BILL REQ. #: H-0213.1
| State of Washington | 58th Legislature | 2003 Regular Session |
Read first time 01/20/2003. Referred to Committee on Judiciary.
AN ACT Relating to legal services reform; amending RCW 2.48.210, 2.48.220, and 2.48.230; and adding new sections to chapter 2.48 RCW.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 2.48.210 and 1921 c 126 s 12 are each amended to read
as follows:
((Every person before being admitted to practice law in this state
shall take and subscribe the following oath:)) The supreme court by rule shall
prescribe the form of oath of attorney for applicants for admission to
the state bar.
I do solemnly swear:
I am a citizen of the United States and owe my allegiance thereto;
I will support the Constitution of the United States and the
Constitution of the state of Washington;
I will maintain the respect due to courts of justice and judicial
officers;
I will not counsel or maintain any suit or proceeding which shall
appear to me to be unjust, nor any defense except such as I believe to
be honestly debatable under the law of the land, unless it be in
defense of a person charged with a public offense; I will employ for
the purpose of maintaining the causes confided to me such means only as
are consistent with truth and honor, and will never seek to mislead the
judge or jury by any artifice or false statement of fact or law;
I will maintain the confidence and preserve inviolate the secrets
of my client, and will accept no compensation in connection with his
business except from him or with his knowledge and approval;
I will abstain from all offensive personality, and advance no fact
prejudicial to the honor or reputation of a party or witness, unless
required by the justice of the cause with which I am charged;
I will never reject, from any consideration personal to myself, the
cause of the defenseless or oppressed, or delay any man's cause for
lucre or malice. So help me God.
Sec. 2 RCW 2.48.220 and 1921 c 126 s 14 are each amended to read
as follows:
((An attorney or counselor may be disbarred or suspended for any of
the following causes arising after his admission to practice:)) The supreme court
shall prescribe rules of procedure governing the discipline, including
suspension or disbarment, of members of the state bar.
(1) His conviction of a felony or misdemeanor involving moral
turpitude, in which case the record of conviction shall be conclusive
evidence.
(2) Wilful disobedience or violation of an order of the court
requiring him to do or forbear an act connected with, or in the course
of, his profession, which he ought in good faith to do or forbear.
(3) Violation of his oath as an attorney, or of his duties as an
attorney and counselor.
(4) Corruptly or wilfully, and without authority, appearing as
attorney for a party to an action or proceeding.
(5) Lending his name to be used as attorney and counselor by
another person who is not an attorney and counselor.
(6) For the commission of any act involving moral turpitude,
dishonesty or corruption, whether the same be committed in the course
of his relations as an attorney or counselor at law, or otherwise, and
whether the same constitute a felony or misdemeanor or not; and if the
act constitute a felony or misdemeanor, conviction thereof in a
criminal proceeding shall not be a condition precedent to disbarment or
suspension from practice therefor.
(7) Misrepresentation or concealment of a material fact made in his
application for admission or in support thereof.
(8) Disbarment by a foreign court of competent jurisdiction.
(9) Practicing law with or in cooperation with a disbarred or
suspended attorney, or maintaining an office for the practice of law in
a room or office occupied or used in whole or in part by a disbarred or
suspended attorney, or permitting a disbarred or suspended attorney to
use his name for the practice of law, or practicing law for or on
behalf of a disbarred or suspended attorney, or practicing law under
any arrangement or understanding for division of fees or compensation
of any kind with a disbarred or suspended attorney or with any person
not a licensed attorney.
(10) Gross incompetency in the practice of the profession.
(11) Violation of the ethics of the profession.
Sec. 3 RCW 2.48.230 and 1921 c 126 s 15 are each amended to read
as follows:
((The code of ethics of the American Bar Association shall be the
standard of ethics for the members of the bar of this state.)) The
supreme court shall establish from time to time and enforce rules of
professional conduct for the members of the bar of this state, but no
such rules of conduct shall prohibit any member from voluntarily
revealing information relating to the representation of a client to the
extent the lawyer reasonably believes necessary for any of the
following purposes:
(1) To warn that the client or a third person has made, and still
poses, a true and real threat to harm another person, whether or not
the threatened person has notice of the potential danger;
(2) To prevent the probable death or substantial bodily harm of any
person;
(3) To prevent the client from committing any crime;
(4) To prevent the client from committing a fraud that is
reasonably expected to result in substantial injury to the financial
interests or property of another and in furtherance of which the client
has used or is using the lawyer's services;
(5) To prevent, mitigate, or rectify substantial injury to the
financial interests or property of another that is reasonably expected
to result or has resulted from the client's commission of a crime or
fraud in furtherance of which the client has used the lawyer's
services;
(6) To report, pursuant to chapter 26.44 RCW, evidence of
reasonable cause to believe that any child has suffered abuse or
neglect;
(7) To report, pursuant to chapter 74.34 RCW, evidence of probable
cause to believe that any vulnerable adult has suffered abandonment,
abuse, financial exploitation, or neglect;
(8) To report to appropriate authorities or to others evidence that
any lawyer has committed misconduct that if known by the authorities
would reasonably be expected to result in the lawyer's suspension or
disbarment;
(9) To report to appropriate authorities or to others evidence that
any judicial officer has committed misconduct that if known by the
authorities would reasonably be expected to result in the judicial
officer's suspension or removal from judicial office;
(10) To report to appropriate authorities or to others evidence
that any elected official or executive state officer, as those terms
are defined in chapter 42.17 RCW, has knowingly violated any law.
NEW SECTION. Sec. 4 (1) Promptly upon agreeing to provide legal
services for a client, a lawyer shall provide the client a written
explanation of the scope of the legal services, the manner by which
charges for services or goods will be determined, and all other
material terms of their contractual relationship. Promptly upon
agreeing to any material changes in the scope or terms, the lawyer
shall provide the client a written explanation of the changes.
(2) Except to the extent that a lawyer's claim to collect payment
for legal services or related goods or services is consistent with an
explanation of the scope and terms of the lawyer's engagement, and of
any material changes, that was actually agreed to in writing by the
client, a lawyer may bring the claim only in a small claims department
of a district court in an amount within the jurisdictional limit set by
RCW 12.40.010 and must be represented there by a nonlawyer employee or
agent. In bringing such a claim, the lawyer has the burden of proving
by clear and convincing evidence that the client had been informed of
and had agreed to any contractual terms that were not explained and
agreed to in writing by the client.
(3) If a lawyer provides legal services to a client through a
professional services corporation or other law firm that enters into a
contractual relationship with the client, the provisions of this
section applicable to the lawyer also apply to the law firm.
NEW SECTION. Sec. 5 If a lawyer refers a client to a second
lawyer not practicing in the same law firm as the first with the
intention or expectation that the second lawyer will pay a referral fee
or share fees from the client with the referring lawyer or law firm,
the referring lawyer shall provide the client a written explanation of
the intended or expected referral fee or sharing of fees before the
client enters into a contractual relationship with the second lawyer.
The client may recover any fees paid or shared by the second lawyer to
the referring lawyer or law firm that were not so explained to the
client, or later agreed to in writing by the client, in an action for
disgorgement against either one or both lawyers or their law firms
commenced within three years after discovering the material facts of
the transaction.
NEW SECTION. Sec. 6 (1) At the time of establishment of a
professional relationship with a client, or as soon thereafter as
practicable, and within three-year intervals in the case of an ongoing
professional relationship with a client, a lawyer shall provide to the
client a written statement that discloses, in plain language, the
circumstances under which information relating to the client will be
covered by the attorney-client privilege or by the lawyer's duty of
confidentiality, or both, and the meaning of those concepts. The
disclosure statement shall explain the exceptions to the attorney-client privilege and to the lawyer's duty of confidentiality that are
recognized in state and federal court rules, statutory law, and
judicial decisions.
(2) At a minimum, the disclosure statement required by this section
shall explain each of the following:
(a) The general conditions under which information communicated
between the client and the lawyer is privileged from disclosure that
otherwise could be compelled by judicial authority;
(b) The types of actions by the client that might cause the loss of
the privilege as to information initially covered by the attorney-client privilege;
(c) The general conditions under which information gained by the
lawyer is covered by the lawyer's duty of confidentiality.
(3) The disclosure statement should explain the extent to which the
attorney-client privilege and the lawyer's duty of confidentiality
apply in each of the following circumstances:
(a) To information relating to the client if the client uses the
lawyer's services to further a crime or fraud or to conceal from
discovery a crime or fraud, whether or not the lawyer was aware of that
purpose when providing the services;
(b) To information the disclosure of which would mitigate or
rectify substantial injury to the financial interests or property of
another that has resulted from the client's commission of a crime or
fraud in furtherance of which the client has used the lawyer's
services;
(c) To information that the client or another person intends to
physically harm or intimidate a judge or a person who is not a judge;
(d) To information that the lawyer reasonably believes is necessary
to reveal in order to prevent the client or another person from
committing a crime;
(e) To information the disclosure of which would rectify or correct
perjury or other fraud by the client or another person upon a tribunal;
(f) To information the disclosure of which is necessary to comply
with any law;
(g) To information that the lawyer or client is directed to
disclose by a court order or by a subpoena issued by an attorney or a
governmental official lawfully empowered to issue a subpoena;
(h) To information the lawyer discloses without the client's
consent to another lawyer to secure legal advice about the lawyer's
compliance with any laws or rules governing the lawyer;
(i) To information acquired by the lawyer while providing services
other than legal services, such as business advisory services,
investment advisory services, accounting services, counseling services,
lobbying services, or corporate director services or while interacting
socially or in a nonlawyer capacity with the client;
(j) To information acquired by the lawyer to prepare documents for
disclosure to a third party, a governmental agency, or the general
public;
(k) To information relating to conduct of the client in his or her
capacity as a trustee or other fiduciary if the information is sought
by or on behalf of a beneficiary of the trust or other fiduciary
relationship;
(l) To information that a client who is a guardian, personal
representative, receiver, or other court-appointed fiduciary has
breached a fiduciary responsibility;
(m) To information that the lawyer reasonably believes is necessary
to reveal in order to establish a claim or defense in a controversy
with a client;
(n) To information that the lawyer reasonably believes is necessary
to reveal in order to establish a defense to a criminal charge or civil
claim against the lawyer based upon conduct in which the client was
involved;
(o) To information that the lawyer reasonably believes is necessary
to reveal in order to respond to allegations in any proceeding
concerning the lawyer's representation of the client;
(p) To information from a nonclient employee, officer, or director
of a client organization if the information is sought by another person
on behalf of the organization or if the lawyer's duty to the client
organization requires that the lawyer voluntarily disclose the
information to the other person;
(q) To information that the lawyer reasonably believes is necessary
to reveal to protect the welfare or financial interests of a client who
the lawyer reasonably believes cannot adequately act in his or her own
interests;
(r) To information or documents relating to a client that is sought
by a guardian or other person authorized to act for a client who has
been adjudicated, or the lawyer reasonably believes, to have lost legal
capacity;
(s) To information relating to a deceased client that the lawyer
reasonably believes the disclosure of which is necessary to further the
client's intentions concerning the disposition of the client's probate
or nonprobate estate;
(t) To information that relates to coclients jointly represented on
a matter of common interest by the lawyer, including the disclosure of
information to each coclient before or after the development of any
adversity between them.
(4) A lawyer may comply with this section by providing a disclosure
statement that has been published by either the Washington state bar
association or the administrative office of the courts for purposes of
satisfying the requirements of this section; provided that there has
not elapsed more than three years since its publication, or its
republication without material revisions, or more than one year since
that organization's publication of any such disclosure statement with
material revisions.
(5) The failure of a lawyer to provide to a client an adequate
disclosure statement required by this section, and the actions of a
lawyer inconsistent with disclosures made in a disclosure statement
provided pursuant to this section, may be considered as evidence by a
court in any dispute between the lawyer and the client.
NEW SECTION. Sec. 7 Sections 4 through 6 of this act are each
added to chapter 2.48 RCW.