Frequently Asked Questions About Ethics
- Is it OK to "Reply All" in email to opposing party?
- What are the ethics of working remotely?
- 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 RPCs?
- Can I mention my conversation with the Ethics Line in my response to a grievance?
- What are my ethical duties when I leave a firm?
- What are former client conflicts?
- Can I give a gift to my client?
- I Can’t Contact My Client. What Can I do?
- Can attorneys post comments after receiving unfair negative reviews?
- How can I withdraw while maintaining client confidentiality?
- Can I communicate directly with the adverse party when their attorney isn't responding?
Is it OK to “Reply All” in email to opposing party?
So you hit “Reply All” in response to an email from another lawyer who cc’d their own client on the initiating email. Did you just violated RPC 4.2? Or is including the other client permissible because they were already included in the initial email?
There’s a new Advisory Opinion which helps you answer this question. The Committee on Professional Ethics just posted Advisory Opinion 202201 in WSBA.org and takes a comprehensive look at the issue. Short answer: “Reply All” may be allowed if consent can be implied in the situation, but express consent is always the prudent approach. Bear in mind that this opinion is advisory, other professionals, courts or states’ ethics opinions may come to a different conclusion.
RPC 4.2 states that in representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order. The purpose of RCP 4.2 is to protect a client from overreaching by other lawyers and interference by those lawyers in the attorney-client relationship. (Be sure to read the rule and its comments in their entirety.)
Consent to communication about a matter with a represented client can be expressly granted by the client’s lawyer. Is the fact that a client was included on an initial email consent for the responding lawyer to include them in a reply?
It’s not easy to say. The opinion concludes that consent may be implied in a situation depending on a variety of factors, including the prior course of conduct between the lawyers and the adversarial nature of the matter. The responding lawyer must make a good faith determination if implied consent has been given.
The safest course of action is to establish at the outset whether “Reply All” is agreed to by all participants, or don’t hit that button.
If you have questions or concerns about a prospective ethical matter, call us at the WSBA Ethics Line: 206-727-8284.
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 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  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 .
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  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  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, see the WSBA Table of Suggested Dates for File Retention and NWSidebar blog post on keeping closed files.
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?
Yes, in four circumstances. See ELC 9.2(a) (lawyer must inform disciplinary counsel of discipline or transfer to disability inactive status in another jurisdiction); ELC 9.4(a) (a lawyer has a duty to self-report resignation in lieu of discipline from another jurisdiction); ELC 7.1(b) (a lawyer has a duty to self-report conviction of a felony); ELC 15.4(d) (trust account overdraft notification).
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.
Can I give a gift to my client?
Lawyers can give their clients gifts, subject to some qualifications. Except for expenses of litigation, a lawyer shall not “advance or guarantee financial assistance to a client” if there is contemplated or pending litigation. RPC 1.8(e). The reason for this is that making loans to clients could give lawyers too much of a financial stake in the litigation. Lawyers can’t make loans to their client if there is possible litigation, but they are free to make “a bona fide gift with true donative intent.” See Washington Advisory Opinions 1959 and 1523. Keep in mind that gifts cannot be given in payment for a client referral. A lawyer shall not give anything of value to a person for recommending the lawyer’s services. RPC 7.2(b). See, for example, Washington Advisory Opinion 1535. Receiving a gift from a client is also permitted, but a lawyer should not solicit a “substantial” gift from a client. RPC 1.8 (c). Comment 6 clarifies that “a simple gift such as a present given at a holiday or as a token of appreciation is permitted.”
How Can I Withdraw While Maintaining Client Confidentiality?
How do you withdraw without telling the court why you need to do so? The golden ticket is to state that professional considerations require you to withdraw. Comment 3 to RPC 1.16 highlights that this statement should ordinarily be accepted by the court “as sufficient.” Advisory Opinion 201701 clarifies that a lawyer may make similar statements to “professional considerations” as long they do not disclose the particular reasons for withdrawal. A lawyer may provide further information in camera and under seal if ordered to do so by the court. RPC 1.6 (b)(6) allows an attorney to reveal confidential information to comply with a court order. In that event, the attorney must assert on behalf of the client all nonfrivolous claims that the information is protected. Comment 15. If the client is in the picture and wants to appeal, the lawyer should not make any further disclosures until the appellate process has run its course. The ABA published a very helpful Formal Opinion 476 Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation in December 2016.