Advisory Opinion: 1889

Year Issued: 1999

RPC(s): RPC 8.4(a)

Subject: Responding to opposing counsel's arguments about ethical duties

The inquirer asked for guidance in situations where [a prosecutor] is required to begin competency procedures against a charged criminal defendant.

The issue concerns a lawyer’s argument that is unethical for him to accept an assignment from the court to represent a criminal defendant alleged to be mentally incompetent. The lawyer is asserting that due to the defendant’s disability, the defendant is unable to personally "consent" to the lawyer receiving compensation through an indigent defense program, citing RPC 1.8(f), and for the same reason, cannot "authorize" the lawyer’s actions on his behalf, citing RLD 1.1(d).

The question posed is: Is it ethical for the government lawyer to oppose the assigned lawyer’s argument and thereby argue to the court that such an assignment is ethical and would not violate the assigned lawyer’s duties and obligations under the RPC’s?

It is the position of the RPC Committee that a lawyer may raise and argue ethical issues to a tribunal and that such conduct is not a violation of RPC 8.4(a).

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.