Opinion 1647

The Committee reviewed your inquiry regarding the potential for conflict of interest in entering into a contract in which the public defender office would administer a list of conflict attorneys to be designated by the defender office and paid out of the defender office budget. The Committee noted that public defenders and public defender agencies are held to the same ethical criteria as private lawyers and/or private law offices. The Committee was of the opinion that the proposed contract language raises conflict of interest issues under RPC 1.7 and 1.9 in requiring the defenders office to recognize a conflict and hire outside counsel out of their budget to provide representation. The Committee thought the situation was analogous to that discussed in Tank v. State Farm Insurance 105 Wn. 2nd 381 (1986).

The Committee was also of the opinion that such a plan would raise issues under RPC 1.8(f) in that the public defender could not require that outside attorney to supply confidential information from the client to the public defenders office nor, even for the purposes of reviewing billing, provide information that would reveal trial strategy, work product, or confidences or secrets where the public defender is representing a potential adverse co-defendant.

The Committee thought there might be other ethical issues raised by such an agreement as well, and wishes to review the entire contract.

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.