IN THE MATTER OF THE ADOPTION OF THE AMENDMENTS TO NEW CrR 4.11-RECORDING WITNESS INTERVIEWS; MAR 3.2-AUTHORITY OF ARBITRATORS; MAR 6.2-FILING OF AWARD; MAR 6.3-JUDGMENT ON AWARD; MAR 6.4-WITNESS COSTS AND ATTORNEY FEES AND COSTS AND MAR 7.1-REQUEST FOR TRIAL DE NOVO, RPC 1.2(f)-SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN LAWYER AND CLIENT; RPC 1.6-CONFIDENTIALITY OF INFORMATION; 1.8(g)-CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES; RPC 1.10(a), (e)-IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE; RPC 1.15A (h)(7)-SAFEGUARDING PROPERTY; RPC 3.4-FAIRNESS TO OPPOSING PARTY AND COUNSEL AND RPC 3.8(g), (h) AND (i)-SPECIAL RESPONSIBILITIES OF A PROSECUTOR

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ORDER NO. 25700-A-974

     The Washington State Bar Association having recommended the adoption of the proposed amendments to New CrR 4.11-Recording Witness Interviews; MAR 3.2-Authority of Arbitrators; MAR 6.2-Filing of Award; MAR 6.3-Judgment on Award; MAR 6.4-Witness Costs and Attorney Fees and Costs and MAR 7.1-Request for Trial De Novo; RPC 1.2(f)-Scope of Representation and Allocation of Authority Between Lawyer and Client; RPC 1.6-Confidentiality of Information; RPC 1.8(g)-Conflict of Interest: Current Clients: Specific Rules; RPC 1.10 (a), (e)-Imputation of Conflicts of Interest: General Rule; RPC 1.15A (h)(7)-Safeguarding property; RPC 3.4-Fairness to Opposing Party and Counsel and RPC 3.8 (g), (h) and (i)-Special Responsibilities of a Prosecutor, and the Court having approved the proposed amendments for publication;

     Now, therefore, it is hereby

     ORDERED:

     (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 Courts' websites in January, 2011.

     (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, 2011. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 2nd day of December, 2010.

	For the Court
	Madsen, C.J.
	CHIEF JUSTICE

     The purpose of the rule is to enable parties to preserve an accurate audio record of pretrial witness interviews in criminal cases. Because witness depositions are not permitted in criminal cases without the trial court's permission, witness interviews have traditionally been documented by handwritten notes of attorneys and private investigators. However, this method has proved less than satisfactory because of frequent disputes over what witnesses actually said and the accuracy of the notes. These disputes were difficult to definitively resolve because the finders of fact only had the words of the witnesses against private investigators and police.

     The previous opposition to the recording rule was based on several concerns. The first was that electronic recording violated witnesses' rights under the Washington State Privacy Act. However, upon further consideration, most stakeholders now believe that the Privacy Act is not violated by recording witness interviews because the Act only prohibits the non-permissive electronic recording of "private" conversations. Given that one of the major purposes of these interviews is for impeachment at trial if the witnesses' testimony changes, and there are often several people present at the interviews, the interviews are not considered to be private within the meaning of the Privacy Act.

     Second, some felt that electronic audio recording of witness interviews, especially of putative victims, without their permission, would be traumatic or intimidating to victims. However, additional experience with electronic audio recording has shown that it is the interviews themselves, rather than the recording of those interviews, that can be upsetting to witnesses.

     It is now more widely believed that recording interviews can provide a benefit to witnesses and opposing parties because it can prevent misunderstandings or misrepresentations of what witnesses said in their interviews. Additionally, because audio recording records the interviewers as well as the witnesses, it encourages a professional atmosphere in the interviews.

     Lastly, it has been suggested that because participation in witness interviews is entirely voluntary, so too should be a witnesses' decision to permit recording. However, it is recognized that defendants have the constitutional right to have their counsel or investigators interview material witnesses in preparation for trial. Indeed, defense counsel have the ethical and professional obligation to conduct these interviews. Since material witness interviews will usually take place for matters that proceed to trial, creating accurate records of these interviews can only enhance the court's truth finding function.

     The Committee, including some former opponents of the proposed rule, believe that the positive benefits of having accurate records of witness interviews outweighs many of the perceived negatives. The proposed recording rule has been carefully drafted and revised so as to not change any other discovery rights and obligations concerning witness interviews and statements that currently exist under the Criminal Rules. The disclosure and use of electronically recorded interviews is confined to the parties and only what is necessary to conduct the parties' cases. Possession of electronic recordings of witness interviews will continue to be governed by CrR 4.7(h), which provides that they cannot be given to defendants without the agreement of prosecutors or by court order.

     In recognition of the sensitivity of the interview content, the proposed rule now contains a specific prohibition on dissemination of the audio recording or transcripts except where required to satisfy the discovery obligations of CrR 4.7, pursuant to court order after a showing of good cause relating solely to the criminal case at issue, or as reasonably necessary to conduct a party's case. Objections to taking a statement or the protocol for recording are expressly subject to oversight of a superior court judge pursuant to the protective order provisions of CrR 4.7(h).

     The rule prescribes information that must be provided on the tape/recording at the commencement of the interview. It also provides that the person interviewed and all parties are entitled to copies of the interview.

     In summary, the concerns of many who originally opposed proposed CrR 4.11 have been alleviated by additional years of experience with electronic audio recording of witness interviews. Consequently, given the many benefits of having accurate records of pretrial witness interviews, the Board believes it is appropriate to submit this new version of the rule to the Court for consideration.

     (c) Preliminary Statement. At the commencement of any recorded witness interview, the person conducting the interview shall confirm on the audiotape or recording that the witness has been provided the following information: (1) the name, address, and telephone number of the person conducting the interview; (2) the identity of the party represented by the person conducting the interview; and (3) that the witness may obtain a copy of the recording and transcript, if made.

     The suggested amendment to MAR 3.2(a) would add consistency by clearly stating this authority in a state-wide rule. This amendment would not expand the substantive availability of fees, as arbitrators would be authorized to award costs and attorney fees only as "authorized by law." This authority would then be a foundation to the concurrent proposals to amend the procedures in MAR 6.4 and 7.1 relating to costs and attorney fees. For more information, please see the statements of purpose for the concurrent suggested amendments to MAR 6.3, 6.4, and 7.1. The amendment would also provide an "and" that was likely inadvertently omitted from the current list in MAR 3.2.

     A new section (b) would: (1) restate the current rule that only the court may decide motions for involuntary dismissal, to change or add parties, and for summary judgment; and (2) clarify that, notwithstanding the express authority of the arbitrator to award costs and attorneys fees "as authorized by law," the court retains the authority to consider cost and attorney fee issues "if those issues cannot otherwise be decided by the arbitrator." The latter clarification is intended as a "catch-all" provision to ensure that the rule does not prevent the otherwise justified award of costs and attorney fees in some mandatory arbitration actions. For example, some appellate case law holds that it is improper for the trial court to make an attorney fee award pursuant to RCW 4.84.250-.280 when an MAR arbitrator had the authority under local rules to award attorney fees but was not asked to do so. Trusley v. Statler, 69 Wn. App. 462, 464-65, 849 P.2d 1234 (1993). However, attorney fee awards under RCW 4.84.250-.280 are determined through offer-of-settlement procedures, and the offer cannot be communicated to the trier of fact until after the judgment. See RCW 4.84.280; Hanson v. Estell, 100 Wn. App. 281, 290-91, 997 P.2d 426 (2000). Because the trial court rather than the arbitrator enters judgment, some might conclude that, when the arbitrator has been authorized to decide the issue of costs and attorney fees, neither the arbitrator nor the court may make an award of costs and attorney fees pursuant to RCW 4.84.280 in a mandatory arbitration case. The proposed amended language is designed to avoid this and similar incongruous results.

     (1) Decide procedural issues arising before or during the arbitration hearing, except issues relating to the qualifications of an arbitrator;

     (2) Invite, with reasonable notice, the parties to submit trial briefs;

     (3) Examine any site or object relevant to the case;

     (4) Issue a subpoena under rule 4.3;

     (5) Administer oaths or affirmations to witnesses;

     (6) Rule on the admissibility of evidence under rule 5.3;

     (7) Determine the facts, decide the law, and make an award;

     (8) Award costs and attorney fees as authorized by law; and

     (9) Perform other acts as authorized by these rules or local rules adopted and filed under rule 8.2.

     (b) Authority of the Court. The court shall decide:

     (1) Motions for involuntary dismissal, motions to change or add parties to the case, and motions for summary judgment shall be decided by the court and not by the arbitrator; and

     (2) Issues relating to costs and attorney fees if those issues cannot otherwise be decided by the arbitrator.

     The concurrent proposal to amend MAR 3.2 to expressly authorize arbitrators to award costs and attorney fees as authorized by law provides a foundation for this proposal. Suggested MAR 6.4 then outlines a procedure to follow and a timeline for requests for costs and attorney fees. It requires the arbitrator to decide the request within 14 days. If the arbitrator fails to do so, a party may, after giving notice to the arbitrator, seek an order from the court directing the arbitrator to do so by a date certain. It is intended that the required notice to the arbitrator could be formal or informal.

     This suggested amendment to MAR 6.4 is a necessary predicate to the concurrent proposal to amend MAR 7.1 to remove any ambiguity about when the 20-day period within which to request a trial de novo commences. For more information, please see the statements of purpose for the concurrent suggested amendments to MAR 3.2, 6.3, and 7.1.

     A.

     (d) Decision. Within 14 days after the service of the request for costs and attorney fees, the arbitrator shall file an amended award granting the request in whole or in part, or a denial of costs and attorney fees, with the clerk of the superior court, with proof of service upon each party. If the arbitrator fails to timely file and serve the amended award or denial and proof of service, a party may, after notice to the arbitrator, file a motion with the court for an order directing the arbitrator to do so by a date certain. Late filing shall not invalidate the decision. Witness fees and other costs provided for by statute or court rule in superior court proceedings shall be payable upon entry of judgment in the same manner as if the hearing were held in court.

     In 2005, the WSBA suggested that the Supreme Court amend MAR 7.1 to eliminate the requirement that a party requesting a trial de novo serve the request and file proof of service of the request within 20 days after the arbitration award is filed with the court. In November 2006, the Court decided not to adopt that amendment. In a letter referring the matter back to the WSBA, the Court suggested that any such change to MAR 7.1 should be made in conjunction with changes to the rules regarding the filing of arbitration awards.

     The current proposal follows that suggestion. Amended MAR 7.1(a) would change the result in Nevers v. Fireside, Inc., 133 Wn.2d 804, 811-12, 947 P.2d 721 (1997), and its progeny, in part. See, e.g., Alvarez v. Banach, 153 Wn.2d 834, 840, 109 P.3d 402 (2005); Roberts v. Johnson, 137 Wn.2d 84, 91, 969 P.2d 445 (1999). Nevers and subsequent case law have held that timely service and timely filing of proof of service are mandatory; a failure to strictly comply with these requirements prevents the Superior Court from conducting a trial de novo. This is a harsh result.

     Considering the amount of litigation and appellate review devoted to this issue, the rule in its present form represents a trap for the unwary. It is not necessary that both service and proof of service be accomplished within 20 days. The statute authorizing mandatory arbitration requires only that the request be filed within that period. See RCW 7.06.050 (1)(b) (within 20 days after entry and service of an arbitrator's decision, "any aggrieved party may file with the clerk a written notice of appeal and request for a trial de novo in the superior court on all issues of law and fact. Such trial de novo shall thereupon be held ...").

     The suggested amendment to MAR 7.1 would require that the request be filed and served within 20 days, but would set no specific deadline for the filing of proof of service. The first two sentences of amended MAR 7.1(a), along with a new section (c), would accomplish this change. New section (c) would expressly state that failure to file proof of service of the request for a trial de novo shall not void the request. Thus, if proof of service is not filed, the court could conduct a trial de novo if the court deems it appropriate to do so in the interests of justice, and could impose terms it deems appropriate under the circumstances of the case.

     The second sentence of amended section (a) would clarify that a request for trial de novo should be served in accordance with CR 5. Although MAR 1.3 (b)(2) already provides that all papers should be served in accordance with CR 5 "[a]fter a case is assigned to an arbitrator," whether MAR 1.3 (b)(2) continues to apply to a request made to the trial court might be subject to debate.

     The second sentence of amended section (a) also would remove ambiguity about when the 20 days to request a trial de novo begin to run. This sentence works in conjunction with existing MAR 6.2 (setting timelines for the filing of an award and of an amended award to correct obvious errors made in stating the award) and the concurrent proposal to amend MAR 6.4 (setting timelines for the filing of an amended award including costs or attorney fees or denial of same). The proposal is consistent with case law holding that the 20-day period runs from proof of service, if that date is later than filing. See Roberts v. Johnson, 137 Wn. 2d 84, 92, 969 P.2d 446 (1999). For more information, please see the statements of purpose for the concurrent suggested amendments to MAR 3.2 and 6.4.

     The second and third sentences of amended section (a) would ensure that a request for a trial de novo is still valid if filed (or served, as applicable) on a date that is after the award is announced, but before the 20-day period began to run. This prevents needless repetition when, for example, a party promptly seeks a trial de novo only to have the other party prolong the proceedings before the arbitrator by filing a request for costs and/or attorney fees. This situation is analogous to a premature notice of appeal from a superior court judgment, which is timely even though filed before final judgment is entered. See RAP 5.2(g).

     Amended section (b) would clarify that an award of costs and attorney fees is part of the "amount of the award" that should not be mentioned in a request for a trial de novo.

     (b) Form. The request for a trial de novo shall not refer to the amount of the award, including any award of costs or attorney fees, and shall be in substantially in the form set forth below:

     [Form unchanged.]

     (c) Proof of Service. The party filing and serving the request for a trial de novo shall file proof of service with the court. Failure to file proof of service within the 20-day period shall not void the request for a trial de novo.

     (b d) Calendar. When a trial de novo is requested as provided in section (a), the case shall be transferred from the arbitration calendar in accordance with rule 8.2 in a manner established by local rule.

     This suggested amendment to RPC 1.2 is based on a proposal from the WSBA Office of Disciplinary Counsel (ODC) to reenact, in substantially similar form, an ethics rule prohibiting lawyers from acting without authority that had been deleted from the rule when the Ethics 2003 changes were enacted in 2006. This provision is not included in the Model Rules. The Rules of Professional Conduct (RPC) Committee agreed with ODC that a specific rule regarding a lawyer's acting without client authority is desirable, and that disciplinary authorities should not be forced to resort to a general "catch-all" provision in RPC 8.4 to impose professional discipline for this sort of misconduct. The RPC Committee was also persuaded by the fact that the Washington Supreme Court relied on the former "acting without authority" rule in two recent disciplinary decisions. See In re Disciplinary Proceeding Against Stansfield, 164 Wn.2d 108, 187 P.3d 254 (2008) (respondent lawyer purported to represent the estate of a vehicular homicide victim without obtaining authority to do so from the victim's family); In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317, 157 P.3d 859 (2007) (respondent lawyer filed an appeal to the Ninth Circuit Court of Appeals without proper consultation with some of his clients and without their authorization).

     The RPC Committee proposed enacting the rule as paragraph (f) to RPC 1.2, even though there is no longer a paragraph (e), because the earlier version of this rule had been located there. The only significant change from the prior version of the rule is in the mental state required to impose discipline, from "willfully" under prior versions to one of knowledge or constructive knowledge. The RPC Committee concluded that this change is reasonable, as "knowingly" is defined in the Terminology section of RPC 1.0 while "willfully" is not.

     The additional proposed comments are intended to explain the history of the provision and to clarify its application when a client has diminished capacity or when a lawyer is acting as permitted by the ethics rules, the court rules, or other law.

     (a) - (d) [Unchanged.]

     (e) [Reserved.]

     (f) A lawyer shall not purport to act as a lawyer for any person or organization if the lawyer knows or reasonably should know that the lawyer is acting without the authority of that person or organization, unless the lawyer is authorized or required to so act by law or a court order.

Additional Washington Comments (14-17)

Agreements Limiting Scope of Representation

     [14] [Unchanged.]

Acting as a Lawyer Without Authority

     [15] Paragraph (f) was taken from former Washington RPC 1.2(f), which was deleted from the RPC by amendment effective September 1, 2006. The mental state has been changed from "willfully" to one of knowledge or constructive knowledge. See Rule 1.0 (f) & (j). Although the language and structure of paragraph (f) differ from the former version in a number of other respects, paragraph (f) does not otherwise represent a change in Washington law interpreting former RPC 1.2(f).

     [16] If a lawyer is unsure of the extent of his or her authority to represent a person because of that person's diminished capacity, paragraph (f) of this Rule does not prohibit the lawyer from taking action in accordance with Rule 1.14 to protect the person's interests. Protective action taken in conformity with Rule 1.14 does not constitute a violation of this Rule.

     [17] Paragraph (f) does not prohibit a lawyer from taking any action permitted or required by these Rules, court rules, or other law when withdrawing from a representation, when terminated by a client, or when ordered to continue representation by a tribunal. See Rule 1.16(c).

     This suggested amendment proposes deleting "or other law" in the next to last sentence of comment [3]. Washington did not adopt the "other law" exception to the confidentiality provision contained in Model Rule 1.6 (b)(6), but the comment adopted in 2006 mistakenly includes a reference to it. This is a technical correction, not a substantive change.

     (a) - (b) [Unchanged.]

     [3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. See also Scope.

     [4] - [26] [Unchanged]

     The suggested amendment proposes deleting the semicolon in (g) after "two or more clients" in the first sentence of this paragraph, correcting a typographical error.

     It is also proposed that the reference to WSBA Informal Ethics Opinion 1647 in comment [27] be deleted. Adopted in 2008, this is the only reference in the RPCs and comments to any WSBA ethics opinion, formal or informal. Because informal opinions are advisory in nature, and because the Rules of Professional Conduct Committee intends to undertake a review of these opinions in the near future, the Committee felt that it is best to delete this reference in the RPC comments. This is a non-substantive change.

     (g) A lawyer who represents two or more clients; shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, confirmed in writing. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and the participation of each person in the settlement.

     (h) - (m) [Unchanged.]

     [27] An indigent defense contract by which the contracting lawyer or law firm assumes the obligation to pay conflict counsel from the proceeds of the contract, without further payment from the governmental entity, creates an acute financial disincentive for the lawyer either to investigate or declare the existence of actual or potential conflicts of interest requiring the employment of conflict counsel. For this reason, such contracts involve an inherent conflict between the interests of the client and the personal interests of the lawyer. These dangers warrant a prohibition on making such an agreement or accepting compensation for the delivery of indigent defense services from a lawyer that has done so. See WSBA Informal Ethics Opinion No. 1647 (conflict of interest issues under RPC 1.7 and 1.9 exist in requiring public defender office to recognize a conflict and hire outside counsel out of its budget); ABA Standards for Criminal Justice, Std. 5-3.3 (b)(vii) (3d ed. 1992) (elements of a contract for defense services should include "a policy for conflict of interest cases and the provision of funds outside of the contract to compensate conflict counsel for fees and expenses"); People v. Barboza, 29 Cal.3d 375, 173 Cal. Rptr. 458, 627 P.2d 188 (Cal. 1981) (structuring public defense contract so that more money is available for operation of office if fewer outside attorneys are engaged creates "inherent and irreconcilable conflicts of interest").

     [28] - [29] [Unchanged.]

     This suggested amendment is intended primarily to clarify the language of the Washington conflict of interest screening rule for law firm lateral hires, as well as to bring the language closer to the recently adopted language of Model Rule 1.10, which now permits such screening. Under the current version of paragraph (e), screening is triggered "when a lawyer becomes associated with a firm." This language suggests that screening is not available in a lateral hire situation if the conflict of interest arises at some point in time after a lawyer joins the new firm. The revised language in paragraph (e) clarifies that the screening provision is not so limited. The suggested amendment also corrects the typographical error in the cross-reference contained in paragraph (a) (it should be to paragraph (e) rather than paragraph (c)); amends commentary language to reflect that screening is now permitted under the Model Rule; and corrects a typographical error in a case name in Comment [11]. No substantive change to the Washington screening provision or the other aspects of the rule is intended. Note that if these changes are adopted, the year of the enactment will need to be added to the third sentence in Comment [9].

     (b) - (d) [Unchanged.]

     (e) When the prohibition on representation under paragraph (a) is based on Rule 1.9 (a) or (b), and arises out of the disqualified lawyer's association with a prior firm, a lawyer becomes associated with a firm, no other lawyer in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless:

     (1) the personally disqualified lawyer is screened by effective means from participation in the matter and is apportioned no part of the fee therefrom;

     (2) the former client of the personally disqualified lawyer receives notice of the conflict and the screening mechanism used to prohibit dissemination of information relating to the former representation;

     (3) the firm is able to demonstrate by convincing evidence that no material information relating to the former representation was transmitted by the personally disqualified lawyer before implementation of the screening mechanism and notice to the former client.

     Any presumption that information protected by Rules 1.6 and 1.9(c) has been or will be transmitted may be rebutted if the personally disqualified lawyer serves on his or her former law firm and former client an affidavit attesting that the personally disqualified lawyer will not participate in the matter and will not discuss the matter or the representation with any other lawyer or employee of his or her current law firm, and attesting that during the period of the lawyer's personal disqualification those lawyers or employees who do participate in the matter will be apprised that the personally disqualified lawyer is screened from participating in or discussing the matter. Such affidavit shall describe the procedures being used effectively to screen the personally disqualified lawyer. Upon request of the former client, such affidavit shall be updated periodically to show actual compliance with the screening procedures. The law firm, the personally disqualified lawyer, or the former client may seek judicial review in a court of general jurisdiction of the screening mechanism used, or may seek court supervision to ensure that implementation of the screening procedures has occurred and that effective actual compliance has been achieved.

     [9] The screening provisions in Washington RPC 1.10 differ from those in the Model Rule. Washington's adoption of a nonconsensual screening provision in 1993 preceded the ABA's 2009 adoption of a similar approach in the Model Rules. Washington's rule was amended and the screening provision recodified as paragraph (e) in 2006, and paragraphs (a) and (e) were further amended in 20__ to conform more closely to the Model Rules version. None of the amendments to this Rule, however, represents a change in Washington law. The Rule preserves Washington practice established in 1993 with respect to screening by allowing a lawyer personally disqualified from representing a client based on the lawyer's prior association with a firm to be screened from a representation to be undertaken by other members of the lawyer's new firm under the circumstances set forth in paragraph (e). Former Washington RPC 1.10 differed significantly from the Model Rule. This difference was attributable in part to a 1989 amendment to Model Rule 1.10 that recodified conflicts based on a lawyer's former association with a firm into Model Rule 1.9, and in part to Washington's adoption of a screening rule in 1993. Washington's Rule has been restructured to make it and Rule 1.9 more consistent with the Model Rules. The conflicts that arise based on a lawyer's former association with a firm are now addressed in Rules 1.9 (a) and (b), while Rule 1.10 addresses solely imputation of that conflict. Under Rule 1.9(a), such a lawyer need not have actually acquired information protected by Rules 1.6 and 1.9 to be disqualified personally, but because acquisition of confidential information is presumed in Washington, see, e.g., Teja v. Saran, 68 Wn. App. 793, 846 P.2d 1375 (1993), review denied, 122 Wn.2d 1008, 859 P.2d 604 (1993); Kurbitz v. Kurbitz, 77 Wn.2d 943, 468 P.2d 673 (1970), the recodification does not represent a change in Washington law. The Rule preserves prior Washington practice with respect to screening by allowing a personally disqualified lawyer to be screened from a representation to be undertaken by other members of the firm under the circumstances set forth in paragraph (e). See Washington Comment [10].

     [10] Washington's RPC 1.10 was amended in 1993 to permit representation with screening under certain circumstances. Model Rule 1.10 does not contain a screening mechanism. Rule 1.10(e) retains the screening mechanism adopted as Washington RPC 1.10(b) in 1993, thus allowing a firm to represent a client with whom a lawyer in the firm has a conflict based on his or her association with a prior firm if the lawyer is effectively screened from participation in the representation, is apportioned no part of the fee earned from the representation and the client of the former firm receives notice of the conflict and the screening mechanism. However, prior to undertaking the representation, non-disqualified firm members must evaluate the firm's ability to provide competent representation even if the disqualified member can be screened in accordance with this Rule. While Rule 1.10 does not specify the screening mechanism to be used, the law firm must be able to demonstrate that it is adequate to prevent the personally disqualified lawyer from receiving or transmitting any confidential information or from participating in the representation in any way. The screening mechanism must be in place over the life of the representation at issue and is subject to judicial review at the request of any of the affected clients, law firms, or lawyers. However, a lawyer or law firm may rebut the presumption that information relating to the representation has been transmitted by serving an affidavit describing the screening mechanism and affirming that the requirements of the Rule have been met.

     [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).

     [12] - [13] [Unchanged.]

     The purpose of this suggested amendment is to correct the language of the exception to the general rule that prohibits lawyers from disbursing funds from a trust account until deposits have cleared the banking process and have been collected. The exception applies when the bank and the lawyer agree that the lawyer will personally guarantee all deposits to the trust account, not the disbursements from it. This is a non-substantive, technical correction to the rule language.

     (h) A lawyer must comply with the following for all trust accounts:

     (1) - (6) [Unchanged.]

     (7) A lawyer must not disburse funds from a trust account until deposits have cleared the banking process and been collected, unless the lawyer and the bank have a written agreement by which the lawyer personally guarantees all disbursements from deposits to the account without recourse to the trust account.

     (8) - (9) [Unchanged.]

     (i) [Unchanged.]

     The suggested amendment proposes changing the year in the citation to Wright v. Group Health Hospital from 1994 to 1984 in comment [5], correcting a typographical error.

     [5] Washington did not adopt Model Rule 3.4(f), which delineates circumstances in which a lawyer may request that a person other than a client refrain from voluntarily giving information to another party, because the Model Rule is inconsistent with Washington law. See Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1994 1984). Advising or requesting that a person other than a client refrain from voluntarily giving information to another party may violate other Rules. See, e.g., Rule 8.4(d).

     The purpose of suggested amendments to RPC 3.8 is to define a prosecuting attorney's obligation when learning of material evidence establishing that a convicted defendant is in fact innocent. Suggested RPC 3.8 (g), (h), and (i), including new comments [7] - [9] and changes to comment [1], is attached as Exhibit A.

     The ABA modified Model Rule 3.8 in February of 2008, in response to the increasing number of science-based criminal exonerations and the gap in the ethics rules regarding the responsibilities of a prosecutor who learns of an erroneous conviction after the conviction is final. The revisions require prosecutors to take action when informed of a wrongful conviction. The underlying premise of the revisions is recognition that prosecutors have professional duties upon learning that a wrongful conviction may have occurred. Rule 3.8 has always recognized the special role of a prosecutor and the fundamental ethical duty to avoid convictions of innocent people. The inclusion of paragraphs (g) and (h) in Rule 3.8 confirms the critical importance of this obligation.

     While prosecutors would agree that correction of an erroneous conviction is the right thing to do, pressures of time and resources and other disincentives to correcting mistakes mean that credible post-conviction exculpatory evidence may be overlooked. See Daniel S. Medwed, The Zeal Deal: Prosecutorial Resistance to Post-Conviction Claims of Innocence, 84 B.U.L. REV. 125 (2004). Bringing the corrective action from a level of best practice to minimum ethical duty serves to counteract the effect of institutional inertia. It is also consistent with the statutory duty of prosecutors in Washington to "seek to reform and improve the administration of justice and stimulate efforts to remedy inadequacies or injustice in substantive or procedural law." RCW 36.27.020(13).

     In defining the professional duties of prosecutors when learning that a person has been wrongfully convicted, the suggested amendments to RPC 3.8 represent "a carefully calibrated regime that differentiates between different levels of certitude, and also regards as significant the jurisdiction in which the wrongful conviction occurred." 2 Geoffrey C. Hazard, Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering §34.10, at 34-17 (3d ed. 2009 Supp.). As discussed below, the standard for mandatory action by a prosecutor is high, and the suggested amendment contains a safe harbor based on a prosecutor's good faith exercise of professional judgment in the rule itself rather than in a comment. The rule does not represent a judgment that wrongful convictions result from prosecutorial misconduct; rather, it "assumes that prosecutors are best placed to see that justice is done, as stated long ago in Berger v. United States, 295 U.S. 78 (1935) - whether that means convicting the guilty in most of their work, or freeing the innocent in this special circumstance." Id.

     Suggested RPC 3.8(g) requires a prosecutor to make prompt disclosure to an appropriate court or authority when he or she "knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant is innocent of the offense of which the defendant was convicted." In addition, where the conviction was obtained in the prosecutor's jurisdiction, the prosecutor must also, in the absence of a court's authorization to delay, promptly disclose the evidence to the defendant, and make reasonable efforts to inquire into the matter (or alternatively make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter), in order to determine whether the defendant is innocent of the offense of which he or she was convicted. As noted in proposed comment [7], what constitutes "reasonable efforts" will depend on the circumstances.

     Suggested RPC 3.8(h) deals with the situation the prosecutor learns of clear and convincing evidence establishing that a defendant convicted in the prosecutor's jurisdiction was innocent of the offense. In such circumstances, the rule requires the prosecutor to "seek to remedy the conviction." Comment [8] clarifies that what steps are required to remedy the conviction if RPC 3.8(h) is implicated will also depend on the circumstances, and may include disclosure of the evidence to the defendant, requesting appointment of counsel for an unrepresented indigent defendant, and if appropriate, notifying the court that the prosecutor has knowledge of the defendant's innocence.

     A concern has been raised that suggested subsection (h) to RPC 3.8(h) is contrary to the adversary system of justice and fundamentally changes substantive law regarding the prosecutor's role. The ethics rules, however, recognize that there are limits to zealous advocacy in representing clients in our adversary system. See RPC 1.3, cmt. [1] (although a lawyer must act "with commitment and dedication to the interests of the client and with diligence in advocacy upon the client's behalf," lawyers are "not bound ... to press for every advantage that might be realized for a client"). These limits no doubt apply to prosecutors, who are governmental actors who have a professional obligation to do justice and serve the public generally. Imposing a duty to take action to remedy a wrongful conviction in narrowly defined circumstances in which the prosecutor knows of clear and convincing evidence establishing that a defendant convicted in the prosecutor's jurisdiction was wrongfully convicted is entirely consistent with the prosecutor's role and should be included in the rule.

     Suggested RPC 3.8(i) provides a safe harbor, clarifying that a prosecutor does not breach the rules of professional conduct, and will not be disciplined, based on the prosecutor's "independent judgment, made in good faith, that the evidence is not of such nature as to trigger the obligations of paragraphs (g) and (h) of [Rule 3.8]."

     Comparison with Model Rule. The proposed version of suggested RPC 3.8 (g), (h), and (i) contains some significant changes from the Model Rule version. A redlined draft showing the changes from the Model Rule is attached as Exhibit B. These revisions resulted in large part from input received from several interest groups. The major differences between suggested rule amendments and the Model Rule are as follows:

     First, throughout the rule, the suggested Washington version uses the term "innocent of the offense" rather than "did not commit an offense" in describing the status of the convicted defendant triggering the prosecutor duties. This change was made based on the Washington Association of Prosecuting Attorneys' (WAPA) concern that the "did not commit" language may be interpreted far more broadly than "innocent," and that the "did not commit" language might be used to raise issues about the statutory definition of a crime (including the extent of accomplice or conspirator liability and degrees of culpability), application of evidentiary rules, or sentencing considerations of aggravating/mitigating factors. This change clarifies, therefore, that the focus of this rule is on the convicted defendant's actual innocence, not on extenuating and peripheral circumstances or statutory/evidentiary legal distinctions.

     Second, in subsection (g), the language has been changed to clarify that "reasonable efforts" to inquire into the matter or to cause the appropriate law enforcement agency to undertake an investigation will be sufficient when the conviction was obtained in the prosecutor's jurisdiction. By its terms, the proposed subsection imposes a duty on a prosecutor to undertake further inquiry or cause a law enforcement agency to undertake an investigation only if and to the extent such efforts are reasonable under the circumstances.

     Finally, although the "good faith judgment" safe harbor is only a comment to Rule 3.8 (#9) in the revised Model Rules, the suggested amendment includes the provision in the rule itself (as subparagraph (i)) so that there is no question regarding the binding effect of the provision in charging disciplinary violations and in imposing disciplinary sanctions in these circumstances.

     (a) - (f) [Unchanged.]

     (g) when a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant is innocent of the offense of which the defendant was convicted, the prosecutor shall:

     (1) promptly disclose that evidence to an appropriate court or authority, and

     (2) if the conviction was obtained in the prosecutor's jurisdiction,

     (A) promptly disclose that evidence to the defendant unless a court authorizes delay, and

     (B) make reasonable efforts to inquire into the matter, or make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter, to determine whether the defendant is innocent of the offense of which the defendant was convicted.

     (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant convicted in the prosecutor's jurisdiction was innocent of the offense, the prosecutor shall seek to remedy the conviction.

     (i) A prosecutor's independent judgment, made in good faith, that the evidence is not of such nature as to trigger the obligations of paragraphs (g) and (h) of this Rule, though subsequently determined to have been erroneous, does not constitute a violation of this Rule.

Comment

     [1] [Washington revision.] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence., and that special precautions are taken to prevent and to rectify the conviction of innocent persons. Precisely how far the prosecutor is required to go in this direction The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal Justice Relating to the Prosecution Function, which in turn are the product of prolonged and careful deliberation by lawyers experienced in both criminal prosecution and defense. Competent representation of the government may require a prosecutor to undertake some procedural and remedial measures as a matter of obligation. Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.

     [2] - [6] [Unchanged.]

     Additional Washington Comments (7 - 9)

     [7] [Washington revision.] When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a person outside the prosecutor's jurisdiction was convicted of a crime that the person is innocent of committing, paragraph (g) requires prompt disclosure to the court or other appropriate authority, such as the chief prosecutor of the jurisdiction where the conviction occurred. If the conviction was obtained in the prosecutor's jurisdiction, paragraph (g) requires the prosecutor to make reasonable efforts to inquire into the matter to determine whether the defendant is in fact innocent, or make reasonable efforts to cause the appropriate law enforcement agency to undertake an investigation into the matter, and to promptly disclose the evidence to the court and, absent court-authorized delay, to the defendant. "Reasonable efforts" under paragraph (g) will depend on the circumstances. Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a defendant who the prosecutor knows is represented by counsel in the matter must be made through the defendant's counsel, and, in the case of an unrepresented defendant, may be accompanied by a request to a court for the appointment of counsel to assist the defendant in taking such legal measures as may be appropriate.

     [8] [Washington revision.] Under paragraph (h), once the prosecutor knows of clear and convincing evidence establishing that a defendant convicted in the prosecutor's jurisdiction was innocent of the offense, the prosecutor must seek to remedy the conviction. Necessary steps will depend on the circumstances, and may include disclosure of the evidence to the defendant, requesting that the court appoint counsel for an unrepresented indigent defendant and, where appropriate, notifying the court that the prosecutor has knowledge that the defendant is innocent of the offense of which the defendant was convicted.

     [9] [Reserved. Comment [9] to Model Rule 3.8 is codified, with minor revisions, as paragraph (i).]

     Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

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