WSR 18-01-032

RULES OF COURT

[December 6, 2017]

The Washington State Bar Association, having recommended the adoption of the proposed amendments to RPC l.0A—Terminology, RPC 1.10—Imputation of Conflicts of Interest: General Rule, and RPC 1.11—Special Conflicts of Interest for Former and Current Government Officers and Employees, and the Court having considered the amendments and comments submitted thereto, and having determined that the proposed amendments will aid in the prompt and orderly administration of justice;

Now, therefore, it is hereby

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

(b) That the proposed amendments will be published in the Washington Reports and will become effective September 1, 2018.

DATED at Olympia, Washington this 6th day of December, 2017.

(a) - (n) [Unchanged.]

[1] – [3] [Unchanged.]

Firm

[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

See also Washington Comments [12] and [13].

Fraud

[5] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

See also Washington Comment [13] [14].

Informed Consent

[6] [Unchanged.]

[7] [Washington revision] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in writing," see paragraphs (n) and (b). Rule 1.8(a) requires that a client's consent be obtained in a writing signed by the client. See also Rule 1.5(c)(1) (requiring that a contingent fee agreement be "in a writing signed by the client"). For a definition of "signed," see paragraph (n).

See also Washington Comment [14] [15].

Screened

[8] – [9] [Unchanged.]

[10] [Washington revision] In order to be effective, screening measures must be implemented as soon as practical after a lawyer, LLLT, or law firm knows or reasonably should know that there is a need for screening.

See also Washington Comment [15] [16].

Additional Washington Comments (11 - 16 17)

[11] – [12] [Unchanged.]

Fraud

[13] [14] Model Rule 1.0A(d) was modified to clarify that the terms "fraud" and "fraudulent" in the Rules of Professional Conduct do not include an element of damage or reliance.

Informed Consent

[14] [15] In order for the communication to the client to be adequate it must be accomplished in a manner that can be easily understood by the client.

Screened

[15] [16] See Rules 1.10 and 6.5 for specific screening requirements under the circumstances covered by those Rules.

Other

[16] [17] For the scope of the phrase "information relating to the representation of a client," which is not defined in Rule 1.0A, see Comment [19] to Rule 1.6.

(a) - (c) [Unchanged.]

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. However, lawyers appointed or assigned to represent indigent members of the public (public defenders) are subject to this rule regardless of whether they are government employees.

(e) – (f) [Unchanged.]

[1] – [8] [Unchanged.]

Additional Washington Comments (9 - 13 15)

[9] – [14] [Unchanged.]

(a) - (e) [Unchanged.]

[1] – [10] [Unchanged.]