§7.1 RPC 1.7: Current Clients—General Rules

• Jurisdiction: Washington

I. RPC 1.7: CURRENT CLIENTS—gENERAL RULES

Rule of Professional Conduct (RPC) 1.7 deals with conflicts of interest involving currently represented clients. The conflicts addressed by this rule could arise from representation of a client with interests directly adverse to those of another client, or from situations involving the interests of another individual or the lawyer's own interest, each of which places a material limitation on the lawyer's representation of a client. Washington has adopted the American Bar Association (ABA) Model Rule of Professional Conduct (MRPC) 1.7 in its entirety and has included an additional requirement in RPC 1.7(b)(4). Washington has also adopted the majority of the ABA comments to MRPC 1.7 with limited revisions and reservations, adding six additional comments specific to Washington.⁸

Conflicts of interest involving current clients can differ from other similar conflicts in a variety of ways. Two generalized differences include the lack of necessity of a substantial relationship between the matters involved and a requisite preliminary determination of whether an attorney-client relationship exists. If an attorney-client relationship is found to exist, the lawyer must then determine whether a conflict of interest is, or has the potential to be, involved. If so, the situation must be analyzed under the requirements and restrictions of RPC 1.7(b) to determine whether representation is permissible or prohibited.

A. No Substantial Relationship Requirement

Unlike conflicts involving former clients, which are covered by RPC 1.9, a conflict of interest under RPC 1.7 may exist between two matters even when there is no substantial relationship between the matters.⁹ Therefore, to undertake or continue representation of a client when a conflict of interest involving direct adversity between clients or the potential for material limitation on representation is involved, a lawyer must comply with all subsections of RPC 1.7, even if the conflicting matters are wholly unrelated.

B. Determining Whether an Attorney-Client Relationship Exists

An important first step in avoiding the Scylla and Charybdis of conflicting client interests is to know who your clients are. The Washington Supreme Court has held that the "essence of the attorney-client relationship is whether the attorney's assistance or advice is sought and received on legal matters."¹⁰ When a formal written agreement for representation is created between a lawyer and a client, the existence of an attorney-client relationship is clear; however, lacking such formal agreement, an attorney-client relationship can also be "implied from the parties' conduct."¹¹ When implied, the existence of the attorney-client relationship "turns largely on the client's subjective belief that it exists," as long as that subjective belief is "reasonably formed based on the attending circumstances, including the attorney's words or actions."¹² "Even a short consultation may suffice to create an attorney/client relationship."¹³

Once an attorney-client relationship exists, "[s]omething inconsistent with the continuation of the relationship must transpire in order to end the relationship."¹⁴ One example of conduct that could terminate the attorney-client relationship is the filing of bankruptcy when attorney fees are based on a contingency agreement.¹⁵ Under normal circumstances, the client's firing the attorney or the attorney specifically withdrawing—in writing—is the best evidence that the relationship has ended. Otherwise, the attorney runs the risk that a court will find that the relationship continued.¹⁶

1. Reasonable Belief giving Rise to Implied or Continuing Attorney-Client Relationship

A client's belief that an attorney-client relationship exists may be reasonably formed if based on an historical relationship with the lawyer or law firm. For example, an attorney-client relationship can still exist for conflict purposes even though the law firm and client did not have a retainer agreement affirming an ongoing relationship.¹⁷ In Oxford Systems, Inc. v. Cellpro, Inc., the court reasoned that, based on client Becton's 13-year history of using the law firm (Perkins) as its sole legal counsel within the state, "it was reasonable for Becton to believe that based on Perkins' previous engagement and involvement in the patent matter, Perkins would not agree to represent another client with interests directly adverse to those of Becton in a substantially related matter."¹⁸

The client's subjective belief has been found to create the same duties and responsibilities as involved in an attorney-client relationship even in cases when a nonattorney engages in the unauthorized practice of law, and a client believes he or she is represented by the nonattorney.¹⁹

Additionally, a joint defense agreement, under which multiple attorneys representing separate codefendants consult regarding defense strategies, has been found to establish "an implied attorney-client relationship with the co-defendant," at least for confidentiality purposes.²⁰

2. Attorney-Client Relationship Not Implied

Washington courts have held that an individual's claim to have believed an attorney-client relationship existed is not sufficient if the court finds the individual's belief was not "reasonable."²¹ In addition to such case-specific circumstances, there are some generalized categories of actions that do not, without more, give rise to an attorney-client relationship, such as when a lawyer represents a corporation (as opposed to corporate affiliates, officers, or employees), is hired solely as a testifying expert, or is appointed by the court to represent someone who refuses the representation.

When a lawyer represents a corporation or similar organization, the lawyer does not, merely by virtue of that representation, also create an attorney-client relationship with a constituent or other organization affiliated with the corporation or individual members of the organization, such as corporate officers or employees.²² However, if the lawyer has also developed an attorney-client relationship with an affiliate or individual member of the organization, the lawyer may not be able to represent a client litigating against that individual member if the lawyer cannot satisfy the requirements of RPC 1.7.²³ Again, relying on the subjective belief of the client, even when no attorney-client relationship exists, the lawyer or law firm may be disqualified from representation adverse to an individual member if a member of the organization "divulged information to the firm in the belief that the firm was its attorney as well as that of the association."²⁴

A lawyer engaged solely as a testifying expert does not form an attorney-client relationship with the party for whom the lawyer is testifying.²⁵ An attorney so engaged "should make his role clear at the outset" to avoid any misunderstanding as to whether such a relationship has been developed.²⁶ A testifying expert does not provide "law-related services" per RPC 5.7, although the lawyer may be limited in future representations adverse to the party for which the testimony is provided to duly protect confidences of the party.²⁷ Therefore, if the duty of confidentiality involved in providing such expert testimony materially limits the representation of an existing client, the lawyer and his or her law firm may be prohibited from the representation.²⁸ "Even though service solely as a testifying expert is not as such governed by the Model Rules, concurrent representation of a client adverse to the party for whom the lawyer serves as a testifying expert ordinarily is barred by Model Rule 1.7(b) as a result of constraints imposed by other law."²⁹ In contrast, if the attorney is asked to provide nontestifying expert consultation, providing such services to a party adverse to an existing client will ordinarily give rise to a nonconsentable conflict of interest, because "it would not be reasonable for the lawyer to believe in those circumstances that the representation of the client will not be adversely affected."³⁰ Although ABA Formal Opinion 407 was written under a former version of the model rules, this form of nonconsentable conflict of interest arises from the inability to meet the current requirements of RPC 1.7(b)(1)—that lawyers reasonably believe themselves capable of providing competent and diligent representation, discussed in greater detail below in Section I.F.1.³¹

When a lawyer is appointed by a court and the proposed client refuses to accept the representation, no client-lawyer relationship is formed, and the usual duties owed to a client and/or former client do not attach.³² Although the court can order that the lawyer continue the representation, doing so "does not undermine the principle that initial client consent is essential to the creation of a client-lawyer relationship."³³ Should the court expressly or impliedly require the lawyer to act as though the client has accepted the representation, thus imposing the obligations to a client on the lawyer, the obligations that arise do not arise from a duty owed the client under the RPC but instead from the authority of the tribunal.³⁴

Any legal obligation owed by the lawyer to the defendant, which may be analogous to those embodied in the ethics rules, arises from the authority of the appointing tribunal and includes whatever obligations the tribunal may identify. The lawyer's ethical duties are limited to complying with the Rules defining a lawyer's obligations to persons other than a client.³⁵

Although if a defendant never accepts representation and never actually becomes a client or former client, thus having no basis to contend "that the lawyer is or was ever obliged to avoid conflicts of interest," the lawyer may still owe duties, such as confidentiality, the lawyer would owe to any other prospective client who never actually becomes a client.³⁶

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