Opinion 1640

[Note that this is an informal opinion of the Rules of Professional Conduct Committee of the Washington State Bar Association. Informal opinions are issued by the Committee pursuant to authorization from the WSBA Board of Governors but they have not been individually approved by the Board and do not reflect the official position of the Association. An informal opinion is provided for the education of the Bar and reflects the opinion of the Rules of Professional Conduct Committee. All of the following were adopted unanimously unless otherwise noted.]

A. Duties to Existing Clients

Ethical Query No. 1: Where a legal services program anticipates funding reductions in an amount that would jeopardize the program’s ability to effectively represent clients on existing legal matters, are the expectations set out in ABA Formal Opinion 347 consistent with an attorney’s ethical duties under Washington’s Rules of Professional Conduct insofar as they relate to:

(i) The legal services program’s obligation to notify clients of its anticipated inability to complete representation in these pending matters;

Opinion: Yes. RPC 1.1; 1.4; 5.1(b); and 5.2(b).

(ii) The legal services program’s duty to withdraw or seek to withdraw from client matters that it anticipates an inability to provide continuing competent legal representation within the meaning of RPC 1 .1, including those cases where leave of a tribunal to withdraw is required before withdrawal can be effective?

Opinion: Yes. RPC 1.1; 1.3; 1.15(a)(1).

Ethical Query No. 2: In those cases where leave of a tribunal to withdraw is required before withdrawal can be effective, what standard should the tribunal apply
to requests from a legal services attorney for leave to withdraw resulting from the attorney’s inability (and that of the program with which the attorney is associated) to provide ongoing competent representation as a result of substantial budget and staffing reductions?

Opinion: No opinion because question concerns conduct of tribunal. Any inquiry should be directed by a judge to the Ethics Advisory Committee through the Office of the Administrator for the Courts.

Ethical Query No. 3:

(i) In those cases where leave of a tribunal to withdraw is required and requested, but is not granted, does RPC 1 .1 5(c) require a legal services attorney to continue to represent a client at the attorney’s own expense, even though the attorney reasonably believes that he/she is unable to provide ongoing competent legal representation?

Opinion: No. The client is a client of the legal services office. A lawyer departing from a legal services office has no ongoing obligation to represent the client. A lawyer continuing to be employed by the legal services office can look to that office for reimbursement for wages and expenses. See ABA Formal Opinion 347 at p. 801:110, Part II; pp 801:111-113, Part III; and RPC 1.15(b)(5).

(ii) In such circumstances, does the attorney have an ethical duty to disclose to the client the fact that the attorney lacks the resources, including but not limited to professional liability insurance, to competently represent the client in the pending matter?

Opinion: See above 3(i). If the lawyer could not competently represent the client, the lawyer must seek to withdraw. RPC 1.15(a)(1).

(iii) Will the attorney’s inability to provide competent representation subject that attorney to disciplinary sanctions for violating RPC 1 .1?

Opinion: While the Committee cannot speak for the Disciplinary Board, in its opinion it would depend upon the facts and circumstances of each case. If an attorney had properly sought to withdraw and, after making the tribunal aware of the consequences of denying the withdrawal, the tribunal ordered the attorney to continue the representation, and if the attorney took all other steps to accommodate the denial’s effect upon his or her caseload, then it would seem that the attorney were acting in good faith in complying with a court order and should not be subject to discipline. See, RPC 1.15(c).

(iv) And, does the legal services program have a duty to continue to underwrite the cost of professional liability insurance during the duration of time that the former staff attorney is required by the tribunal to continue representation undertaken while employed by the legal services program?

Opinion: This is a question of employment or contract law, and not an ethics question.

Ethical Query No. 4: In those cases where leave of a tribunal to withdraw from representation is required, does the tribunal have a duty to stay proceedings for a time sufficient to allow the withdrawing legal services attorney to actively seek substitute legal counsel for the client on behalf of whom the legal services attorney has appeared? If the tribunal determines that immediate and substantial prejudice will be caused by the attorney’s withdrawal, may the tribunal require the attorney to continue representation for a limited duration of time?

Opinion: Does not involve an ethical question under the RPCs.

Ethical Query No. 5: In the event that substantial budget reductions force the closure of a legal services office, does the presiding judge of the local superior court have implicit authority under CJC 1, CJC 3, RPC 6.1, and RPC 6.2 to assume control of the legal services office’s ongoing cases and assign them to private counsel to complete representation?

Opinion: Does not involve an ethical question under the RPCs because question concerns conduct of tribunal. Any inquiry should be directed by a judge to the Ethics Advisory Committee through the Office of the Administrator for the Courts.

Ethical Query No. 6: Is it a conflict of interest within the meaning of RPC 1 .8(f)(2) for an attorney to pursue funding from, or contract with, a third party where the receipt of funding from the third party is conditioned upon the program’s (or attorney’s) agreement to withdraw from representation of, and sever relationships with, certain clients on whose behalf the program (or attorney) has undertaken to provide legal advice, counsel or representation? (Cf. RPC 1 .7(b)).

Opinion: This inquiry is now moot and the Committee rendered no opinion on it.

B. Limiting the Scope of Client Representation/Compromising Client Claims
Ethical Query No. 7: Under RPC 1 .2, may a legal services program (or any attorney) enter into a contract the effect of which is to prevent the program (or attorney) from pursuing all claims and defenses that may be required to effectively represent the client’s interest or achieve the client’s objectives?

Opinion: Unless the lawyer cannot represent the client competently, the lawyer and client can agree to limit the scope of the representation. RPC 1 .2 (c).

Ethical Query No. 8: Do RPC’s 1 .8(f)(2), 5.4(c) and 5.4(d)(3) operate to prohibit an attorney from accepting funds from a third party to represent a client or class of clients where the third party demands the attorney’s categorical agreement not to raise certain classes of claims or defenses, or to undertake certain legal strategies otherwise authorized and allowed by applicable law and court rules?

Opinion: To the extent that the agreement with a third party places restrictions on the subject matter of representation, it would not be a per se violation of the RPCs. However, if restrictions on either the subject matter restriction; or on the scope of representation which limits the ability to raise certain classes of claims or defenses, or to undertake certain legal strategies otherwise authorized and allowed by applicable law and court rules within the subject matter of the representation; would cause a lawyer to render incompetent representation or would interfere with the lawyer’s independent professional judgment, representation subject to such restriction would violate RPC 1 .1, 1 .8, and 5.4. Examples of such restrictions that would violate these rules are restrictions that would result in imposing upon the client(s) a permanent inability to raise statutory or constitutional issues that might otherwise be raised, or where timing is such that there is no time to refer the client to other counsel for representation on the matter so restricted. The vote on this was 19 to 2.

Ethical Query No. 9: Do RPC’s 1 .8(f)(2), 5.4(c) and 5.4(d)(3) operate to prohibit an attorney board member of a legal services program from applying for or accepting funds from a third party to represent program clients where the third party demands the program’s categorical agreement not to raise certain classes of claims or defenses that may arise in high priority cases, or the program’s agreement not to undertake certain legal strategies otherwise authorized and allowed by applicable law and court rules?

Opinion: No. Unless the attorney board member were representing individual clients of the legal services program, RPC 1 .8(f)(3) and 5.4(c) would not apply. And unless the legal services program were practicing law for a profit, RPC 5.4(d)(3) would not apply.
C. Pre-litigation Disclosure of Client Identity and Understanding of the Case/Waiver of Attorney Client Privilege

Ethical Query No. 10: Does compliance with the requirement that client identities be disclosed to third parties without the protection of confidentiality violate an attorney’s obligation to protect client confidences and secrets -- including client identities -- under RPC 1.6 and RPC 1 .8(f)(3), as such obligation has been clarified by WSBA Formal Opinion 183 (1990), particularly where disclosure might subject such clients to harassment, intimidation, embarrassment or other emotional consequences?

Opinion: It would depend upon the facts of the case. A legal service office may not disclose information to third parties which would disclose or lead to disclosure of confidences or secrets of clients without the informed consent of the client pursuant to RPC 1 .6. WSBA Formal Opinion 183 (1990). That opinion goes on to note that "[i]t is important to understand the distinction between ‘confidence’ and ‘secret’." "Confidence" is "information protected by the attorney-client privilege under applicable law." "Secret" is "[o]ther information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." RPC Terminology. As a general rule, a client’s identity is not protected by the attorney-client privilege. Seventh Elect Church v. Rogers, 102 Wn.2d 527, 531 P.2d 506 (1984). However, there may be cases where disclosure of a client’s identity might be "embarrassing or would be likely to be detrimental to the client," in which cased the lawyer would be obligated to protect that secret, unless the client consented to disclosure

Ethical Query No. 11: Would the statement required to be executed under provisions of the House Appropriations Act
constitute a confidence or secret the confidentiality of which must be maintained under RPC 1 .6?

Opinion: It would depend upon the facts of the case. A lawyer is obligated to protect client confidences and secrets from disclosure, unless consented to by the client. RPC 1 .6. As described in the inquiry letter, the required statement might contain confidences or secrets, depending upon what the particular facts . . . on which the complaint is based” contained.

Ethical Query No. 12: Would acceptance of funding conditioned upon an attorney’s agreement to divulge information otherwise protected from disclosure by the attorney-client privilege, RPC 1 .6, the work product doctrine, or other statutory
prohibitions on the disclosing the identity of certain types of litigants in certain types of cases (e.g., juveniles, persons subject to civil commitment or guardianship proceedings, or other persons without legal capacity), violate an attorney’s ethical duties under the Rules of Professional Conduct?

Opinion: A lawyer may not accept funds conditioned upon disclosure of information protected from disclosure by RPC 1 .6 unless the client consents to the disclosure.

Ethical Query No. 13: Under the Rules of Professional Conduct, may an attorney establish, as a condition precedent to representing a client on a legal claim, a requirement that the attorney’s client waive the attorney-client and attorney work product privilege?

Opinion: No. See answers 7, 8, and 12 above. The vote on this was 21 to 1.

D. Class Actions

Ethical Query No. 14: When an attorney represents a client (or clients) on a legal matter that the attorney believes would be best pursued through a class action and when, in the professional judgment of the attorney, failure to pursue such a form of pleading could very well expose the client to potential inconsistent, competing or inadequate judgments, would a third party funding restriction prohibiting the attorney from filing a class action require the attorney withdraw from representation of the client (or clients)?

Opinion: Yes. See 7 and 8, above. The vote on this was 21 to 1.

Ethical Query No. 15: Would acceptance of funding conditioned upon an attorney’s categorical agreement not to pursue class actions against governmental entities --even where the attorney reasonably believes such a course of action would best achieve the client’s objectives and no other counsel is available -- constitute an agreement by which the attorney allows a third-party nonlawyer to interfere with his/her independent professional judgment in violation of RPC 1 .8(f)(2), RPC 5.4(c) or RPC 5.4(d)(3)?

Opinion: Yes. See 7 and 8, above. The vote on this was 21 to 1.

Ethical Query No. 16: Would an attorney’s categorical inability to seek class relief
create potential conflicts of interest between and among all members of a potential (albeit uncertified) class such that RPC 1 .7(b) would require that attorney to decline representation in all cases on behalf of all clients in which issues that would be most expeditiously and effectively addressed through a class action are raised?

Opinion: This inquiry was withdrawn and the Committee rendered no opinion on it.

E. Prohibitions on Legislative and Administrative Representation Ethical Query No. 17:

(i) When a legal services attorney reasonably believes that competent representation would require pursuit of a legislative or administrative strategy on behalf of an existing client, or that failure to undertake such a strategy might prejudice the client’s ability to obtain the objectives of the representation, and where the attorney is categorically prohibited from pursuing such representation on behalf of the client, do RPC’s 1.1, 1.2, and 1.15(a)(1) impose on such a legal services attorney a duty to withdraw from representation of the client? (Cf. RPC 1 .8(f)(2)).

Opinion: If representation would be rendered incompetently, RPC 1.1, 1.2, and 1 .1 5 require the lawyer to withdraw.

(ii) In such a case, what is the attorney’s duty to disclose the possible legislative or administrative strategy to the client?

Opinion: The lawyer has a duty to advise the client to the extent reasonably necessary to permit the client to make informed decisions. RPC 1 .2, 1 .4, 1 .1 5.

Ethical Query No. 18: (i) Under RPC 1.1, RPC 1.2(a), and RPC 1.8(f)(2), may an attorney accept employment conditioned upon the attorney’s agreement not to represent any client before a legislative or administrative tribunal regardless of whether such representation would be a reasonable and appropriate means of pursuing the client’s objectives, or (ii) that appearance before a legislative or administrative body would be a necessary condition precedent to undertaking litigation to pursue the client’s objectives?

Opinion: As to part (i), yes. As to (ii), no, assuming that appearance before such a body is a condition precedent. See RPC 1 .1.
Ethical Query No. 19: Is it a violation of RPC 1.8(f)(2), RPC 5.4(c) or RPC 5.4(d)(3) for an attorney to seek and accept funding from a third party (or be employed by a corporation that accepts funding from a third party) when such funding is conditioned upon the attorney’s agreement not to represent clients before a legislative or administrative tribunal, regardless of whether the attorney reasonably believes that in any specific client matter such representation would be a reasonable and appropriate means of pursuing the client’s objectives, or that appearance before a legislative or administrative body would be a necessary condition precedent to undertaking other advocacy in pursuit of the client’s objectives.

Opinion: No, but see 7 and 8, above, with regard to representation on a specific client matter. The vote on this was 21 to 1.

F. Cumulative Potential Impact on the Scope of Client Representation

Ethical Query No. 20: Given the likelihood that, during the course of representing any given client, an LSC-funded attorney will find it appropriate to suggest one or more approaches or strategies prohibited by LSC funding restrictions, does that attorney have a duty to inform all clients, at the time their cases are accepted for representation, of (i) the existence and scope of such funding restrictions, (ii) the potential impact that the restrictions might have on the ability of the attorney to provide effective, competent representation, and (iii) the client’s right to secure other counsel whose representation would not be so limited?

Opinion: Upon undertaking representation of a client, a lawyer must inform the client of all relevant restrictions that might affect the representation, and if the restrictions would cause the lawyer to violate RPC 1.7(b), the lawyer must withdraw. RPC 1.4(b), and 1.2 (c) and (e).

Ethical Query No. 21: Given the likelihood that, during the course of representing any given client, an LSC-funded attorney will find it appropriate to suggest one or more approaches or strategies prohibited by LSC funding restrictions, would it be consistent with RPC 1 .2(c) for that attorney, at the outset of representation, to obtain a blanket client authorization to raise only those claims and employ only those strategies allowed under LSC funding legislation?

Opinion: No, a blanket waiver would not comply with RPC 1.2(c). The vote on this was 18 to 4.