August 2001

Inside the The Rules of Professional Conduct Committee

by Vicki Lee Anne Parker

"Ethics Inquiry No. ___ has been assigned to you…." The work of the Rules of Professional Conduct Committee begins. Two members receive an assignment to research and respond to questions posed by fellow members of the Bar. One committee member assigned to the task might be an attorney from a small town whose daily work entails handling nearly every legal question that comes through the door. The other assigned member may practice in only one area of law, and live in a large city. Or, perhaps the committee member is a professor of law or a government attorney representing state, county or city government. The diversity is invaluable. An attorney on the committee may know that a question is in litigation, while another may know that disciplinary action has begun.

Submitted inquiries are confidential (See Bar News, December 2000, p. 38). The two attorneys assigned to the investigation write a memorandum to the committee. During the committee meeting, they present an overview and recommend a course of action. With as many as 27 attorneys grappling with an inquiry, the process is lively; however, this free exchange of views never takes on a personal tone. Candor and humor permeate every meeting.

The tasks of this committee allow its members to intellectually dissect situations in a way rarely afforded. While it is the express function of the committee to answer questions attorneys have of their own contemplated behavior, an inquiry might come from a nonattorney supervisor in a government agency. The committee must decide whether to reject the inquiry, or educate the agency about the application of the rules to attorneys in the agency, whether they are practicing law or not.

Sometimes the problem is not with what should be said, but how to say it. For example, the committee does not give legal advice. If questions involve the interpretation or applicability of a law in a situation, the committee will decline to enter the fray, but may offer general reference to certain RPCs. Often, a definite economic motive is the incentive or concern behind the inquiry. What should be done with unexpended trust funds from a lost client? Does a fee agreement have to be in writing? May an attorney charge a flat percentage of his fee for costs?

Some of the questions submitted appear to be "no brainers," such as an attorney asking if it is appropriate for him to have direct contact with the client of opposing counsel. But a wrinkle may appear. If the opposing attorney declines to identify his representation of an individual, is the first attorney in violation of the rule upon contacting the unidentified "client"? Because the response of the committee may be used defensively in a disciplinary hearing, it is important to ask before acting in a potentially questionable manner.

The committee deals with current issues, such as recommending to the WSBA Board of Governors a proposed rule change prohibiting sex with clients. A subcommittee provided an exhaustive review of insurance company audits; the resultant effect of new technologies on confidentiality are considered and reconsidered as technology changes; and ethical questions regarding the establishment of a Web site, allowable contents, and the routing to that site have been considered.

Cutting-edge issues such as multidisciplinary practice are routinely aired in committee. May an attorney sell life insurance and other products as one business, and practice estate law in another? May an attorney be a real estate broker and have a separate law practice in the same building? Whose trust account must be used? May an attorney own a contracting firm and have a law practice centered on construction issues? Each question is of vital importance in the structuring of an attorney’s practice and work.

Great care is given to lead the attorney toward appropriate ethical conduct. Conflicts of interest and queries about trust accounts are routine. Attorneys accidentally find themselves violating trust-account rules by keeping nonclient funds in their trust accounts in an amount in excess of account operating expenses. We often receive questions such as "Attorney X is doing A, B and C. Is he violating the RPCs?" The committee generally refrains from responding to this type of inquiry.

While we may be asked to draft a fee agreement that meets ethical standards if the one presented to us proves unethical, the committee does not draft documents, whether fee agreements or advertisements for Web sites.

The committee, which may propose rule changes, is usually asked to review proposals to change the ethics rules. When issues recur, the committee can opt to submit a formal opinion, which may be modified, to the Board of Governors for adoption. While the informal opinion may be helpful and creates a rebuttable presumption that an action is ethical, the formal opinion creates the primary basis of analysis for future opinions of the committee. The committee also looks to the RCWs, case law, and the RCS (Rules of Common Sense) for guidance.

Currently, the committee has a work in progress — the preparation of an ethics deskbook. It is the hope of the committee that the deskbook will further help attorneys meet the ethical standards set forth in the Rules of Professional Conduct.

Before you pick up a cellular phone or use e-mail to conduct business, you may want to consider your client’s confidentiality under RPC 1.6. If you are considering representing Web site clients, you may want to review the rules, particularly on conflicts and confidentiality. If your client has directed you to claim a tractor is part of a land transfer or wants help in hiding assets, you may wish to check out RPCs 1.1, 1.2(d), 3.1 and 3.4.

For further information, contact WSBA Professional Responsibility Counsel Chris Sutton, secretary of the Rules of Professional Conduct Committee, at 206-727-8219 or chriss@wsba.org.