed with their analyses and concluded that Comment [3] needed to be clarified.

Washington's RPC 1.15A describes in detail the rules for safeguarding client property and, in particular, the rules regarding the maintenance of lawyer trust accounts. (RPC 1.15B describes what trust account records must be kept.) The rule and Washington comments were adopted by the Supreme Court in 2006 when it adopted revisions to the RPC. The full text of RPC 1.15A is set out in the footnote.1

Comment [3] to RPC 1.15A, in full, reads as follows:

[3] This Rule applies to property held in any fiduciary capacity in connection with a representation, whether as trustee, agent, escrow agent, guardian, personal representative, executor, or otherwise.

The CPE found this comment to be problematic since substantive law outside of the Rules of Professional Conduct controls what fiduciaries are required to do with fiduciary assets. That law imposes prudent investment standards that are inconsistent with RPC 1.15A. See generally RCW 11.100.010-.140.

In 2007, the Rules of Professional Conduct Committee, which was the predecessor to the current CPE, responded to an inquiry by issuing Advisory Opinion 2158 on the following subject: "How RPC 1.15A applies to monies held as a fiduciary for guardianship and probate matters." The opinion began by summarizing the inquiry as follows:

The inquiring attorney is appointed as a personal representative or executor in complex and contested estate matters, acts as a director of a guardianship service, and also acts as a professional guardian and trustee. In these capacities, her "routine" is to invest monies in other than FDIC insured trust accounts under RPC 1.15A, such as "mutual funds" for the purpose of securing a better rate of return on the funds invested. The inquiring party notes that RPC 1.15A, specifically Comment 3, seems to conflict with statutes and case law concerning handling investments when acting in a fiduciary capacity other than as an attorney.

After discussion, Adv. Op. 2158 stated:

Comment (3) to RPC 1.15A applies to "property held in any fiduciary capacity in connection with a representation, whether as a trustee, agent, escrow agent, guardian, personal representative, executor, or otherwise". As such, this does appear to be at odds with the statutes dealing with, for example, guardianships, which vest in the fiduciary the ability to manage assets in a manner in the best interests of the beneficiaries. Emphasis added.

Adv. Op. 2158 analyzed an earlier Advisory Opinion 1202, issued in 1988, dealing with a similar question under the predecessor rule to RPC 1.15A. Adv. Op. 1202 stated the question before the committee and its summary conclusion as follows:

Question: When a lawyer holds funds or property in a fiduciary capacity as a trustee, guardian, or executor, must those funds be held in a trust account regulated by the requirement of RPC 1.14, and must such property be maintained in conformance with that rule?

Answer: If a lawyer holds funds or property in a fiduciary capacity, those funds should not be deposited in a trust account, as required by RPC 1.14. The funds or property should be maintained by the standards of a prudent fiduciary under Washington law.

Adv. Op. 2158 reaffirmed those earlier conclusions under new RPC 1.15A:

In noting that the duties imposed upon a fiduciary in fact may actually require the fiduciary to invest in assets in such a manner that would not be possible with an interest bearing account established by the lawyer, Informal Opinion #1202 held that a lawyer acting in the capacity of a fiduciary should not deposit funds into the trust account when acting as a guardian or personal representative.

… [A]lthough the wording of RPC 1.15A differs in some respect from the previous RPC 1.14, the intent does not appear to have changed. If so, it is certainly not clearly articulated in the new rule. Further, it poses an interesting question as to whether or not the terms of the Rules of Professional Conduct can in effect override the statutory directives of Title 11, dealing with guardians, trustees, personal representatives, and executors. If the new Rule as intended to replace the functions outlined therein, then a formal opinion should be drafted or the rule revised to clearly state what the responsibility of the attorney is when handling monies in a capacity other than an attorney. It would seem unusual to impose a standard on an attorney to invest monies in a manner less prudent that a non-attorney might be required to do in his/her capacity as a guardian or a personal representative. Emphasis added.

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Accordingly, Informal Opinion #1202 still appears to be valid and will control in this case, even though RPC 1.14 has been superseded by the present RPC 1.15A.

In conclusion, the suggested revision to RPC 1.15A, comment [3], would clarify the responsibility of an attorney acting in various fiduciary roles.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Suggested Rule Amendment

Washington Comments

[1] – [2] Unchanged.

[3] This Rule applies to property held in any fiduciary capacity in connection with a representation, whether as trustee, agent, escrow agent, guardian, personal representative, executor, or otherwise. This Rule does not apply to property held by a lawyer acting solely in a fiduciary capacity such as attorney in fact, trustee, guardian, personal representative, executor, administrator, or in any similar capacity where the lawyer's investment duties as a fiduciary are controlled by statute or other law. If a lawyer is acting as both a fiduciary and as the lawyer for the fiduciary, the character of the funds controls whether funds should be deposited in a fiduciary account or the lawyer's trust account. In some cases, it may be permissible to put funds received in either the lawyer's trust account or the fiduciary account. That determination depends in part on the substantive law of fiduciary obligations, which is beyond the scope of these rules. The conflict of interest rules determine whether it is appropriate for a lawyer who is the fiduciary to also serve as the attorney for the fiduciary. See generally RPC 1.7 and RPC 1.8(a) and comment [8] to RPC 1.8 and In re Disciplinary Proceeding Against McKean, 148 Wn.2d 849, 866n.12, 64 P.3d 1226, 1234n.12 (2003).

A. Name of Proponent: Washington State Bar Association.

Bradford E. Furlong, 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

The purpose of the suggested amendment to RPC 4.2 is to clarify the ability of a lawyer acting pro se in a litigation to communicate directly with a represented party.

In 2015, the Committee on Professional Ethics (CPE) took up the issue of a lawyer acting pro se who wants to communicate with a represented party. Following an extensive review of opinions from other jurisdictions a majority held the view that RPC 4.2 does apply to lawyers. However, no advisory opinion in Washington provided specific clarity on the issue. The CPE ultimately recommended new Comment [13] to RPC 4.2 to provide guidance to lawyers on whether and when RPC 4.2 applies to lawyers as pro se litigants or in a non-representational capacity.

RPC 4.2, in full, states that:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Neither the rule nor the comments currently provides express guidance for a lawyer who is involved in a matter personally, and who is either (a) representing himself or herself ("pro se lawyer") or (b) being represented by retained counsel ("represented lawyer") for the matter. The intent of this suggested amendment is to provide such guidance consistent with what the Washington Supreme Court has already made clear.

The court addressed the situation of the pro se lawyer under RPC 4.2 at some length in In re Disciplinary Proceeding Against Haley, 156 Wn.2d 324, 126 P.3d 1262 (2006).

In In re Haley, lawyer Haley was proceeding pro se in an action he had brought against the CEO of a company Haley had been involved with as a shareholder and a board member. While proceeding pro se, he sent a settlement proposal to the defendant and his wife although he knew they were represented by counsel. He followed the letter with a phone call to the defendant. A Hearing Officer and the Disciplinary Board found that Haley had violated RPC 4.2 and the Board recommended he be suspended for six months for this violation. The Supreme Court concluded that RPC 4.2 does apply to lawyers proceeding pro se, but declined to apply this conclusion to Haley because the existing rule and commentary were sufficiently unclear and that Haley might reasonably have concluded that he was not subject to Rule 4.2. The court made clear that it would apply its interpretation of RPC 4.2 only prospectively.

The court's full discussion was as follows:

Applicability of RPC 4.2(a) to Lawyer Acting Pro Se. RPC 4.2(a) reads in full as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.1

The rule is virtually identical to model rule 4.2. See ABA, Annotated Model Rules of Professional Conduct (5th ed. 2003) (ABA Annotated Model Rules) rule 4.2. While we have not formally adopted the commentary to the ABA Annotated Model Rules, we have noted that it "may be 'instructive in exploring the underlying policy of the rules.' "In re Disciplinary Proceeding Against Carmick, 146 Wash.2d 582, 595, 48 P.3d 311 (2002) (quoting State v. Hunsaker, 74 Wash.App. 38, 46, 873 P.2d 540 (1994)). As the comment to model rule 4.2 explains, the rule aims to protect those represented by counsel "against possible overreaching by other lawyers who are participating in the matter, interference by those lawyers with the client-lawyer relationship and the uncounselled disclosure of information relating to the representation."[] In Carmick, we acknowledged that "[t]he rule's purpose is to prevent situations in which a represented party is taken advantage of by adverse counsel." 146 Wash.2d at 597, 48 P.3d 311 (citing Wright v. Group Health Hosp., 103 Wash.2d 192, 197, 691 P.2d 564 (1984)).

At issue in the present case is whether RPC 4.2(a) applies to lawyers acting pro se—or, more precisely, whether a lawyer who is representing himself or herself is, in the words of RPC 4.2(a), "representing a client." This court has not previously addressed this issue; nor has the WSBA issued an ethics opinion, formal or informal, on the question. Other jurisdictions that have considered the rule's applicability to lawyers acting pro se have generally concluded that the policies underlying the rule are better served by extending the restriction to lawyers acting pro se. See In re Segall, 117 Ill.2d 1, 5–6, 509 N.E.2d 988, 109 Ill.Dec. 149 (1987); Comm. on Legal Ethics v. Simmons, 184 W.Va. 183, 185, 399 S.E.2d 894 (1990); Sandstrom v. Sandstrom, 880 P.2d 103, 108–09 (Wyo.1994); Runsvold v. Idaho State Bar, 129 Idaho 419, 420–21, 925 P.2d 1118 (1996); Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 259 (Tex.App.1999); In re Discipline of Schaefer, 117 Nev. 496, 507–08, 25 P.3d 191 (2001).

Haley asks this court to take the contrary view and hold that the plain meaning of the word 'client' in RPC 4.2(a) precludes application of the rule to a lawyer acting pro se. The word "client" is variously defined as "[a] person or entity that employs a professional for advice or help in that professional's line of work," BLACK'S LAW DICTIONARY 271 (8th ed.2004), and "a person who engages the professional advice or services of another." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE 422 (2002). Thus, for the rule to apply to lawyers acting pro se, such lawyers would, in effect, be employing or engaging themselves for advice, help, or services. This, as Haley contends, suggests that lawyers who are acting pro se are excluded from the scope of the rule because such lawyers have no client.

In the alternative, Haley maintains that, even if RPC 4.2(a) were construed to restrict pro se lawyers from contacting represented parties, we should conclude that the rule as applied to him, a lawyer proceeding pro se, was unconstitutionally vague, violating his constitutional due process rights. Such a resolution finds support in Schaefer, 117 Nev. 496, 25 P.3d 191. There, the Nevada State Supreme Court relied on the principle that "a statute or rule is impermissibly vague if it 'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.'" Id. at 511, 25 P.3d 191 (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).[] The Schaefer court based its determination that Nevada's Supreme Court Rule 182, a rule identical to RPC 4.2(a), was unconstitutionally vague on "the absence of clear guidance" from the Nevada State Supreme Court and on "the existence of conflicting authority from other jurisdictions." 117 Nev. at 512, 25 P.3d 191; see State Bar of Texas v. Tinning, 875 S.W.2d 403, 408 Tex.App.1994) (applying standard that "statute, rule, regulation, or order is fatally vague only when it exposes a potential actor to some risk or detriment without giving fair warning of the nature of the proscribed conduct"); see also In re Ruffalo, 390 U.S. 544, 552, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968) (holding that, in state disbarment proceeding, "absence of fair notice as to the reach of the grievance procedure" violated attorney's due process rights).

Both factors relied on in Schaefer are present here. First, as noted above, no prior opinion of this court has addressed the application of RPC 4.2(a) to lawyers proceeding pro se. Second, in late 1996 and early 1997 when Haley contacted Highland, authority permitting such contacts counterbalanced the prohibitions then existing from four jurisdictions. See Segall, 117 Ill.2d at 5–6, 109 Ill.Dec. 149, 509 N.E.2d 988 (1987); Simmons, 184 W.Va. at 185, 399 S.E.2d 894 (1990); Sandstrom, 880 P.2d at 108–09 (Wyo.1994); Runsvold, 129 Idaho at 420–21, 925 P.2d 1118 (1996).[] The comment to rule 2–100 of the California RPCs, a rule identical to RPC 4.2(a) in all material respects, explicitly permits a lawyer proceeding pro se to contact a represented party:

[T]he rule does not prohibit a [lawyer] who is also a party to a legal matter from directly or indirectly communicating on his or her own behalf with a represented party. Such a member has independent rights as a party which should not be abrogated because of his or her professional status. To prevent any possible abuse in such situations, the counsel for the opposing party may advise that party (1) about the risks and benefits of communications with a lawyer-party, and (2) not to accept or engage in communications with the lawyer-party.

Cal. RPC 2–100 discussion ¶ 2. Likewise, a comment to the restatement specifically provides that "[a] lawyer representing his or her own interests pro se may communicate with an opposing represented nonclient on the same basis as other principals." RESTATEMENT (THIRD) OF THE LAW: THE LAW GOVERNING LAWYERS § 99 cmt. e at 73 (2000).

Alongside these explicit statements permitting the questioned contact, other authorities supported a reasonable inference that our RPC 4.2(a) did not foreclose a pro se lawyer's communication with a represented opposing party. For example, the comparable rule in Oregon, DR 7–104 (A)(1), put lawyers acting pro se squarely within the rule's ambit:

(A) During the course of the lawyer's representation of a client, a lawyer shall not:

(1) Communicate or cause another to communicate … with a person the lawyer knows to be represented by a lawyer …. This prohibition includes a lawyer representing the lawyer's own interests."[]

The absence of an explicit prohibition in RPC 4.2(a) could have suggested that Washington's rule was narrower in scope than Oregon's and did not apply to lawyers acting pro se. Additionally, the commentary to model rule 4.2 includes the statement that "[p]arties to a matter may communicate directly with each other." ABA, Annotated Model Rules rule 4.2 cmt. 4, at 417. Unlike the commentary to the restatement and to California's RPC 2–100, this comment does not pointedly refer to a lawyer-party acting pro se; consequently, the breadth of the statement permits an inference that all parties may communicate unreservedly with each other. Finally, the holding in Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 578 A.2d 1075 (1990), appears to call into question the policy concerns supporting the application of RPC 4.2(a) to lawyers acting pro se. In Pinsky, the Connecticut State Supreme Court concluded that a represented lawyer-party had not violated an identical version of RPC 4.2(a) when he directly contacted his landlord, who was also represented by counsel, during an eviction matter. The Pinsky court took note that "[c]ontact between litigants … is specifically authorized by the comments under rule 4.2' and concluded that Pinsky was not "'representing a client'" as stated in the rule. Id. at 236, 578 A.2d 1075. The Pinsky court thus determined that communication between a represented lawyer-party and a represented nonlawyer party did not conflict with a key purpose of RPC 4.2(a)—the protection of a represented nonlawyer party from "possible overreaching by other lawyers who are participating in the matter." ABA, Annotated Model Rules rule 4.2 cmt. 1, at 417. Because the Pinsky decision did not address why contacts from a lawyer acting pro se would pose a greater threat of overreaching than would contacts from a represented lawyer-party,9 [fn 9 That a lawyer-party seeks representation may at least suggest that he or she does not have the 'superior knowledge and skill of the opposing lawyer' in the subject of the litigation, a circumstance that would arguably diminish the risk of overreaching in the represented lawyer-party's contacts with other represented parties. Pinsky, 216 Conn. at 236, 578 A.2d 1075.] Pinsky provides further equivocal authority on the application of RPC 4.2(a) to lawyers acting pro se.

In sum, consistent with the resolution of the same issue in Schaefer, we hold that a lawyer acting pro se is 'representing a client' for purposes of RPC 4.2(a), but given the absence of a prior decision from this court, along with the presence of conflicting or equivocal authority from other jurisdictions and legal commentaries, we find the rule impermissibly vague as to its applicability to pro se attorneys and thus apply our interpretation of the rule prospectively only.[] We therefore dismiss the violation alleged in count 2. We need not reach Haley's alternative contention that the application of RPC 4.2(a) to his communications with Highland violated his free speech rights.

In re Disciplinary Proceeding Against Haley, 156 Wn.2d 324, 333–39, 126 P.3d 1262, 1266–69 (2006) (emphasis added) (footnotes omitted ("[]") except for footnote 9).

Thus, despite considerable authority to the contrary, the Haley opinion prohibits pro se lawyers from making ex parte contact with other persons known to be represented without the consent of the other person's attorney.

The Haley opinion did not state whether the prohibition applies when the lawyer is represented by another and is not acting pro se. The proposed comment answers this related question in the negative, concluding that the rule does not apply to lawyers who have retained counsel and are not acting pro se. There are several reasons that support a different result in the case of a represented lawyer.

First, and foremost, this portion of the proposed comment is based on the language of the rule, itself. RPC 4.2 imposes the prohibition only on lawyers who are "representing a client." A lawyer who has retained counsel to represent him or her in a matter is not "representing a client" as is a pro se lawyer who is self-representing.2

Second, a comment to RPC 4.2 states that: "Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make. Also, a lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so." RPC 4.2, cmt [4].3 This comment expressly permits parties who are represented to communicate directly with one another and permits their attorneys to advise them of this right.4

Third, the Haley court suggested that a different conclusion as to the applicability of RPC 4.2 might be justified where a lawyer has retained counsel:

That a lawyer-party seeks representation may at least suggest that he or she does not have "the superior knowledge and skill of the opposing lawyer" in the subject of the litigation, a circumstance that would arguably diminish the risk of overreaching in the represented lawyer-party's contacts with other represented parties. Pinsky, 216 Conn. at 236, 578 A.2d 1075.

Haley, 156 Wn.2d. at 338 n.9, 126 P.3d at 1269 n.9. This language suggests that the court might find the case of the represented lawyer party distinguishable from that of the pro se lawyer. It also demonstrates that it is currently unclear in Washington whether a represented lawyer would violate RPC 4.2 in communicating directly with other represented persons.

Finally, a represented lawyer's rights as a party should not be overlooked. As the comments to California's Rule 4.2 (which expressly exempts not only represented but pro se lawyers from the prohibition of that state's version of Rule 4.2) point out: "[A lawyer] member has independent rights as a party which should not be abrogated because of his or her professional status. To prevent any possible abuse in such situations, the counsel for the opposing party may advise that party (1) about the risks and benefits of communications with a lawyer-party, and (2) not to accept or engage in communications with the lawyer-party."5 Prohibiting a represented lawyer from communicating directly with another represented person arguably puts the lawyer at a disadvantage if other non-lawyer represented persons can engage in direct communication with represented persons (other than the lawyer) without the consent of their lawyers. Lawyers have no monopoly on persuasive skills. Non-lawyers may be just as persuasive in seeking to resolve matters without the involvement of lawyers as a lawyer can be. Furthermore, there are things to be said for the ability of persons involved in a matter being able to resolve differences among themselves without the involvement of their retained lawyers. If Rule 4.2 is understood to preclude represented lawyers from initiating such direct communication, it would also preclude such represented lawyers from talking to other represented persons who initiate such contacts. There is no good reason that such an opportunity should be denied to represented lawyers.

In the end, however, the predicate for applying RPC 4.2 to a represented lawyer is simply absent in this situation. The represented lawyer is not "representing a client." RPC 4.2 should prohibit a represented lawyer from communicating directly with another represented person. Accordingly, the comment should clarify that RPC 4.2 does not prohibit represented lawyers from communicating directly with other represented persons without the consent of their lawyers.

It follows then that if a represented lawyer is expressly serving as co-counsel in his/her matter, that lawyer should be subject to the rule announced in Haley. In that instance, the represented lawyer is, indeed, "representing a client," notwithstanding that the represented lawyer has retained counsel.

D. Hearing: A hearing is not requested.

E. Expedited Consideration: Expedited consideration is not requested.

F. Supporting Material: Suggested Rule Amendment

Additional Washington Comments (10 – 12 13)

[10] – [12] Unchanged.