Washington's New Rules of Professional Conduct: a Balancing Act

• Publication year: 2006
• Citation: Vol. 30 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 30, No. 1FALL 2006

Washington's New Rules of Professional Conduct: A Balancing Act

Johanna M. Ogdon(fn*)

I. Introduction

What should an attorney do if she is faced with a client who insists on perjuring himself?(fn1) What if an attorney's client informs her that he is planning on committing a violent crime? Petty theft? This Comment deals with the question of when an attorney should and must reveal client confidences to prevent or remedy fraudulent or criminal conduct. More particularly, this Comment addresses how Washington's new Rules of Professional Conduct address these issues.(fn2)

In 2003, the American Bar Association (ABA) promulgated amended Model Rules of Professional Conduct (2003 Model Rules).(fn3) Subsequently, Washington began re-evaluating its own Rules of Professional Conduct (1985 Washington RPC).(fn4) The Washington State Bar Association (WSBA) Board of Governors appointed the Special Committee for the Evaluation of the Rules of Professional Conduct (Ethics 2003 Committee) to consider whether Washington should adopt the ABA's 2003 Model Rules of Professional Conduct.(fn5) The Ethics 2003 Committee ultimately recommended adopting the ABA's 2003 Model Rules with a few changes ("proposed rules");(fn6) consequently, by order dated July 10, 2006, the Washington Supreme Court adopted most of the ABA's 2003 Model Rules (2006 Washington RPC, or "adopted rules"), which became effective September 1, 2006.(fn7)

Permissive and mandatory revelations of client confidences are governed by two rules, 1.6 and 3.3.(fn8) The Ethics 2003 Committee originally recommended adoption of Model Rule 3.3, Candor Toward the Tribunal, verbatim,(fn9) and adoption of Model Rule 1.6, Confidentiality of Information, with minor changes.(fn10) Adoption of Model Rules 1.6 and 3.3 would have reversed the previous Washington rule concerning attorney candor to the tribunal.(fn11) Washington's previous 1985 version of Rule 3.3(fn12) preserved a lawyer's duty to keep client confidences, governed by Rule 1.6,(fn13) over a lawyer's duty to be truthful to the court, governed by Rule 3.3.(fn14) The 1985 Washington Rules of Professional Conduct (1985 Washington RPC) guaranteed that, if these two duties conflicted, the duty of protecting client confidences prevailed.(fn15) If the 2003 Model Rules 1.6 and 3.3 had been adopted, the presumption would have been reversed, and the duty of truthfulness to the court would have trumped the duty of confidentiality.(fn16) Wisely, the Washington Supreme Court chose not to follow the WSBA's recommendations and, for the most part, maintained the balance between Rule 1.6 confidences and Rule 3.3 candidness.(fn17)

The discrepancies between the rules proposed by the Ethics 2003 Committee and those ultimately adopted by the court are symptoms of the current hot-button debate in lawyer ethics concerning lawyers acting simultaneously as private advocates and public servants.(fn18) Too often the ethics debate is framed by rhetoric based on legal or theoretical maxims, causing the debate to be ensconced in ethical catchphrases: "lawyers must be zealous advocates"; "lawyers owe a duty to the court."(fn19) Someday, perhaps, legal scholars and practitioners will break out of the rhetoric and embrace a new way of thinking and talking about legal ethics.(fn20) However, this Comment does not address or propose radical changes. Rather, this Comment embraces the usual rhetoric and the realities that practicing lawyers face.

Washington lawyers will soon confront a bevy of new ethical rules, and this Comment explores two of those rules: Rule 1.6 and Rule 3.3.(fn21) This Comment explores the critical changes to Rule 1.6 and Rule 3.3, discusses how those changes will affect Washington lawyers, and argues that although adopted Rules 1.6 and 3.3 continue Washington's tradition of balancing candor and confidentiality, Rule 3.3 should be expanded to permit permissive disclosures of client confidences.

Part II begins by exploring the history of the Rules of Professional Conduct. Part II then briefly turns to the origins of the modern debate over candor and confidentiality and focuses on two of the most essentially opposed and well known scholars on the issue, Judge Marvin Frankel and Professor Monroe Freedman.(fn22) Part III dissects Washington's newly adopted RPC, focusing on Rules 1.6 and 3.3.(fn23) Part IV suggests that although the new rules mostly balance a client's interest in confidentiality with a court's interest in candor, attorneys should be given the discretion to reveal client confidences when necessary. In conclusion, Part V proposes a slightly different version of Rule 3.3. This different version would give lawyers support in making decisions that maintain the delicate balance between candor and confidentiality.

II. The History of Legal Ethics

The purpose of this section is to explain the evolution of codified ethical laws. First, this section will look at the beginnings of legal ethics in America and briefly survey how the ethics laws have addressed attorney candor. Second, this section will examine the history of attorney client confidences, and look at the recent history of the debate through the lens of Judge Frankel and Professor Freedman.

A. The Codification of Ethical Guidelines of Advocacy, Candor and Confidentiality

Confidentiality rules enable lawyers to be more effective advocates in the American adversary system.(fn24) Historically, state bars have governed codified ethics laws.(fn25) The codified attorney-client ethics laws developed relatively recently in American legal history.(fn26) In the early twentieth century, states slowly began to adopt the rules, and it is only recently that the code has had such a large impact on how attorneys prac-tice.(fn27)

Early writings on legal ethics urged both candor to the court and devotion to the client.(fn28) In 1836, one of the first American writers on legal ethics, Professor David Hoffman, drafted "Fifty Resolutions in Regard to Professional Deportment," which, in essence, espoused a view of maintaining faithfulness to the client except under certain circumstances.(fn29) Professor Hoffman wrote, "I will never permit professional zeal to carry me beyond the limits of sobriety and decorum ...,"(fn30) and "[s]hould my client be disposed to insist on captious requisitions, or frivolous and vexatious defences, they shall be neither enforced nor countenanced by me."(fn31) But he also wrote, "To my clients I will be faith fill; and in their causes, zealous and industrious."(fn32) Ultimately, Hoffman advocated subordinating client loyalty to the goals of justice.(fn33)

George Sharswood closely followed Hoffman in 1884 with "An Essay on Professional Ethics."(fn34) Sharswood's piece was a recording of good lawyering practices, written for new members of the bar to learn what the older, wiser members presumably already knew.(fn35) Sharswood, like Hoffman, simultaneously urged zealous advocacy and professional and moral restraint.(fn36) One commentator notes that the early writers on legal ethics, in insisting on candor, truth, simplicity, and professional zeal, did not recognize the potential for fealty conflict.(fn37) However, because these writings were mostly recordings of normative lawyer practices, and no professional sanctions followed from disobedience,(fn38) the conflicts in the ethical principles were probably not of great consequence to practicing attorneys.

The State of Alabama followed the lead of Sharswood and Hoffman and in 1887 became the first state to adopt an official code of ethics.(fn39) The Alabama Code of Ethics reflected the earlier writings in that professional standards of legal conduct depended on the mores and honesty of individual lawyers rather than on the rules and sanctions of the profession.(fn40) Thus, there were no official professional repercussions for violating a provision of the Alabama Code of Ethics.(fn41)

In 1908, the American Bar Association adopted the first national Canons of Professional Ethics ("Canons"), which were based mostly on the Code of Ethics adopted by the Alabama Bar Association.(fn42) The Canons, unlike the modern ABA Model Rules of Professional Conduct, were not accompanied by disciplinary guidelines,(fn43) and were defined as "statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession."(fn44) The Canons were subjected to several piecemeal changes for about seventy years, and along the way most states eventually adopted their own modified version.(fn45)

In 1969, the ABA substantially revised the Canons and produced the first Code of Professional Responsibility.(fn46) This was the first set of rules that legally mandated certain behavior from lawyers.(fn47) The new standards were in the form of rules rather than a list of ethical considerations and were given legal effect in malpractice and misconduct proceed-ings. Even so, the balance between confidentiality and candor remained relatively constant. The 1969 Model Code "did not represent a substantial change from the Canons of 1908 in the area of confidentiality. An attorney had discretion to reveal confidences or secrets to collect a fee, defend against an accusation, or to prevent a crime."(fn49)

The Canons...