This winter, many of the presidential debates have sounded like family arguments. The candidates have insulted each other and made numerous false and outrageous statements. The voting public is left as the judge and jury to decipher the different allegations, proposals and character of the participants without the benefit of RPCs for politicians.
RPCs (Rules of Professional Conduct) are adopted by each state based on the ABA recommendations. The RPCs are meant to guide attorneys in conduct that is proper for the courtroom and the legal system, and they are enforceable by sanctions, including disbarment.1 It would be wonderful if politicians had the same requirements for ethical conduct, but unfortunately they only have journalists to track their credibility.
Our legal system is based on law and fairness, justice and equality. However, many court litigants, especially in family law, may feel that the legal system is not just and fair. Washington has a Committee on Professional Ethics (CPE), which issues advisory opinions to address recurring or emerging ethics issues facing Washington attorneys. The advisory opinions cover a broader range of topics and provide members with in-depth guidance on the RPCs as applied to a practice area.
The CPE also plays a key role in the review and suggestion of potential amendments to the RPCs. Washington has added additional comments to the RPCs that are official comments and these should be read in conjunction with the rules for guidance.
One difference in the RPCs from the previous ABA model rules is that the model rules and Washington’s RPCs removed the word “zealous” in the description of a lawyer’s advocacy for their client and replaced it with the terms “commitment and dedication to the interests of the client and with diligence in advocacy.”2 There is a huge difference between an attorney flapping his/her arms in zealous representation and an earnest, ardent argument.
Each and every attorney should be familiar with the RPCs to guide their conduct both in their practices and in their private lives. According to the most recent report for Washington, in 2014 there were 2,165 grievances with 30,226 active lawyers. Of these, 20 percent of the complaints were about family law practitioners.3 The only type of practice that received more complaints was criminal law with 28 percent of all grievances.
The most common complaints were: personal behavior (20%); interference with justice (21%); and unsatisfactory performance (33%). The sources of grievances filed were: client (19%); former client (26%); and opposing party (24%). In 2014, there were 15 disbarments, 34 suspensions, 8 resignations in lieu of discipline, 11 reprimands, and 3 admonitions for a total of 71 disciplinary actions.
We spoke with Jeanne Marie Clavere, professional responsibility counsel, Office of General Counsel of the Washington State Bar Association, about the most common mistakes that a family law practitioner could make. Clavere’s comments are not the official or unofficial position of the WSBA and are presented only as a resource to bar members.
Defining boundaries and scope of representation: Clavere stated this was a common issue for some lawyers. RPC 1.2, Scope of Representation and Allocation of Authority Between the Client and Lawyer, applies here.
The client has the authority to make decisions about the objectives of representation. However, Clavere warned that she has spoken to attorneys where some clients attempt to manipulate their attorney and seek to use them as a litigation weapon. It is up to the lawyer to navigate the ethical issues and inform their client when the client’s request is unethical.
Clients normally defer to the special knowledge and skill of their lawyer with respect to the legal tactics and strategy to accomplish their objectives, and it is up to the client to make the decisions about costs and expenses to be incurred. However, if there are disagreements or questions, the lawyer should consult with the client and seek a mutually acceptable resolution of the disagreement.
The lawyer has to be careful and withdraw if the client wants the attorney to violate the RPCs. Not every client is expected to be cooperative. It is up to the attorney to structure the communication with the client and honor the rule that the client has the decision-making authority (within ethical limits) on the objectives of the litigation.
Of course, an attorney cannot counsel a client to commit a crime or a fraudulent act and should be very careful if the client’s actions are crossing the line.4
Withdrawal and substitution of counsel: A client who is currently represented may decide to change attorneys and prior counsel receives a notice of withdrawal and substitution from the new attorney for his/her signature. It is a concern if the prior attorney refuses to sign the notice and/or will not cooperate in the transfer of the client file.
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