Advisory Opinion: 970

Year Issued: 1986

RPC(s): RPC 3.8(a); RCW 10.95.040

Subject: Probable cause; death penalty proceedings

After considerable discussion regarding your inquiry, the Committee reached the tentative opinion that the requirement in RCW 10.95.040 that a prosecuting attorney file notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed "when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency" is the equivalent of the requirement in RPC 3.8(a) that a prosecutor "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." The Committee did agree that the language in both the statute and the rule, each using negative clauses, was confusing. They wish me to advise you that if you disagree with the Committee's conclusion and want to submit your own analysis of the statute and the rule, the Committee would reconsider this matter.

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.