Opinion 2194

I. Background/ Facts

Inquiry # 2194 is a request by a defense counsel regarding the County Prosecutor’s policies concerning “early” plea offers.

Inquiry # 2194 describes the early plea unit (EPU) program adopted by the County Prosecutor’s Office as limiting a defendant’s review of discovery materials as a condition for an early plea offer. The EPU program makes plea bargain offers to defendants quickly after cases are filed, often before arraignment occurs. The prosecutor’s stated purposes for this program are to: 1) recognize and reward defendants who take responsibility for their actions; 2) encourage defense counsel to meet face-to-face with their clients to discuss the discovery rather than merely providing a copy; 3) focus limited EPU resources on negotiations rather than reviewing redactions; and 4) treat requests for reviewing redactions consistently. The Prosecutor’s Office has stated they will revoke an EPU plea offer if a defendant receives a copy of redacted discovery. Compare CrR 4.7(h)(3) (establishing rules for obtaining approval of redactions before passing discovery information to defendants).

The inquiring attorney contacted the RPC Committee for advice as to whether she can comply with the EPU restrictions on plea offers and still comport with her obligations under the Rules of Professional Conduct.

II. Questions Presented

Inquiry # 2194 specifically asks: Under the RPCs, can I ethically plead my client guilty under these circumstances? When my client is wishing for additional information to make a decision, can I ethically attempt to conduct an investigation and speak to the witnesses involved and/or provide my client with redacted discovery even though it may result in the loss of an offer which my client is interested in? May I attempt to provide my client with redacted discovery and conduct an investigation which would involve speaking to witnesses without the knowledge of the state in order to try to preserve any offers or avoid any amendments?

III. Analysis and Applicable RPCs

Fundamentally, a lawyer has obligations under the RPCs to represent a client competently (RPC 1.1) and consistently with the directions and decisions of the client (RPC 1.2). In performing those functions, the lawyer must communicate with the client at times and in manners sufficient to enable the client to make decisions and participate in the representation (RPC 1.4). These principles outline the proper response to Inquiry # 2194 and should guide the conduct of the inquiring attorney.

Applicable Rules and Comments.

RPC 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Comment [5] to RPC 1.1 elaborates:

Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake…

RPC 1.2 Scope of Representation Between Client and Lawyer
(a) …A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

Comment [1] to RPC 1.2 elaborates:

Paragraph (a) confers upon the client the ultimate authority to determine the purpose to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. See Rule 1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions…

RPC 1.4 Communication
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information…

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Comments to RPC 1.4 provide further clarity:

[1] Reasonable communication between the lawyer and the client is necessary for the client effectively to participate in the representation.

[2] If these Rules require that a particular decision about the representation be made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and secure the client’s consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take. For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless that client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer. See Rule 1.2(a).

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[5] The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so. Adequacy of communication depends in part on the kind of advice or assistance that is involved. For example, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement…

Circumstances Presented.

The situation presented by Inquiry # 2194 entails circumstances where the Prosecutor’s plea bargain offer is contingent upon a defendant’s decision to accept the offer in advance of being fully or even partially informed about all possible facts, arguments or explanations, including information that is normally required to be provided to defendants. The plea bargain offer is expressly intended to facilitate a prompt resolution of matters where defendants desire such a result.

It is not unusual for cases to be resolved in advance of full and complete disclosure of all possibly relevant facts. Indeed, the justice system would be enormously burdened if complete disclosure were always required in all cases in advance of any resolution. The lawyer’s duty in such instances is to explain the nature of the offer sufficiently to allow the client to make a decision whether to accept the plea bargain offer or not. Such explanation could include any limitations on information known or possessed by the defense or prosecution, as well as any impacts upon the possible ultimate resolution of the matter. For example, in In Re Disciplinary Proceeding Against Longacre, 155 Wash.2d 723, 122 P.3d 710 (2005), the attorney was disciplined for failure to communicate plea bargain offers to his client at times and in manners sufficient to “empower his client with the ability to accept or reject pleas offers by failing to adequately inform him of the offers and the penalties he faced if he were to go to trial.” Longacre, at 740. The lawyer’s problem was not caused by whether the offer was “good” or not; rather, the lawyer’s problem was caused by a failure to communicate to the client the nature of the offer adequately to assure understanding of the opportunities and risks presented by the offer. Thus, if the inquiring attorney believes that the client should consider seeking additional discovery, that is one of the topics that should be covered with the client before the client makes a decision. Similarly, if a risk posed by additional discovery (whether formal or informal) is the withdrawal of the offer, that issue too should be discussed with, and decided by, the client.

Ultimately, of course, pursuant to RPC 1.2(a), the lawyer “shall abide by a client’s decision, after consultation with the lawyer, as to a plea to be entered…” To engage in that consultation, the lawyer must employ “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” RPC 1.1. It is a lawyer’s duty to provide the client with necessary information and to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” prior to entering a plea on the client’s behalf. RPC 1.4(b).

IV. Recommendation

In summary, Inquiry # 2194 asks whether plea bargain offers can be competently evaluated without providing redacted discovery to a client; asks whether a separate defense investigation would be required or permitted in making such an evaluation; and asks whether a proper response to an EPU plea bargain offer would be to provide a client with redacted discovery despite the Prosecutor’s express policy of withdrawing offers if that occurs. The answer in each instance is to communicate the details, scope and restrictions tied to the EPU plea bargain offer to the client, and to abide by the client’s decision to accept the offer, to reject the offer, or to engage in other discovery efforts, after the client is fully informed of the risks or benefits of each such choice.

We also note that the scope of permitted discovery, or limitations on provision of permitted discovery, or other rules related to pleas are outside the purview of the RPC Committee.