If I am buying or selling a law practice, what are some of my ethical obligations?

What should I do if I learn my client committed perjury?

What should I do when I feel my client lacks the ability to make decisions or the client’s ability to do so is deteriorating?

What do I do with unclaimed trust account funds?

If communications with my client are going poorly, can I withdraw from the representation? If so, when can I withdraw?

How long do I need to keep closed client files?

What files and information do I give to my former client?

Am I required to report to the Bar my own conduct that might violate the RPC’s?

Can I mention my conversation with the Ethics Line in my response to a grievance?

 

If I am buying or selling a law practice, what are some of my ethical obligations?

Your paramount ethical obligation is to the client. When selling a practice, the seller needs to give written notice to each client. RPC 1.17(c). This is to protect the client’s right to retain other counsel or take possession of the file if the client chooses not to proceed with the new lawyer. See Practice Transitions — Ending Your Practice. 

What should I do if I learn my client committed perjury?

  • This dilemma raises complex questions of legal ethics, and due care must be taken to ensure compliance with applicable requirements in Washington, which in some ways differ from the requirements of the Model Rules of Professional Conduct. A careful review of Washington RPC RPC 3.3, 1.6, and 1.16 is recommended.
  • A lawyer must not offer evidence that the lawyer knows to be false. RPC 3.3(a)(4). If a lawyer comes to know that he or she has offered material evidence that is false, such as false client testimony, then the lawyer must promptly disclose this fact to the tribunal unless disclosure is prohibited by RPC 1.6. RPC 3.3(c).
  • Rule 1.6 prevents a lawyer from revealing information relating to the representation of a client unless the client gives informed consent or the disclosure is expressly authorized by Rule 1.6. Even if the client has committed perjury, the lawyer is obligated to protect the confidentiality of information under RPC 1.6. If disclosure of the perjury to the tribunal is prohibited by Rule 1.6, the lawyer must make reasonable efforts to convince the client to consent to disclosure. "If the client refuses to consent to disclosure, the lawyer may seek to withdraw from the representation..." RPC 3.3(d). However, circumstances rarely if ever allow a lawyer to continue after he has knowledge his client has committed perjury. And in withdrawing, the lawyer must respect the confidentiality obligation under RPC 1.6 and proceed in accordance with RPC 1.16 (Declining or Terminating Representation). After representation has been terminated, a lawyer must maintain confidentiality to the extent required by RPC 1.9.
  • According to RPC 1.16, a lawyer shall terminate representation if the representation will result in violation of the Rules of Professional Conduct or other law. If the lawyer knows that the client has committed perjury and the client has refused to consent to disclosure of the false statement to the tribunal, the lawyer must terminate the representation. See Comment [10] to RPC 1.2 (a lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent).
  • Termination in such circumstances may require court approval or notice. If the court requests an explanation for the withdrawal, and the basis for the withdrawal is confidential, the lawyer’s statement that “professional considerations require termination of representation” ordinarily should be accepted as sufficient. See RPC 1.16, Comment [3].

What should I do when I feel my client lacks the ability to make decisions or the client’s ability to do so is deteriorating?

As far as is reasonably possible, a lawyer is obligated to take steps to maintain a normal lawyer-client relationship even if a client’s capacity to make adequately informed decisions is diminished. RPC 1.14(a).

When the lawyer believes that because of diminished capacity the client is at risk of substantial physical, financial, or other harm unless action is taken, then the lawyer is permitted to take reasonably necessary protective action. RPC 1.14(b). What protective action is reasonably necessary depends on the circumstances.

Comment [5] to RPC 1.14 provides guidance in this regard:

Protective action might include:

  • consulting with family members;
  • using voluntary surrogate decision-making tools such as durable powers of attorney;
  • consulting with support groups, professional services, adult-protective agencies or other individuals or entities that have the ability to protect the client.

If a lawyer takes protective action, the lawyer should be guided by such factors as:

  • the wishes and values of the client to the extent known;
  • the client’s best interests and the goal of minimizing intrusion into the client’s decision-making autonomy;
  • Maximizing client capacities and respecting the client’s family and social connections.

What do I do with unclaimed trust account funds?

Unclaimed funds result from either a balance left in the trust account for a client a lawyer can no longer locate or from outstanding checks that the lawyer is unable to reissue. Any unclaimed trust account funds must be handled according to the Uniform Unclaimed Property Act, RCW 63.29 . The Act requires that funds be remitted to the Department of Revenue Unclaimed Property Division within three years of when the funds were issued or had a last activity date. See also the WSBA-published booklet Managing Client Trust Accounts (page 25). 

If communications with my client are going poorly, can I withdraw from the representation? If so, when can I withdraw?

  • A lawyer may withdraw from representing a client if the withdrawal can be accomplished without material adverse effect on the interest of the client. RPC 1.16(b)(1).
  • When a client-lawyer disagreement arises, the lawyer should consult with the client and seek a mutually acceptable resolution of the disagreement. RPC 1.2 Comment [2] and RPC 1.4.
  • The effort to resolve differences should occur promptly, since in some situations withdrawing sooner rather than later may better protect client interests. Under RPC 1.16(d), upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that had not been earned or incurred.

How long do I need to keep closed client files?

  • Washington’s RPC offer little specific guidance about the maintenance, storage, or destruction of client files. RPC 1.15A and 1.15B require lawyers to safeguard client property.  RPC 1.16(d) states that a lawyer must take reasonably practicable steps to return client property, including papers and documents, to the client at the termination of the representation.
  • In general, all original client files, particularly original wills, should be returned to the client after the conclusion of representation, depending on the practice area. Neither the WSBA nor the RPC’s require a lawyer to retain an entire client file for a specific period of time after the lawyer-client relationship has ended.
  • RPC 1.15B(a) requires that trust account records and related documents be retained for seven years after the events they record.
  • As for other client files, the suggested period for retaining files varies depending on the nature of the matter. For probate claims and estates, we suggest that files be retained for ten years after final judgment. For criminal cases, leases or real estate transactions, dissolutions, bankruptcy, tort claims, and contact actions, we suggest that files be retained for seven years. For more information about practice specialties and guidelines for file retention, see the Guide to Best Practices for Client File Retention and Management.

What files and information do I give to my former client?

  • At the conclusion of a representation, the client file generated in the course of the representation must be turned over to the client at the client’s request. If the lawyer wishes to retain copies for the lawyer’s use, the copies must be made at the lawyer’s expense unless charges were specified in the lawyer-client fee agreement. Washington State Bar Association Advisory Opinion 181 and RPC 1.5.
  • A lawyer must take steps to the extent reasonably practical to protect a client’s interests including surrendering papers and property to which the client is entitled. RPC 1.16(d). Client papers include: the actual documents the client gave the lawyer or papers, such as medical records, and documents the lawyer has acquired at the client’s expense.
  • Examples of papers the lawyer need not surrender to the client include:
    • drafts of papers
    • duplicate copies
    • photocopies of research material
    • lawyers’ personal notes containing subjective impressions. Washington State Bar Association Advisory Opinion 181.

    Am I required to report to the Bar my own conduct that might violate the RPC’s?

    There are two situations when a lawyer is required to report to the Bar the lawyer’s own conduct: (1) after having been publicly disciplined or transferred to disability inactive status in another jurisdiction, and (2) after the lawyer receives an overdraft notification involving a trust account. (The lawyer must fully explain the cause of the overdraft.) See ELC 9.2(a) and 15.4(d).

    Regarding criminal convictions, effective January 1, 2014, a Washington lawyer convicted of a felony must report that conviction to the Bar within 30 days. ELC 7.1(b). 

    Can I mention my conversation with the Ethics Line in my response to a grievance?

    Under APR 19(e)(5), no information relating to an ethics inquiry to Professional Responsibility Counsel, including the fact that a lawyer made an inquiry, the content of the lawyer’s inquiry, or Professional Responsibility Counsel’s response to the lawyer’s inquiry may be used in response to any grievance filed against the lawyer or complaint under the ELC.  Likewise, this information is not admissible in any proceedings under the ELC.