Advisory Opinion: 2010

Year Issued: 2003

RPC(s): RPC 4.2

Subject: public defender, communication with represented parties

The inquirer asked:

(1) Whether a public defender who is representing a client on a matter before a court may represent the same client on a different and unrelated matter before the same court when the client consents to the public defender’s representation on the record, but a different attorney had been assigned to represent the client on the second matter?

(2) Whether the public defender must contact the client’s attorney on the second matter before asking for the client’s consent to the public defender representing the client on the second matter when the second matter is being heard by the same court as the first matter?

The committee opined the following:

(1) A public defender may represent a client on more than one matter if the client consents to such representation and the public defender is competent to represent the client on each matter.

(2) The Rules of Professional Conduct do not require the public defender to contact the attorney assigned to represent the client on the second matter prior to discussing such representation with the client.

The committee’s opinion is based on the following:
Some courts may enter into agreements to hear matters such as release or bail issues that are before other courts. A client who has more than one matter pending in more than one court may have more than one attorney assigned to handle each of the matters. Because of the authority given to a court to adjudicate a matter that did not originate in that court, the assigned counsel for each matter may not be present when all of the client’s matters are adjudicated.

DISCUSSION

A. A public defender may represent a client on more than one matter if the client consents.

There is nothing in the Rules of Professional Conduct that prohibits a public defender from representing a client on more than one matter if the client consents so long as the public defender meets the requirements for representation in RPCs 1.1 (competence), 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication), 1.6 (confidentiality), 1.7 and 1.8 (conflicts of interest) and 1.13 (disability).

State of Washington Ethics Advisory Opinion 02-22 implicitly recognizes that a client who is represented by counsel on a matter may nevertheless choose to represent himself pro se on the same matter. The opinion holds that a judge will not violate the Code of Judicial Conduct by accepting such representation. The judge need only make it known on the record that (1) the judge is aware of the representation and (2) that the defendant has chosen to waive his right to counsel.

B. A public defender undertaking to represent a client on more than one matter need not contact the client’s assigned attorney before doing so.

RPC 4.2 regulates an attorney’s communications with a party known to be represented by counsel. However, RPC 4.2 is not implicated here as the purpose of RPC 4.2 is to prevent improper contact with an opposing party represented by counsel. RPC 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

RPC 4.2 is meant to prohibit communication with a represented party about a “matter” if an attorney has an interest in the “matter” (i.e., has an interest in the matter or represents a party with an interest in the matter that is opposite to that of the represented party.) If the attorney seeks to communicate with a party about a matter and the attorney clearly has no interest whatsoever in the matter upon which he seeks to communicate, then such communication would not be prohibited by RPC 4.2. See Wright v. Group Health Hospital, 103 Wash.2d 192, 197 (1984); see also Barrie Althoff, Ethics and the Law: Communicating With Represented Persons (2000).

Because the public defender is not adversarial to the client, RPC 4.2 does not prohibit the public defender from communicating with the client about the second matter even though the client is represented by different counsel.

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.