By Ross Farr

All Washington lawyers should be aware that the Rules of Professional Conduct (RPC) are likely to change soon. The WSBA Board of Governors recently submitted suggested amendments to the RPC to the Washington State Supreme Court for adoption.

These proposed changes have already been published for comment and the comment period closed on April 29. They are the most significant proposed changes to the RPC since the rules were adopted in 1985. Historically, the Supreme Court has usually adopted the WSBA's recommended changes, so these proposed amendments are likely to be adopted as well, which could happen by the time this article goes to print.

The proposed changes would bring Washington in line with a majority of states in adopting the most recent American Bar Association (ABA) Model Rules, with some modifications. Significant proposed changes¹ to the RPC include:

• Adopting the official Comments included in the ABA Model Rules, with some revisions.
• Requiring that contingent fee agreements be signed by the client and applying the "reasonableness" standard under RPC 1.5 to expenses charged to the client, as well as fees.
• Adding new exceptions to the duty of confidentiality under RPC 1.6 that would permit disclosure "to prevent reasonably certain death or substantial bodily injury" and "to prevent the client from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services."
• Defining in RPC 1.13 a lawyer's obligation when representing an organization and learning that an officer or employee of the organization is violating, or intends to violate, the law.
• Adding rules governing the sale of a law practice, a lawyer's duties to a prospective client and a lawyer's duties when serving as a neutral third party.
• Requiring a lawyer who had actual knowledge of a client's offer of false material evidence to take immediate remedial measures, including disclosure to the tribunal under RPC 3.3.
• Making reporting of the ethical misconduct of other members of the bar under RPC 8.3 mandatory.
• Addressing the multijurisdictional practice of law under RPC 5.5 and 8.5.

The most immediately noticeable of the proposed changes is the adoption of the official Comments. When the Washington Supreme Court adopted the ABA Model Rules in 1985, it declined to adopt the Comments. Since then, however, the court has looked to the ABA Comments for interpretive guidance in its opinions on lawyer misconduct.²

In its written ethics opinions, the WSBA Rules of Professional Conduct Committee also cites to the Comments as instructive. Given this reliance on the Comments, official adoption of the Comments would provide fair notice of the WSBA's and the court's reliance on the Comments, as well as making them more readily available.³

The WSBA Board of Governors charged the WSBA Ethics 2003 Committee with conducting a thorough examination of the most recent ABA changes to the model rules. The ABA suggested that states adopt the Model Rules in order to create more uniformity between states.⁴ "[T]he WSBA Ethics 2003 Committee, in general recommended adoption of the Model Rules, together with the associated commentary, unless there was a compelling and articulable reason for deviation."⁵

There was one significant change between the committee's proposed rules changes and those approved by the Board of Governors. While the committee recommended not adopting the mandatory reporting requirement in Model Rule 8.3, the board voted 7-4 to adopt the model rule.⁶

The proposed adoption of the Comments also has not been without controversy. During the public comment period, the Supreme Court Rules Committee "heard from several attorneys who voiced concerns that the comments were so long they swallowed the rules" and that "the comments appear to be substantive in nature."⁷ The Supreme Court Rules Committee responded by asking the Ethics 2003 Committee to reexamine the adoption of the Comments to the rules.

In response, the committee confirmed its unanimous recommendation to adopt the Comments, noting that the Comments would foster fairness, uniformity and clarity. The committee believed that most lawyers would welcome them, the negative comments notwithstanding.⁸

Further information about all of the proposed amendments to the RPC, including the process by which they were developed and downloadable versions of the proposed rules, can be found on the WSBA web site: http://www.wsba.org/lawyers/groups/ethics2003/default.htm.