WSR 18-23-032

RULES OF COURT

STATE SUPREME COURT

[November 9, 2018]

The Washington State Bar Association, having recommended the suggested amendments to Rules of Professional Conduct (RPCs) 5.5, 7.1, 7.2, 7.3, 7.4, and 7.5, and the Court having approved the suggested amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the suggested amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2019.

(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, 2019. 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 9th day of November, 2018.

Rules 5.5, 7.1, 7.2, 7.3, 7.4, 7.5

Washington State Bar Association

1325 4th Ave, Suite 600

Seattle WA 98101-2539

William D. Pickett, President

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539  

Phone: (509) 972-1825

Jeanne Marie Clavere, Professional Responsibility Counsel

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539  

Phone: (206) 727-8298

In June 2015, the Association of Professional Responsibility Lawyers (APRL)1 issued a groundbreaking report following a two-year study of the regulation of lawyer advertising in the United States. Taking into account constitutional and antitrust concerns, technology change, globalization, and the impact of overregulation, the report concluded that the rules of professional conduct governing lawyer advertising are outdated and unworkable in the current legal environment. The report recommended substantial reform of the American Bar Association's Model Rules of Professional Conduct (ABA Model Rules) relating to lawyer communications and advertising.2

In early 2016, the WSBA Board of Governors (BOG) convened a workgroup to evaluate the APRL Report and report to the BOG regarding possible amendments to the rules governing lawyer advertising and communications in Title 7 of Washington's Rules of Professional Conduct (RPC). After considering the workgroup's analysis and recommendation, the BOG referred the issue to the WSBA Committee on Professional Ethics to develop a proposal for regulatory reform of Washington's ethics rules governing lawyer advertising and communications. The accompanying suggested amendments – designed to simplify the regulation of lawyer advertising, promote innovation in legal marketing, and improve access to legal services – are the culmination of this effort.

A. Impact of the APRL Report

APRL's 2015 Report and 2016 Supplemental Report were broadly disseminated and presented nationally to groups focused on ethics and lawyer regulation, including to the National Organization of Bar Counsel, the ABA National Conference on Professional Responsibility, the ABA Standing Committee on Ethics and Professional Responsibility, and the ABA Center for Professional Responsibility Fall Leadership Conference.

In light of the APRL Reports, the ABA Standing Committee on Ethics and Professional Responsibility (SCEPR) formed a workgroup to draft and recommend potential amendments to the ABA Model Rules to the ABA House of Delegates. The ABA SCEPR workgroup took written commentary on the APRL proposal and convened a public forum at the February 2017 ABA Mid-Year Meeting in Miami.3 At the end of 2017, the workgroup released a working draft of amendments based on the APRL proposal. The workgroup hosted a well-attended second public forum at the February 2018 ABA Mid-year Meeting in Vancouver, British Columbia with thirteen speakers and about 65 attendees present. Twenty-seven written comments were accepted in the comment period to March 1, 2018, and the workgroup further modified its proposals. In late March, SCEPR presented a free webinar to introduce and explain the revised recommendations. More than 100 people registered for the forum and many favorable comments were received. Interest in the Standing Committee's work remains high and the trend is favorable to the changes. The Standing Committee plans to present its report and recommendation to amend the Model Rules to the ABA House of Delegates at the ABA Annual meeting in August 2018.

On April 17, 2017, the Virginia Supreme Court became the first state supreme court to revise its rules of professional conduct using the recommended APRL reforms as a template. It has been reported to the proponent that committees have been formed in North Carolina and Maryland to review the APRL recommendations. Two other jurisdictions have reformed their Title 7 rules consistent with (although not as a result of) the APRL recommendations. On February 7, 2018, the Oregon Supreme Court adopted amendments to Oregon Rules of Professional Conduct 7.3 essentially identical to the amendment suggested here for Washington's RPC. Furthermore, many Title 7 rules in the District of Columbia mirror the principles recommended by APRL.

The APRL proposal recommends both substantive and procedural amendments to the ABA Model Rules of Professional Conduct, seeking greater simplicity and uniformity nationally. In short, the APRL Reports propose that the ABA Model Rules focus specifically on false and deceptive advertisements rather than impose complex technical requirements seeking to prohibit potentially misleading, distasteful, or unprofessional communications, and that discipline in this area be reserved for conduct that would otherwise violate Model Rule 8.4(c) (conduct involving fraud, deception, deceit, or misrepresentation).

The draft APRL amendments retain the core language of Model Rule 7.1 (prohibiting false or misleading communications about a lawyer or the lawyer's services), while deleting Rules 7.4 and 7.5 and most of Rule 7.2. Much of the commentary to the deleted rules migrated to the comments to Rule 7.1 to provide guidance and direction to lawyers in interpreting how to avoid "false and misleading communications." 

With respect to solicitation and referrals, the 2016 APRL Supplemental Report proposes a modified Rule 7.2 that combines elements of current Model Rules 7.2 and 7.3. The modified Rule 7.2 would include a definition of solicitation in the black letter of the rule, and the general ban on solicitation would be limited to in-person and telephone contacts (not including real time electronic contact), with listed exceptions. The proposal also migrates the provision on prepaid and group legal services plans to Rule 7.2 and retains, in modified form, the prohibition in current Rule 7.2 on giving anything of value to a person for recommending the lawyer's services, with listed exceptions.

In early 2016, the BOG formed the Advertising Workgroup to analyze whether the APRL proposal would be viable and appropriate in Washington, the ways in which the proposal might need to be modified in light of Washington's existing Title 7 RPC, and the extent to which the APRL proposal might be improved upon to address issues of over-regulation of advertising.

The consensus of the Advertising Workgroup, as stated in its February 2017 report to the BOG, was that (1) the APRL proposal represented a viable model for regulatory reform of ethics rules governing lawyer advertising and communications, (2) that work could begin on how to adapt the proposal for Washington State, and (3) that there was no reason to delay consideration of potential amendments.

In light of the widespread favorable reception of the APRL Report, the consistency of the APRL proposal with established enforcement practices in Washington State, and the desirability of prompt action in the area of regulatory reform, the Advertising Workgroup proposed that the BOG commence the process of review and revision of Washington's RPC.

The BOG agreed with the workgroup's recommendation and on March 9, 2017, voted to direct the Committee on Professional Ethics (CPE) to: (1) evaluate, and as appropriate draft, potential amendments to Washington's Title 7 RPC in light of the APRL proposal, and (2) report its recommendation to the Board of Governors.

In March 2017 pursuant to the BOG's request, the CPE formed a subcommittee composed of CPE members and several members of the Advertising Workgroup to draft proposed rule amendments to Title 7. The subcommittee proposals were presented to and reviewed by the CPE over the course of several meetings and adopted at the October and December 2017 CPE meetings. After a first reading in January 2018, on March 8, 2018, the BOG approved the CPE recommendations for submission to the Court under GR 9.

These suggested amendments would (1) revise RPC 7.1 and 7.3 and their accompanying comments, (2) delete and reserve RPC 7.2, 7.4, and 7.5, and (3) relocate to RPC 5.5 provisions currently in RPC 7.5(b).

The suggested amendments simplify the Title 7 rules while maintaining the core concept that communications regarding a lawyer's services must not be false or misleading. This core concept is expressed in RPC 7.1, which remains unchanged. Ancillary concepts related to (1) the communication of fields of practice and specialization, and (2) firm names, currently expressed in RPC 7.4 and 7.5 respectively, are incorporated into RPC 7.1 by moving the comments from RPC 7.4 and 7.5 to RPC 7.1 as new comments [5]-[13]. Black letter Rules 7.4 and 7.5 are removed and reserved. New comment [8] would make it clear that a lawyer is generally permitted to indicate a specialization, as long as the communication is consistent with the "false or misleading" standard of Rule 7.1.

The only other material difference from the APRL proposal is to reflect the existence in Washington of LLLTs in the comments, including the relocation of "Additional Washington Comments (3-4)" from RPC 7.5 to Additional Washington Comments (12-13) to RPC 7.1. 

The "Advertising" rule, RPC 7.2 is removed and reserved. The historical basis for having a separate rule was based on traditional restrictions on lawyer advertising that were virtually extinguished when the ABA Model Rules replaced the former ABA Model Code of Professional Responsibility in 1983. The provision in paragraph (b) of current RPC 7.2(b) for "referral fees" is moved to RPC 7.3, the solicitation rule, as discussed below.

The solicitation rule, RPC 7.3(a), has been simplified consistent with the policies discussed in APRL's 2016 Supplemental Report, though the suggested amendments to RPC 7.3 go further by eliminating the current distinction between written solicitation (generally permissible subject to specific prohibitions) and solicitation "by in-person, live telephone, or real-time electronic contract" (generally impermissible but subject to safe harbor exceptions). The suggested RPC 7.3 revision recognizes that solicitation is generally permissible irrespective of form; instead, the rule focuses on prohibiting those solicitations that are unwanted or abusive in defined ways, e.g., where the solicitation is false or misleading, where the lawyer knows that the individual could not exercise reasonable judgment in employing the lawyer, or where the solicitation involves coercion, duress, or harassment. In addition, the suggested revision deletes and reserves paragraph (d), relating to authorized solicitations by prepaid or group legal services plans. Since in-person or telephone solicitation would no longer be generally prohibited, this provision would be unnecessary.

On April 17, 2017, the Virginia Supreme Court became the first state to adopt the APRL solicitation reforms. The Oregon Supreme Court simplified its solicitation rule even further when, on February 7, 2018, it issued an Amended Order adopting a version of the general solicitation rule which limits solicitation restrictions to abusive or unwanted communications "by any means."

Current RPC 7.5(b) appears to be the only place in the rules that provides a justification for permitting out-of-state law firms to open branch offices here and allowing Washington-based law firms to open offices in other jurisdictions. Black letter law would ordinarily prohibit multijurisdictional arrangements involving otherwise unlicensed individuals unless the arrangement is specifically authorized by law. See RCW 2.48.180 (2)(b), (2)(c), (2)(d), (2)(e); RPC 5.5 (b)(1) (a lawyer not admitted in Washington may not establish an office here for the practice of law "except as authorized by these Rules or other law"); see also Hazard, Hodes & Jarvis, The Law of Lawyering §63.06 (4th ed. 2015) (explaining that RPC 7.5(b), which "is chiefly concerned with the manner in which multistate firms present themselves to the public," implicitly endorses the existence of such firms; "Without such an understanding, a single firm could not have 'offices in more than one jurisdiction' ...."). The unauthorized practice statute makes this clear as well. See RCW 2.48.180(7) (in a prosecution for unauthorized practice of law under the Washington statute, "it is a defense if proven by the defendant by a preponderance of the evidence that, at the time of the offense, the conduct alleged was authorized by the rules of professional conduct or the admission to practice rules, or Washington business and professions licensing statutes or rules").

Because RPC 7.5 would be repealed under the rule changes being recommended, it is suggested that a new paragraph be included in RPC 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law) to clarify that when lawyers practice in firms having offices in more than one jurisdiction, the business structure does not itself constitute a violation of the Rules of Professional Conduct and the Washington unauthorized practice statute. New comments would be added to RPC 5.5 (Comment [22]) and RPC 7.1 (Comment [14]) explaining why this rule change is being made. References to RPC 7.5 in comments [4] and [21] to RPC 5.5 are removed.

In addition, two technical corrections are suggested in Comments [5] and [14] of RPC 5.5 to clarify that those comments are Washington revisions. Finally, as an additional technical correction, two instances of the phrase "to prospective clients" are deleted from Comment [21] to conform the comment to the ABA Model Rule.

The suggested amendments would move the "referral fee" provisions from RPC 7.2(b) to paragraph (b) of the solicitation rule, RPC 7.3, to reflect the historical justification for regulating referral fees as a prohibited form of solicitation (i.e., unseemly "running" or "ambulance chasing"). See Hazard, Hodes, & Jarvis, The Law of Lawyering, supra, at §60.05 (4th ed. 2015) ("Ordinarily, paying for a recommendation of a lawyer's services is a form of solicitation, and thus is prohibited by Model Rule 7.3. [Model] Rule 7.2(b), however, provides several commonsense exceptions to govern situations in which money does indeed change hands in exchange for a recommendation of services, but where the evils of direct contact solicitation are not present."). The one material difference from the APRL proposal is that the suggested rule reflects the existence in Washington of LLLTs in paragraph (b)(4).

Adopting this version of the referral fee rule would change or clarify the Washington rule on referral fees as follows:

If the suggested amendments to the lawyer advertising rules are adopted, the proponent recommends that the corresponding LLLT Rules of Professional Conduct be simultaneously amended so the two rule sets are in conformity. The LLLT Board is submitting suggested amendments to the LLLT RPC consistent with these suggested amendments.

A hearing is not requested.

Expedited consideration is not requested.

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 misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

[1] [Washington revision] This Rule governs all communications about a lawyer's services, including advertising permitted by Rule 7.2. Whatever means are used to make known a lawyer's services, statements about them must be truthful.

[2] Truthful statements that are misleading are also prohibited by this Rule. A truthful statement is misleading if it omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation.

[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.

[4] [Washington revision] It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 8.4(c). See also Rule 8.4(e) for the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

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

(1) is a lawyer or an LLLT orthe solicitation is false or misleading;

(2) has a family, close personal, or prior professional relationship with the lawyer orthe lawyer knows or reasonably should know that the physical, emotional, or mental state of the subject of the solicitation is such that the person could not exercise reasonable judgment in employing a lawyer;

(3) has consented to the contact by requesting a referral from a not-for-profit lawyer referral service.the subject of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or

(b) A lawyer shall not solicit professional employment from a client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), ifcompensate, or give or promise anything of value to, a person who is not an employee or lawyer in the same law firm for the purpose of recommending or securing the services of the lawyer or law firm, except that a lawyer may;:

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; orpay the reasonable cost of advertisements or communications permitted by Rule 7.1, including online group advertising;

(2) the solicitation involves coercion, duress or harassment.pay the usual charges of a legal service plan or a not-for-profit lawyer referral service;

(c) [Reserved.]

(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. [Reserved.]

[1] [Washington revision] A solicitation is a targeted communication initiated by theor on behalf of a lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. Solicitations can include in-person, written, telephonic, and electronic communications. In contrast, a lawyer's communication typically does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.

[2] [Reserved.]There is a potential for abuse when a solicitation involves direct in-person, live telephone or real-time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of the trained advocate in a direct interpersonal encounter. The person, 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.

[3] [Reserved.]This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation justifies its prohibition, particularly since lawyers have alternative means of conveying necessary information to those who may be in need of legal services. In particular, communications can be mailed 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 to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the public to direct in-person, telephone or real-time electronic persuasion that may overwhelm a person's judgment.

[4] [Reserved.]The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to the public, 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 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.

[5] [Reserved.Washington revision] There is far less likelihood that a lawyer would engage in abusive practices against 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.

[6] [Reserved.]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 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 as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the recipient of the communication may violate the provisions of Rule 7.3(b).

[7] [Reserved]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, insured, 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. 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.

[8] [Reserved.]

[9] [Reserved.]Paragraph (d) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See 8.4(a).

[10] A lawyer who receives a referral from a third party should exercise caution in contacting the prospective client directly by in-person, live telephone, or real-time electronic contact. Such contact is generally prohibited by this Rule unless the prospective client has asked to be contacted by the lawyer. A prospective client may request such contact through a third party. Prior to initiating contact with the prospective client, however, the lawyer should confirm with the source of the referral that the prospective client has indeed made such a request. Similarly, when making referrals to other lawyers, the referring lawyer should discuss with the prospective client whether he or she wishes to be contacted directly.While all communications about a lawyer's services are subject to the general prohibition against false or misleading communication in Rule 7.1, in-person solicitation can create problems because of the particular circumstances in which the solicitation takes place, and those circumstances are, therefore, appropriately regulated. Paragraph (a) of this Rule prohibits solicitation in circumstances or through means that are not conducive to intelligent, rational decisions. Unwanted solicitations (after the subject has informed the lawyer not to make contact) or solicitations involving coercion, duress, or harassment are specifically prohibited. Such circumstances and means could be the harassment of early morning or late-night telephone calls to a potential client to solicit legal work, repeated calls at any time of day, solicitation of an accident victim or the victim's family shortly after the accident or while the victim is still in medical distress (particularly where a lawyer seeks professional employment by in-person or other real-time contact in such circumstances), or solicitation of vulnerable subjects, such as persons facing incarceration, or their family members, in or near a courthouse. The prohibition on solicitation of a subject who cannot "exercise reasonable judgment in employing a lawyer" extends to an individual with diminished capacity who cannot adequately act in the individual's own interest, and the provisions of Rule 1.14 may provide guidance in evaluating "the physical, emotional or mental" state of the subject.

[11] Those in need of legal representation often seek assistance in finding a lawyer through a lawyer referral service. Washington adopted paragraph (a)(3) in order to facilitate communication between lawyers and potential clients who have specifically requested a referral from a not-for-profit lawyer referral service. Under this paragraph, a lawyer receiving such a referral may contact the potential client directly by in-person, live telephone, or real-time electronic contact to discuss possible representation.Under Rule 5.1, Rule 5.3, and Rule 8.4(a), the solicitation restrictions that apply to the lawyer's own acts or conduct also extend to acts or conduct by employees, agents, or any third persons acting on the lawyer's behalf.

[12] Washington did not adopt paragraph (c) of the Model Rule relating to labeling of communications with prospective clientsand solicitations. A specific labeling requirement is unnecessary in light of the prohibitions in Rule 7.1 and Rule 7.3 (a)(1) against false or misleading communications regarding the lawyer or the lawyer's services and in solicitations of professional employment. Washington also has not adopted paragraph (d) of the Model Rule creating a safe harbor for in-person and telephonic solicitations in the context of a prepaid or group legal services plan because solicitations of professional employment by any means and in all contexts are permitted subject to the exceptions contained in paragraphs (a)(1) – (4). In addition, prior provisions and comments under Rule 7.3 in Washington relating to in-person, telephonic, or real-time electronic solicitations in the context of referrals from a third party or a lawyer referral service have been removed because solicitations by any means in this context are permitted subject to the exceptions contained in paragraphs (a)(1) – (4) of this Rule.

[13] The phrase "directly or through a third person" in paragraph (a) was retained from former Washington RPC 7.3(a).Paragraph (b) of this Rule was derived from former Washington RPC 7.2(b).

[14] The phrase "prospective client" in Rule 7.3(a) has been replaced with the phrase "possible client" because the phrase "prospective client" has become a defined phrase under Rule 1.18 with a different meaning. This is a departure from the ABA Model Rule which has dispensed altogether with the phrase "from a prospective client' in this rule. The rule is not intended to preclude lawyers from in-person conversations with friends, relatives or other professionals (i.e. intermediaries) about other friends, relatives, clients or patients who may need or benefit from the lawyer's services, so long as the lawyer is not asking or expecting the intermediary to engage in improper solicitation. See RPC 8.4(a) which prohibits improper solicitation "through the acts of another." Absent limitation of prohibited in-person communications to "possible clients" there is danger that lawyers might mistakenly infer that the kind of benign conversations with non-client intermediaries described above are precluded by this rule.Except as permitted under paragraphs (b)(1)-(b)(5), lawyers are not permitted to pay others for recommending the lawyer's services or for channeling professional work in a manner that violates RPC 7.1 or RPC 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 solicitations permitted by RPC 7.1 and this Rule, including the costs of print directory listings, online directory listings, newspaper ads, television and radio airtime, domain-name registrations, sponsorship fees, 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, as long as the employees, agents and vendors do not direct or regulate the lawyer's professional judgment (see Rule 5.4(c)). 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 RPC 1.5(e) (division of fees) and 5.4 (professional independence of the lawyer), and the lead generator's communications are consistent with RPC 7.1 (communications concerning a lawyer's services). To comply with RPC 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 (duties of lawyers and law firms with respect to the conduct of nonlawyers); RPC 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 [5] to Rule 5.3.

(a) – (e) Unchanged.

Comment

[1] – [3] Unchanged.

[4] [Washington revision] Other than as authorized by law or this Rule, a lawyer who is not admitted to practice generally in this jurisdiction violates paragraph (b) if the lawyer establishes an office or other systematic and continuous presence in this jurisdiction for the practice of law. Presence may be systematic and continuous even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. See also Rules 7.1 and 7.5(b)Washington Comment [14] to Rule 7.1.

[5] [Washington revision] 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 paragraph (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 housel counsel under APR 8(f) here.

[6] – [13] Unchanged.

[14] [Washington revision] Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer's client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer's work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client's activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer's recognized expertise developed through the regular practice of law on behalf of clients in matters involving a particular body of federal, nationally-uniform, foreign, or international law. Lawyers desiring to provide pro bono legal services on a temporary basis in Washington following determination by the Supreme Court that an emergency affecting the justice system, as a result of a natural or other major disaster, has occurred, who are not otherwise authorized to practice law in Washington, as well as lawyers from another affected jurisdiction who seek to practice law temporarily in Washington, but who are not otherwise authorized to practice law in Washington, should consult Admission to Practice Rule 27 on Provision of Legal Services Following Determination of Major Disaster.

[15] – [20] Unchanged.

[21] [Washington revision] Paragraphs (c) and (d) do not authorize communications advertising legal services to prospective clients in this jurisdiction by lawyers who are admitted to practice in other jurisdictions. Whether and how lawyers may communicate the availability of their services to prospective clients in this jurisdiction is governed by Rules 7.1 to 7.5.