WA rules

Question 1

In re Simmons

Answer 1

In Re Simmons
Facts:
-Tara Simmons had a challenging history of substance abuse, multiple criminal convictions and 2 bankruptcies.
-Maintained sobriety since September 2011
-Candid about her past, demonstrating sincere remorse and working diligently to make amends to her community.
-Exceptional Student, Volunteer/Advocacy Work
=Admitted to Practice
Rationale:
-The APRs define “good moral character” as “a record of conduct manifesting the qualities of honesty, fairness, candor, trustworthiness, observance of fiduciary responsibilities, adherence to the law, and a respect for the rights of other persons and the judicial process

Question 2

Civil liability

Answer 2

Who the client is with the right to bring claim
Tank Farm case
“The one and only client of the lawyer is the insured”
Insured person is the client not the insurance company
Only the client could sue lawyer, no the insurance company of client

Question 3

Rule 11 (signed pleadings)

Answer 3

Anyone who signs pleadings warrants a good faith belief that the facts are supported by law
WA there is no safe harbor provision?
Rule 11 and disciplinary hearing have different burdens of proof

Google def: A safe harbor is a provision in a law or regulation that affords protection from liability or penalty under specific situations, or if certain conditions are met.

Question 4

Rule 1.6

Answer 4

WA Exception: Any future crime, doesn’t need use of lawyers services
Mandatory disclosure
(1) shall reveal information relating to the representation of a client to prevent reasonably certain death or
substantial bodily harm;

Question 5

Rule 1.18 Duties to prospective clients

Answer 5

Law can condition consultation conversation with prospective client that this doesn’t prohibit lawyers from representing clients w/ similar matters

Question 6

Attorney’s fees: Contingent Fees

Answer 6

• Only part of the deposition that is used for trial will get covered
• Can’t make costs contingent in WA
  - Despite loss client has to pay costs
• Lawyer can get full contingent fee when attorney is discharged but substantially performed the case

Question 7

Attoney’s Fees: Retainer and Flat Fees

Answer 7

Flat Fees

• Mostly drunk driving offenses
• Complete payments for specified legal services
• Shall be written in a manner that is easily understood by the client

Retainer:

• Needs to be signed by client
• Flat fee is lawyer’s money as soon as its paid

Question 8

Cost recovery

Answer 8

There are rules about what a client can recover for costs
- Ie. client cannot recover costs for photocopies or markup costs by any percent

If you put in the contract “If I have to sue you, I can recover fees” then it automatically goes both ways (aka if they sue you they can recover fees)

Question 9

Fee Splitting

Answer 9

In Washington you can fee split with LLLTs/have ownership interests in law firms

Question 10

Changing fee agreements:

Answer 10

Changing fee agreements midway through representation in any way that benefits the lawyer is presumed fraudulent. However, hourly rates can increase if notice is given.

Question 11

WA 1.15 (a) and 1.15 (b)

Answer 11

Overdraft rule:

• When you enter into trust account relationship with bank and there is an overdraft, the bank automatically informs WSBA
• Iolta
• Any interest earned on Iolta has to be paid to legal foundation of WA - money goes to legal aids via grants
• Subject to random audits by WSBA
• Taking $ from iolta is the quickest way to get disbarred

Question 12

Prosecuting in WA

Answer 12

WA doesn’t use dist. Attorney model

Prosecuting attorney model, can advise police but only prosecute when requested

Question 13

Rule 8.3 Reporting Professional conduct (Reporting of ethical violations)

Answer 13

WA is “should” inform appropriate authority not “Shall”

Question 14

Duty of Care

Answer 14

Duty of Care a Lawyer must meet:
Hizey v. Carpenter: Attorney must exercise the degree of care, skill and knowledge possessed by a reasonably competent and prudent lawyer in the jurisdiction.

Question 15

Cotton v. Kronenberg

Answer 15

Trial court properly considered RPCs to determine breach of fiduciary duty.
Ethics rules can create the standard of care in a breach of fiduciary duties case (but not in malpractice)

Question 16

Eriks v. Denver

Answer 16

Once the court finds there has been a breach of fiduciary duty, the court may decide damages for attorneys fees whether or not there has been actual damages (disgorge attorney’s fees).

Question 17

Confidentiality

Answer 17

The Model Code is more protective of Confidentiality than Washington

• In Washington MANDATORY duty to reveal certain death or substantial bodily harm
• Other criminal activity (crime or fraud), substantial injury to finances or property of another and in furtherance of which the client has used or is using the lawyer’s services (future crime)
• Under WA code may reveal any future crime

Question 18

Attorney Client Privilege

Answer 18

Washington attorney-client privilege is statutory
Determining Attorney-Client Relationship for nonclients or third parties
Trask v. Butler: Multi-factor balancing test (6 factors):

(1) the extent to which the transaction was intended to affect/benefit the plaintiff;
(2) the foreseeability of harm to the plaintiff;
(3) the degree of certainty that the plaintiff suffered injury;
(4) the closeness of the connection between the defendant’s conduct and the injury;
(5) the policy of preventing future harm; and
(6) the extent to which the profession would be unduly burdened by a finding of liability.

Question 19

Competence in a Criminal Case: Strickland v. Washington

Answer 19

To establish the ineffective assistance of counsel, a convicted defendant must show that his counsel’s performance was deficient because the lawyer did not act as a reasonably competent attorney, and that he was prejudiced by the deficiency because there is a reasonable probability that, but for his attorney’s unprofessional errors, the result of the proceeding would have been different.

Question 20

Declining/Terminating Representation:

Answer 20

In Washington you must give notice of your intent to withdraw
10 days notice
No objection=Done
Objection= Motion before the court

Question 21

Disclosure

Answer 21

“Authorization from client to make any required disclosure” is necessary in the rules
AKA telling one client stuff about the other client

Question 22

Covenant Judgements:

Answer 22

Olympic v. Steamship

Question 23

Endorsements

Answer 23

In Washington it is fine to seek the endorsement of a partisan organization when running for a judicial officer. Judges may personally solicit campaign contributions from family and certain persons.

Question 24

How to prove Quantum Meriut

Answer 24

The opinion sets the framework for how attorney’s fees get decided in Washington
- An equitable assessment of the value of work done that allows compensation for lawyers who withdraw on that basis

Question 25

Random WA Facts to remember

Answer 25

Obstructing evidence
- Lower level employees
- Up john?
Holding evidence would be criminal
WSBA takes complaints from judges about lawyer misconduct very seriously
WSBA on its own may open a disciplinary grievance