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Public Law Ethics Primer

Public Law Ethics Primer For Government Lawyers

Washington State Municipal Attorneys Association

This primer is published as a service of the Washington State Municipal Attorneys Association. It is not intended to render legal advice or legal opinion, because such advice or opinion can only be given when related to actual fact situations.

The entire contents are copyrighted by the Washington State Municipal Attorneys Association and the Municipal Research and Services Center of Washington. All information as to permission to copy may be obtained from the Municipal Research & Services Center of Washington, 2601 4th Avenue, Suite 800, Seattle, Washington 98101-1159, (206) 625-1300. Cost is $20.00


Contents


Preface

The idea of organized ethics materials for government attorneys grew out of a strategic planning session conducted by the Washington State Association of Municipal Attorneys (WSAMA) Board of Directors over four years ago. Ethics was and is a subject of increasing importance to members of the Bar. However, material specifically designed for governmental attorneys are difficult to find. After many discussions within the WSAMA Board and the formation of an ethics committee, the idea of a primer on governmental attorney ethics came to life. What follows in not an exhaustive work, but an introduction to significant areas of ethics law. We chose not to cover ethics for lawyers in the Attorney General's office since that body of law is very specific to that office.

The WSAMA Ethics Committee approached other organizations of government lawyers for assistance with the task. Many of them generously responded and some even provided members to the Editorial Committee. Those contributing authors materials and/or committee members are the Washington Association of Prosecuting Attorneys, the Government Lawyers Bar Association, the Washington Public Port Association, the Washington Council of School Attorneys and the Attorney General's Office.

WSAMA would like to express its deep thanks to the Editorial Committee members who spent many hours of their lives designing and editing this primer: John M. Gray, Tom Tanaka, Margaret Partlow, Mike Finkle, Dan Heid, Ron Clark and Judy Andrews. In addition, the Committee is grateful for the meeting space and word processing contributed by Gottlieb, Fisher & Andrews and Graham & James/Riddell Williams. Judy Andrews deserves special thanks for the many extra hours she spent as our editor-in-chief and word processing coordinator. And, of course, this primer would not exist but for the research and writing work of all the authors. No one received payment or recognition other than your thanks. Please give it to them.

Your thoughts and comments concerning this primer would be very much appreciated. Send them in writing or via e-mail to the WSAMA Board of Directors, the Municipal Research and Services Center, 1200 Fifth Avenue, Suite 1300, Seattle, Washington 98101-1159, or mrscrsc.org.

John Vanek and Sandra Driscoll
Co-chairs, WSAMA Ethics Committee


List of Authors

Client Identification
Jennifer Simpson
Ogden Murphy Wallace
1601 Fifth Avenue, Suite 2100
Seattle, WA 98101-1686

Client Confidentiality
Steve Kravitis
Senior Assistant City Attorney
City of Tacoma
PO Box 11007
Tacoma, WA 98411

Conflict of Interest
Alison Chinn
Assistant City Attorney
City of Vancouver
PO Box 1995
Vancouver, WA 98668-1995

Conflict of Interest
Debra Quinn
Assistant City Attorney
City of Vancouver
PO Box 1995
Vancouver, WA 98668-1995

Internal Investigations
Judith Zeider
Chief Assistant City Attorney
City of Vancouver
PO Box 1995
Vancouver, WA 98668-1995

Attorney as Witness
William A. Coats
Vandeberg Johnson Gandara
First Interstate Plaza
1201 Pacific Avenue, Suite 1900
Tacoma, WA 98402

Screening and Imputed Disqualification
Oma LaMothe
Senior Deputy Prosecuting Attorney
King County Prosecuting Attorney’s Office, E550
Seattle, WA 98104

Statutory Disqualification
Celeste E. Zehr, Paralegal
Seattle City Attorney’s Office
600 Fourth Avenue, 10th Floor
Seattle, WA 98104

Successive Employment
Londi K. Lindell
City Attorney
City of Federal Way
33530 First Way South
Federal Way, WA 98003

Successive Employment
Bob C. Sterbank
Assistant City Attorney
City of Federal Way
33530 First Way South
Federal Way, WA 98003

Statutory Conflict of Interest
Mike Hoge
Perkins Coie
1201 Third Avenue, 40th Floor
Seattle, WA 98101-3099

Pro Bono Work
Arthur Pat Fitzpatrick
Chief Prosecutor
Kent City Attorney’s Office
220 Fourth Avenue South
Kent, WA 98032

Client Ignores Advice/Proposes Improper
Action

Laurie Flinn Connelly
Assistant City Attorney
Spokane City Attorney’s Office
Spokane Municipal Bldg., Fifth Floor
West 808 Spokane Falls Blvd.
Spokane, WA 99201

Private Attorney/Public Attorney
Zanetta Fontes
Warren Kellog Barger Dean and Foster
100 South Second
PO Box 626
Renton, WA 98057

Whistleblower
Richard Little
Assistant City Attorney
City of Bellingham
210 Lottie Street
Bellingham, WA 98225

Prosecutorial Conduct/Pretrial Issues
Ronald H. Clark
Senior Deputy Prosecutor
King County Prosecutor’s Office
W554 King County Courthouse
516 Third Avenue
Seattle, WA 98101

Prosecutorial Conduct/Trial Issues
Daniel B. Heid
City Attorney
City of Lakewood
10510 Gravelly Lake Drive SW, Suite 206
Lakewood, WA 98499-5013

Dissemination of Information in Prosecutor’s Possession
Michael J. Finkle
Assistant City Attorney Supervisor
Seattle City Attorney’s Office
710 Second Avenue, Suite 1414
Seattle, WA 98104

Prosecutorial Conflict of Interest
Scott Sonju
Assistant City Attorney
Vancouver City Attorney’s Office
City of Vancouver
PO Box 1995
Vancouver, WA 98668-1995



Introduction

We have all heard about the rising number of malpractice cases brought against lawyers and are aware of the heightened scrutiny given to lawyer's conduct generally. Lawyers appear to be particularly vulnerable, at least by the excessive numbers of claims, in the area of ethical violations. Such ethical violations, frequently highly publicized, also lend credibility to the pervasive lawyer bashing we all experience. In such a context, it has become incumbent on all lawyers, whoever we represent, to focus more carefully upon ethical rules. It is arguable, however, that those lawyers in the public eye or whose clients are in the public eye, should take even more care to comply with the ethical rules that regulate our profession. In fact, the very existence of an attorney/client privilege in the government setting is increasingly challenged. Recent federal cases-with the usual political overtones-address the complex issues of defining the government lawyer's client, in what circumstances a privilege does or does not exist and when otherwise privileged communications are not protected.

The Washington Rules of Professional Conduct which are the primary source of such ethical rules, clearly apply to government lawyers, as well those representing private entities. See, e.g., Washington v. Greco, 57 Wn. App. 196, 787 P.2d 940 (1990). However, most attention in interpreting the RPC and other ethical rules has focused on the conduct of lawyers in private practice. Nonetheless, lawyers who have a government entity as their client must be sensitive to several twists on ethical issues that particularly arise in governmental settings. Additionally and perhaps more compellingly, government lawyers often must respond to and resolve ethical issues within a public and political setting and in a way which engenders, rather than undermines, public trust in government

This book focuses on the ethical rules which commonly arise in a government practice. identifying the unique twists and turns that attorneys with public entity clients often face. It provides resources necessary to begin to address and resolve such ethical issues when they arise. It relies heavily on the following sources which contain and interpret the ethical rules applicable to government lawyers:

  1. Washington Rules of Professional Conduct. Adopted in 1985, these rules replaced the Code of Professional Responsibility, which in turn had replaced the older Canons of Professional Ethics. The Washington RPCs are largely, but not wholly based on the 1983 American Bar Association Model Rules of Professional Conduct. See R. Aronson, "An Overview of the Law of Professional Responsibility: The Rules of Professional Conduct Annotated and Analyzed," 61 Wash. L. Rev. 823 (1986), for a discussion of the RPCs.

  2. Published Court Opinions. The Washington Supreme Court and Washington Court of Appeals write disciplinary decisions as well as opinions that relate to a lawyer's ethical duties.

  3. Formal and Informal Opinions of the Washington State Bar Association. Each edition of Resources, the annual WSBA directory contains all of the currently outstanding formal and informal ethics opinions of the Rules of Professional Conduct Committee and the Board of Governors.

  4. WSBA Counsel Staff. WSBA counsel staff answer legal ethics questions of Washington attorneys. There is no charge and counsel are often able to answer questions without delay. Where necessary, counsel staff may refer a question to the Rules of Professional Conduct Committee for further analysis.

  5. Opinions of Other Bar Associations. The ABA Committee on Ethics and Professional Responsibility also issues opinions on ethics matters. While not binding in Washington, these opinions provide valuable assistance when Washington authority is unclear or nonexistent. The ABA also maintains a free ethics research service known as ETHICSEARCH for ABA members.


Chapter 1: Client Identification

I. WHO IS THE CLIENT

    A. Potential Clients of a Government Lawyer. A lawyer working as outside or in-house counsel for a governmental entity must ask who he or she represents. Is it:

    1. The elected officials;
    2. The staff;
    3. The governmental entity as a whole;
    4. The general public; or
    5. A combination of the above?

    B. Issues Arising in Client Identification. The identity of the client is vital to determining certain issues, including:

    1. Who shall the lawyer take direction from?
    2. Whose "interests" is the lawyer charged with protecting?
    3. Whose confidences is the lawyer obligated to protect?

II.   DIFFERENT APPROACHES TO DETERMINING THE IDENTITY OF THE MUNICIPAL ATTORNEY'S CLIENT

    A. The Entity Approach.

    1. General Rule. Under the Entity Approach, the lawyer represents the governmental entity as a whole, acting through its officials.

    2. The Recent Whitewater Case Supports the Entity Approach. The Eighth Circuit Court of Appeals recently held that White House lawyers do not represent the President and First Lady as individuals, but rather represent the White House as a whole and the officials only in their official capacities. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied, 1997 U.S. LEXIS 3898 (June 23, 1997). In requiring the White House attorneys to turn over their notes of conversations with Mrs. Clinton, the Court held that no personal attorney-client relationship exists between Mrs. Clinton and the White House attorneys. The Court based its decision, in part, upon the fact that the White House itself is not subject to criminal liability, and therefore the creation of an attorney-client relationship between officials who may have committed criminal acts and the White House lawyers would "represent a gross misuse of public assets." Id. at 12. See infra Chapter 2, Section III.B.2 for further discussion.

    3. Consistent with Corporate Model. The Entity Approach is more consistent with a private corporate lawyer's role of taking direction from the board of directors for the benefit of the corporation as a whole and is supported by the ABA Model Rules (i.e., ABA Model Rule 1.13(a); c.f. Upjohn Company v. United States, 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677 (1981)).

      Note: ABA Model Rule 1.13 was not adopted in Washington's version of the RPC, but Washington seems to follow the principles encompassed in ABA Model Rule 1.13.

    4. Advice and Representation of Entity Officials. The entity concept includes representing and advising the entity officials insofar as the officials are engaged in the "conduct of public business."

    5. Washington Law Supports the Entity Approach.

        a. RCW 36.27.005. "[County] Prosecuting Attorneys are authorized by law to appear for and represent the state and counties thereof[.]"

        b. RCW 36.27.020. County Prosecuting Attorneys shall "[b]e legal advisor of the legislative authority" and "[b]e legal advisor to all county and precinct officers and school [district] directors in all matters relating to their official business . . . " (emphasis added)

        c. RCW 35.23.111. "The city attorney shall advise the city authorities and officers in all legal matters pertaining to the business of the city and . . . shall represent the city in all actions brought by or against the city or against city officials in their official capacity . . . [and] shall perform such other duties as the city council by ordinance may direct." (emphasis added)

        d. RCW 35.27.250. "The town attorney shall advise the town authorities and officers in all legal matters pertaining to the business of the town." (emphasis added)

        e. Case Law. Prosecuting attorney not required to bring an action on behalf of a county officer whenever the officer makes such request if the prosecuting attorney determines that the officer is not entitled to representation. Hoppe v. King County, 95 Wn.2d 332, 622 P.2d 845 (1980); c.f. Fisher v. Clem, 25 Wn. App. 303, 607 P.2d 326 (1980).

        In Hoppe v. King County, the County Assessor (Hoppe) sought to challenge the validity of a County ordinance which levied property tax. Hoppe requested that the King County Prosecuting Attorney represent him in an action against the County, the State and certain County officials. The County Prosecutor refused. The Washington Supreme Court held that "nothing in the duties of the prosecuting attorney (RCW 36.27.020) requires that officer to bring an action simply because a request is made by another county officer or to provide legal representation." Hoppe, 95 Wn.2d at 339-340.

        In Fisher v. Clem, a district court judge (Fisher) sought to compel the Kitsap County Prosecutor to sue the Board of County Commissioners for refusing to provide funding for the district court probation department. The prosecutor had refused to initiate such suit, and Fisher brought a request for a writ of mandamus. The court refused to require the prosecuting attorney to represent Fisher or to appoint a special prosecutor.

    6. Independent Judgment. The lawyer should continue to exercise independent judgment in informing the entity regarding the applicable law and the lawyer's opinion.

        a. Washington Rules of Professional Conduct. RPC 2.1 requires the lawyer to "exercise independent professional judgment" in advising a client. If the client's action involves illegality, fraud, or requires the lawyer to violate an ethical rule, the lawyer must withdraw. RPC 1.15.

        b. ABA Code of Professional Responsibility EC 7-14. "A government lawyer who has discretionary power relative to litigation should refrain from instituting or continuing litigation that is obviously unfair." Even when the lawyer lacks discretionary power, the lawyer "who believes there is lack of merit in a controversy submitted to him should so advise his superiors and recommend the avoidance of unfair litigation."

      Practice Consideration: If internal conflict exists between officials, and the lawyer is receiving conflicting directions, the lawyer should take the issue to the highest authority within the entity to resolve the conflict and should provide that highest authority with a reasoned legal opinion on the issue. The lawyer may need to have the political body vote on the directions given to the lawyer.

    7. Benefits of the Entity Approach.

        a. Client is clearly defined, thus the lawyer may clearly determine her duties and obligations.

        b. Officials (acting in their official capacity) can rely on the lawyer in the same way as a private person.

      Practice Consideration: If staff members, officials or members of the public appear to believe that you represent them in their individual capacity, clarify to them that you represent the municipality as a whole as directed by the public officials. See ABA Model Rule 1.13(d).

    B.   The Public Interest as the Client.

    1. General Rule. Under the Public Interest Approach, the lawyer represents the "public as a whole" because the government is a composite of the people.

    2. Lawyer as Conscience of Municipality. The lawyer becomes the "maker of the conscience of the municipality."

    3. Consistent with Prosecutor's Role Under RPC 3.8. This approach is consistent with RPC 3.8 for Prosecutors. The prosecutor in a criminal case shall:

        a. Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

        b. Make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

        c. Not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.

    4. Case Law.

        a. "Attorneys representing public bodies are the legal representatives of the general public." Matter of Opinion No. 415, 81 N.J. 318, 407 A.2d 1197, 1198 (1979). "A municipal attorney has a duty to further that municipality's public interest." Id. at 1201.

        b. Elected Attorney General allowed to prosecute appeal over objections of state officers where, in his judgment, an appeal furthers the public interest. Feeney v. Commonwealth of Massachusetts, 366 N.E.2d 1262 (Mass. 1977).

    5. Public Interest Approach in Washington. There is no evidence that Washington follows the public interest approach; however, prosecutors should pay special heed to RPC 3.8 (quoted above). See infra Chapter 6, Section II.B.2 and Section II.E.2 for discussion of RPC 3.8.

    6. Drawbacks of the Public Interest Approach.

        a. Interferes with a lawyer's ability to function effectively as counselor and advisor to municipal officials;

        b. Concept of "public interest" varies from person to person;

        c. Raises separation of power issues (i.e., the lawyer usurps decision-making authority of the executive branch of the governmental entity);

        d. Fails to provide any guidance to regulating a lawyer's conduct and disciplining a lawyer for misconduct; and

        e. Presents no definable client to represent.

III.    DUAL INTERNAL REPRESENTATION

    A. Representing Two Separate Agencies within a Single Municipality.

    1. When Issue Arises. This situation may arise when the lawyer representing the decision-maker (i.e., the City Council) is asked to act as an advocate on behalf of the staff during a contested hearing held before the decision-maker. (Example: appeal to the City Council of a building permit denial with the City Attorney advising the City Council on the law and assisting staff in presenting evidence to support the denial.)

    2. Washington Law Permits Dual Internal Representation. Washington law supports the concept that lawyers for a government entity may represent different departments in the same matter.

        a. Case Law.

          i. Amoss v. University of Washington, 40 Wn. App. 666, 700 P.2d 350 (1985). This case involved an appeal hearing to the University of Washington President and Board of Regents. The parties advocating before the Board were the professor who was denied tenure and the Dean of the Department who denied the professor tenure. One Assistant Attorney General ("AAG") represented and advised the President and Board of Regents. A different AAG from the same office represented the Dean. The two AAGs did not confer with each other, did not share advice or correspondence, and kept separate files. The Court of Appeals found the dual representation acceptable and held that this dual representation did not amount to an appearance of fairness violation or a violation of the Code of Professional Responsibility.

          ii. Sherman v. State, 128 Wn.2d 164, 905 P.2d 355 (1995). This case involved the termination of a medical resident from the University of Washington Medical School program. Three AAGs were involved in this case and represented different interests. One AAG was the supervisor of the other two AAGs. The three AAGs implemented a screening process and kept separate files. The Court held that this dual representation was permissible and did not create a conflict of interest. The Court further noted that appearance of fairness does not apply to attorneys; rather, it applies only to the decision-making body.

        b. Statutes.

          i. RCW 41.14.170: County prosecuting attorneys are required to represent civil service commission (which is a separate decision-making body appointed by the Board of County Commissioners).

          ii. RCW 36.27.020: County prosecuting attorneys are required to represent the County, all county and precinct officers, and school districts (which are separate political subdivisions).

        c. Attorney General Opinions.

          i. WSBA Formal Ethics Opinion, Opin. No. 81 (1960). "[T]he duty of a prosecuting attorney of a county [is] to represent the school districts, within his county."

          ii. AGLO 1972, No. 3. County prosecutor must represent County Disability Board. Disability Boards are independent boards whose members are obtained partially by appointment of the legislative branch, partially by appointment of the executive branch, partially elected by firefighters and law enforcement officers, and one member is appointed by the other Board members. This opinion was based upon RCW 41.26.110 which requires the County to reimburse the board members for incidental expenses. The opinion states that because the board members are entitled to expense reimbursement, the members "must be regarded as county officers." Therefore "it is the duty of the prosecuting attorney of each county to serve as legal adviser to such disability boards."

          iii. AGO 49-51 No. 269. County prosecutor may represent county boards of health. County boards of health are political subdivisions created by the county and whose members are obtained partially by appointment and partially by election.

          iv. AGLO 1971 No. 64. County prosecutor must represent all county agencies, including the county planning commission, county fair board, county parks and recreation board, etc. (emphasis added).

    3. Other Jurisdictions. Other states clearly prohibit dual internal representation due to different state statutes. For example, different attorneys from same firm cannot hold both the position of public prosecutor and planning board attorney for same city. In re Professional Ethics Opinion 452, 432 A.2d 829 (N.J. 1981); see also Monroe Township Board of Adjustment v. Mayor and Township Committee, 511 A.2d 678 (N.J. 1986) (municipal attorney cannot represent both municipality and board of adjustment pursuant to state statute).

    B.  Representing Internal Tribunal and a Party Before that Tribunal.

    1. General Rule. Parties have due process entitlement to an impartial decision-maker, but absent a showing of specific bias, overlapping functions (representing the decision-maker and acting as an advocate) performed by the municipal attorney do not amount to a constitutional violation. Howitt v. Superior Court, 5 Cal. Rptr. 2d 196, 199 (Cal. App. 4 Dist. 1992); Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L.Ed.2d 712 (1975); Kloepfer v. Commission on Judicial Performance, 49 Ca. 3d 826, 782 P.2d 239 (1989).

    2. Non-Adversarial Proceeding. In non-adversary style proceeding, no constitutional due process violation arises when same attorney represents both the decision-maker and a party. Howitt, 5 Cal. Rptr. 2d at 199.

    3. Adversarial Proceeding. In adversary style proceeding, when the same attorney represents both the decision maker and a party, constitutional due process problems may arise. Id.

    4. Resolution of Constitutional Problem. Constitutional problem is solved if representation is undertaken by separate attorneys from same office and the advisor for the decision-maker is screened from the attorney for advocate. Id. at 203.

    5. Rule in Washington. Washington follows the general rule which holds that the assignment of separate public attorneys to represent different public officers in a proceeding preserves the appearance of fairness. See Amoss, 40 Wn. App. at 686; see also discussion supra at Section III.A.2.

Practice Consideration: If a municipal attorney's office consists of more than one attorney, have one attorney represent the decision-maker and the other act as advocate. Make sure a screen is in place between the two attorneys for this issue. Otherwise, the safest procedure in an adversary proceeding is to hire outside counsel to represent either the decision maker or the party. As a practical matter, if the municipal attorney has been advising the staff on the issues involved, that same attorney should not also represent the decision-maker.

Hypothetical: A developer applies to a city for permits to develop a subdivision. The city denies the permits. The City code provides that the applicant may appeal the permit decision to the City Council. A single individual is the City Attorney. The City Attorney usually advises both the City Council and the City building and planning staff. During the appeal hearing, if the individual City Attorney will be acting as an advocate on behalf of the building and planning staff, and no other attorney will solely represent the City Council, then all "advice" or legal opinions of the City Attorney should be given to the City Council in the presence of all parties (i.e., applicant and staff) with the applicant or his attorney being provided an opportunity to respond. The City Attorney should avoid all ex parte contacts with the City Council on this issue and should not be present during any executive sessions discussing the issue. This is especially important if the City Attorney's advice formed part of the basis for the subdivision denial. Further, each party should be entitled to provide a proposed form of the written decision to the City Council. Obviously, the best situation is for two attorneys from the City Attorney's office to represent the different parties (City Council and staff) and for those attorneys to be screened from each other on the issues involved.


Chapter 2: Client Confidentiality

I. GENERAL

    A. Rule of Professional Conduct - Text of RPC 1.6 - Confidentiality. RPC 1.6 provides:

      (a) A lawyer shall not reveal confidences or secrets relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in Sections (b) and (c).

      (b) A lawyer may reveal such confidences or secrets to the extent the lawyer reasonably believes necessary:

        (1) To prevent the client from committing a crime; or

        (2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, to respond to allegations in any proceeding concerning the lawyer's representation of the client, or pursuant to court order.

      (c) A lawyer may reveal to the tribunal confidences or secrets which disclose any breach of fiduciary responsibility by a client who is a guardian, personal representative, receiver, or other court appointed fiduciary.

    B. Statute.

      1. Text of RCW 5.60.060(2). "An attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his or her advice thereon in the course of professional employment." RCW 5.60.060(2).

      2. Common Law Privilege. This same privilege is extended to the client under common law rule. It applies to communications and advice and includes documents which contain privileged communications. The privilege is not absolute, but rather strictly limited to the purpose for which it exists. Pappas v. Holloway, 114 Wn.2d 198, 203-204, 787 P.2d 30 (1990).

      3. The Purpose of the Rule. "[T]o encourage free and open attorney client communication by assuring the client that his communications will be neither directly nor indirectly disclosed to others." Heidebrink v. Moriwaki, 104 Wn.2d 392, 404, 706 P.2d 212 (1985) (quoting State v. Chervenell, 99 Wn.2d 309, 316, 662 P.2d 836 (1983)).

    C.  Difference Between Statute and RPC. "The rule of confidentiality found in Canon 4 of the code is considerably broader than the statutory attorney-client privilege discussed above. The provisions of the code cover both 'confidences', which is coextensive with the statutory privilege, and 'secrets,' which 'refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client'." Seventh Elect Church v. Rogers, 102 Wn.2d 527, 688 P.2d 506 (1984) (comparing Canon 4 of the Canons of Professional Ethics (the precursor to RPC 1.6) to RCW 5.60.060(2)).

    D. General Discussion. The Washington Supreme Court provides a general discussion of the statutes, RPC and Washington case law related to the attorney/client privilege in Dietz v. Doe, 131 Wn.2d 835 (1997).

II.  APPLICATION TO GOVERNMENT ATTORNEYS

    A. Generally.

      1. General Rule Applicable to Government Lawyers. The general rule applies to the attorney for a governmental organization. Port of Seattle v. Rio, 16 Wn. App. 718, 559 P.2d 18 (1977). Public agencies are entitled to effective legal representation. To obtain effective advice, the protection of the attorney-client privilege is essential. This case related to an exception to the Open Public Meetings law. See infra Chapter 2, Section V.  However, the language of the case spells out the basic principle, applicable to public agencies and client confidentiality as well.

      2. Recitation of Basic Principle. "When a communication is confidential and concerns contemplated or pending litigation or settlement offers, the necessity for the attorney-client privilege exists as between a public agency and its lawyers to as great an extent at it exists between other clients and their counsel." Id. at 725.

      3. Conclusion. The attorney's obligations and the client's privilege are both preserved in their essential form with respect to public agencies.

      4. Survival upon Termination of Attorney-Client Relationship. The obligation survives the termination of the attorney-client relationship. Alpha Inv. Co. v. Tacoma, 13 Wn. App. 532, 534, 536 P.2d 674 (1975).

      Note: While this case involved a conflict of interest question, the rationale was the attorney-client privilege and its survival after termination of the relationship.

      5. Confidentiality and Avoidance of Appearance of Professional Impropriety. The obligation may have additional impact, as in Alpha Inv. Co. v. Tacoma, 13 Wn. App. 532, 536 P.2d 674 (1975), where the attorney's duty to maintain a client's confidences, combined with the need to avoid even the appearance of professional impropriety meant that the client could prohibit a former public agency attorney from representing an adverse party without having to prove possession of confidences or disclosure thereof. "Only by application of this rule can the client, Pierce County and all its citizens, be absolutely certain that no breach of confidence was the cause of any adverse ruling which might occur in this case." Id. at 535.

    B.  Exceptions.

      1. Court Order. Attorney may disclose information if under court order. Seventh Elect Church v. Rogers, 102 Wn.2d at 534. However, a trial court ordering disclosure should stay any contempt proceeding with respect to a good faith claim of privilege pending appellate review of the issue. Id. at 536. See also Dike v. Dike, 75 Wn.2d 1, 448 P.2d 490 (1968). But see Matter of Kerr, 86 Wn.2d 655, 662 n.2, 548 P.2d 297 (1976), where a claim of privilege did not justify disobedience of a subpoena duces tecum duly served.

      2. Furtherance of a Crime. The attorney-client privilege is not applicable to a client's remarks concerning the furtherance of a crime, fraud or to conversations regarding the contemplation of a future crime. State v. Hansen, 122 Wn.2d 712, 720, 862 P.2d 117 (1993). See State v. Richards, 97 Wash. 587, 167 Pac. 47 (1917); State v. Metcalf, 14 Wn. App. 232, 540 P.2d 459 (1975), rev. denied, 87 Wn.2d 1009 (1976).

      3. Employees of Client Corporation. See Odmark v. Westside Bank Corp. Inc., 636 F. Supp. 552 (W.D. Wa. 1986) (joint privilege employees and corporation-corporate counsel did not have an attorney-client relationship with individual officers and employees). But see Hearn v. Ray, 68 F.R.D. 574 (Wash. 1975) (state prison officials are "clients" of the Attorney General; but note that some communications not included).

      4. Two Clients with Same Attorney. Note the possible analogy to the cases of two clients with the same attorney. See Cummings v. Sherman, 16 Wn.2d 88, 132 P.2d 998 (1943), where the impact on the privilege was to defeat it. This is why the public agency counsel must not forget that the client is the agency not the individual official, though the privilege may cover the official. While the agency may act through the decisions of the official, the distinction is still important, particularly in ethical situations where it needs to be remembered who owns the privilege and where the attorney's primary loyalty must reside. See infra Section III.B.2 (Recent Developments) below.

    C.  Waiver.

      1. General Rule. The privilege with respect to communications between a client and an attorney is the privilege of the client alone, and it may be waived by the client testifying or otherwise alluding to the substance or content of the communication. Hunt v. Blackburn, 128 U.S. 464, 9 S. Ct. 125, 32 L. Ed. 488 (1888), cited in Malco Manufacturing Company v. Elco Corporation, 307 F. Supp. 1177, 1178 (E.D. Pa. 1969); see also Eastern Technologies Inc. v. Chem-Solv. Inc., 128 F.R.D. 74, 76 (E.D. Pa. 1989).

      2. Washington Cases in Accord. The privilege may be waived, but waiver must be distinct and unequivocal. State v. Ingels, 4 Wn.2d 676, 713, 104 P.2d 944 (1940). The privilege belongs to the client and not the attorney, and actions, such as testimony by the client, may constitute waiver. Id. at 714.

      3. Malpractice Waiver. The privilege is considered waived if the attorney is sued by the client for malpractice. Pappas v. Holloway, supra, 114 Wn.2d 198, 204, 787 P.2d 30 (1990). See also Stern v. Daniel, 47 Wash. 96, 98, 91 P. 552 (1907).

      4. Implied Waiver. In Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975), the United States District Court postulated an implied waiver test. There is an implied waiver where (a) there is an affirmative act, such as filing a suit or testifying on the subject, (b) the affirmative act places the protected communication in issue, and (c) an application of the privilege would deny the other party information vital to the defense. In Pappas v. Holloway, supra, the Washington Supreme Court followed Hearn, though limited to the facts of that case.

      Hypothetical: A disappointed bidder files an action seeking to enjoin award of the contract by a municipality claiming favoritism and conflict of interest. The City wishes to present the testimony of the Mayor to the effect that the contract was awarded in accordance with the law and after advice by the City Attorney. If the testimony is presented that the City officials relied on attorney advice, is the privilege waived with respect to the advice given? Under the above waiver tests the answer is yes.

      Practice Consideration: Caution should be exercised with respect to how far the door may be opened with this type of testimony. If the attorney is in fact a critical witness and the client wants to waive the privilege and present the testimony, it would seem advisable to document this with a distinct and unequivocal waiver executed by an official authorized to act for the client.

      5. Bad Faith or Fraudulent Conduct. The attorney-client privilege may be lost through bad faith dealings or fraudulent conduct. Seattle Northwest Securities Corp. v. SDG Holding Co., 61 Wn. App. 725, 812 P.2d 488 (1991); Escalante v. Sentry Ins. Co., 49 Wn. App. 375, 743 P.2d 832 (1987), rev. denied, 109 Wn.2d 1025 (1988).

      6. Inadvertent Waiver. There is a split of authority with respect to accidental release of information. Some courts hold any disclosure, however unintentional, defeats the privilege. See, e.g., In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989). Other courts reach the opposite result, arguing that only an intentional relinquishment of a known right is effective. Georgetown Manor, Inc. v. Ethan Allen, Inc., 753 F. Supp. 936, 938 (S.D. Fla. 1991); Lois Sportswear v. Levi Straus & Co., 104 F.R.D. 103 (S.D. N.Y. 1985).

        a. No Washington case on this issue has been discovered. However the other Washington cases on waiver suggest that our court will be receptive to a third approach, which is the balancing test applied persuasively by a number of courts. See Shriver v. Baskin-Robins Ice Cream Co. Inc., 145 F.R.D. 112 (D. Colo. 1992).

        b. The balancing test considers five factors in evaluating an inadvertent release of information to determine if the privilege should be regarded as waived by the release. These factors are: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope of discovery; (4) the extent of the disclosure; and (5) any overriding issues of fairness. Shriver, 145 F.R.D. at 115. See also Westinghouse Electric Corp. v. Republic of Philippines, 951 F.2d 1414 (3rd Cir. 1991); Kansas City Power & Light Co. v. Pittsburg Midway Coal Min. Co., 133 F.R.D. 171 (D. Kan. 1989).

        Practice Consideration: By far the most important of these factors is the first one, because it is the one factor over which the attorney will have the most control. Documents, particularly communications to the client which are privileged, should be identified as such to reduce the possibility of inadvertent release. A large and complex file ought to have a privilege subfile, so that documents which should not be released are filed appropriately. (There is nothing worse than discovering that the engineering documents that comply with your opponent's discovery request fill 28 archive boxes and the client never created any subfile for attorney-client communications.)

        c. Does a press leak by an official constitute wavier? Probably not. The privilege belongs to the public agency, not the individual official who would be acting for their own interests. The extent of the precautions taken and other factors noted above could then come into play.

III.    APPLICATION TO OFFICIALS OF THE PUBLIC ENTITY

    A. Which Employees and/or Officials are Covered by the Privilege?

      1. Control Group Theory. The control group theory holds that the privilege applies "if the employee making the communication, of whatever rank he may be, is in a position to control or even to take a substantial part in the decision about any action which the corporation may take upon the advice of the attorney, or if he is an authorized member of a body or group which has that authority." City of Philadelphia v. Westinghouse Corp., 210 F. Supp. 483, 485 (E.D. Pa. 1962), cited in Barr Marine Products Co. Inc. v. Borg-Warner, 84 F.R.D. 631, 634 (E.D. Pa. 1979). See also Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962).

      2. Extent of Control Group. "While the attorney-client privilege may in certain instances extend to lower level employees not in a "control group, "the privilege extends only to protect communications and not the underlying facts." (citation omitted) Wright v. Group Health Hosp., 103 Wn.2d 192, 195, 691 P.2d 564 (1984).

      3. Validity of "Control Group" Concept. In Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), a corporation's general counsel conducted an internal investigation regarding certain questionable payments to foreign governments. The federal government sought to compel production of communications with the attorney. The Court of Appeals found that the communications with certain overseas employees were not communications with officers and agents responsible for directing the corporation's actions in response to legal advice, and thus were not communications with the client. This was clearly a "control group" analysis.

        a. The Supreme Court reversed the Court of Appeals in a decision which severely criticized the "control group" analysis. "In the corporate context, however, it will frequently be employees beyond the control group  .  .  .  who will possess the information needed by the corporation's lawyers." Upjohn, 449 U.S. at 391, 66 L. Ed. 2d at 592.

        b. "The control group test adopted by the court below thus frustrates the very purpose of the privilege by discouraging the communication of relevant information by employees of the client to attorneys seeking to render legal advice to the client corporation." Upjohn, 449 U.S. at 392, 66 L. Ed. 2d at 593.

        c. However, while criticizing the control group test for potential uncertainty of application, the Court noted that the communications concerned "matters within the scope of the employees' corporate duties  .  .  ." Upjohn, 449 U.S. at 394, 66 L. Ed. 2d at 594. Furthermore, the Court noted that it was only deciding this particular case on its facts and that these matters would, of necessity require resolution on a case by case basis. (This approach hardly addresses the criticism of the control group analysis and leaves the matter of the scope of the employee's duties as a relevant consideration.)

        d. It should also be noted that Wright v. Group Health Hosp., supra, in which the Washington Supreme Court used a control group approach was decided three years after Upjohn. Consequently, the question of an employee's duties and responsibilities will still require some consideration by counsel.

        Hypothetical: A janitor is involved in a disciplinary matter, and claims that what is really happening is discrimination. His foreman, a working level supervisor, attends a meeting with the next level supervisor and the County's Attorney to discuss the discrimination claim. Are discussions which take place in front of the low level supervisor privileged? What about working supervisors or foremen? Arguably those employees and officers who are a necessary part of the process to make the appropriate decision should fall within the ambit of the protection.

    B.   Discussion.

      1. Individual v. Corporate Identity. Additionally, these questions may be subject to political controversies, in which the legislative body and the public may be divided as to where the public's interests lie. Since the public body can only act through individuals, the individuals' interests in confidentiality must be balanced against the public's interests in the actions of the particular governmental body. Moreover, there is a certain tension between the individual actor and the corporate entity because in circumstances where the actor has done wrong the corporate entity may need to defend itself on the basis of the corporate official's wrong doing. (On the other hand, high enough officials make decisions for the company that may include determining who is included in the defense of a claim.)

      2. Recent Development. In Re Grand Jury Subpoenas Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied, 1997 U.S. LEXIS 3898 (June 23, 1997). This widely reported development in the Whitewater case surprised many commentators by drawing a distinction between the status of government attorneys and corporate attorneys. Previously the argument, advanced elsewhere in this chapter, had been to reason from the premise that the logic of Upjohn applied equally to the government attorneys. The Eighth Circuit has altered that assumption.

        a. Facts. The Office of the Independent Counsel (OIC) subpoenaed documents created during a meeting between Hillary Clinton, her personal attorney and attorneys from the Office of Counsel to the President. The White House declined to produce the documents asserting attorney-client privilege and attorney work product doctrines. The documents are notes taken by an Associate Counsel to the President.

        b. Procedural History. The White House asserted both attorney-client privilege and the work product doctrine (abandoning claims of executive privilege). Mrs. Clinton personally appeared and asserted her own attorney-client privilege. The lower court avoided the issue of whether a federal governmental entity could assert the privilege to avoid response to a grand jury subpoena and decided that the conversations (and notes) were privileged because both Mrs. Clinton and the White House had a "genuine and reasonable belief" (mistaken or not) that the conversations were privileged.

        c. 8th Circuit Opinion. The Court of Appeals overruled the District Court. The Court began with a clarification of the issues. The privilege under consideration is strictly a governmental privilege, not the one existing between Mrs. Clinton and her personal attorney. Further the decision clearly limits itself to this particular context, leaving future courts to explore other contexts of the privilege and its applicability. The Court regarded two cases as most important in deciding this case: United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) and Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981).

        d. Analysis of the Opinion. The issue was narrowly drawn by the Court (whether an entity of the federal government could use the attorney-client privilege to avoid complying with a subpoena from a federal grand jury). The case was, as the court noted, decided upon the basis of federal common law and in the context of a criminal matter. The court also found that Mrs. Clinton was not the client of the White House Counsel's Office and that her reasonable though mistaken belief that the communications were confidential was irrelevant. Additionally, a number of statements in the opinion, arguably dicta, provide some concern for arguments that might be made in other contexts respecting the privilege.

          i. Privileges are exceptions to the general rule and not to be lightly treated, expansively applied or construed in derogation of the truth.

          ii. Nevertheless, important differences between the government and nongovernmental organizations, such as business corporations, weigh against the application of Upjohn to the Whitewater case.

          iii. The strong public interest in honest government and in exposing wrong doing by public officials would be ill-served by recognizing a governmental attorney-client privilege applicable to criminal proceedings inquiring into actions of public officials.

          iv. An official who fears that he or she may have violated the criminal law and wishes to speak with an attorney in confidence should speak with a private attorney, not a governmental attorney.

          Hypothetical: The Mayor advises you that you should win the upcoming law suit easily because he took the precaution of secretly taping all his meetings with his former deputy, the current plaintiff. Your client is the City, not the Mayor. While in most cases the official acts for and on behalf of the client, he or she does not do so when violating the law.

          Practice Consideration: When is it necessary for a governmental attorney (ethically) to advise a public employee or official that he/she should secure private counsel? Any time the attorney believes that the interests of the individual interests of the official will conflict with those of the public agency. If the only defense available to the public agency is that the official acted improperly and without authority then this would be necessary.

      3.   Conclusion. Not all public employees are necessarily "the client" for purposes of the attachment of the privilege. However, limiting the privilege to employees or officers who have the authority to speak for and bind the corporation is too restrictive. See discussion below.

      Practice Consideration: An attorney's meeting and discussion with employees, if they are not involved with the decision process, may well not be privileged. Even a meeting with the control group, at which others are present may cause some difficulty. If the conversation at a staff meeting is moving into areas of attorney-client privilege, then the attorney needs to be conscious of who is present and whether the attendance needs to be reduced to preserve the privilege. If employees who are clearly not part of the "control group" must be interviewed to seek information for a control group decision, it would be best done in a separate meeting.

      4. Exceptions to RPC 1.6 in the Public Arena.

        a. Unlawful Action. Under certain circumstances it may appear to counsel that the public agency is contemplating government action which is not lawful. The rule states that the attorney may reveal a client secret to prevent the client from committing a crime.

        Question: Is the government attorney free of any obligation to disclose wrongful conduct as long as it is not criminal? Moreover, the rule is stated in terms of future conduct, not conduct that has already occurred. But the public agency lawyer has an easier answer than the private counsel. The crime, if any, would have been committed by an individual. The commission of criminal acts could never be within the scope and course of employment of a public official. Hence, when the individual commits criminal acts, such individual could not be acting as a representative of the public agency and thus could not be the client or acting for the client under these circumstances. This analysis is easy where the illegality is clear.

        b. Breach of Client's Fiduciary Duty. A narrow construction would point out that a government is not likely to be a guardian, personal representative, receiver, or court-appointed fiduciary. A more liberal construction would take heed of the fact that the public agency may have fiduciary duties in several settings, such as, for example, the holders of employee retirement funds.

        Hypothetical: As a municipal attorney advising a retirement system official you are asked to review an employee's eligibility for retirement. The eligibility depends on an interpretation of a particular provision of the retirement law. Based on your legal research, you believe the provision would be interpreted in the employee's favor and so advise the official. The retirement system official states that the system prefers another interpretation and advises you to keep your opinion of the error in their interpretation confidential. You later learn that the employee was told, "Our lawyers looked into it and you are not entitled to the benefit."

        Analysis: Your legal advice to the client is privileged and you may not be questioned with respect to it. The fact that the employee may have an arguable claim is a client secret, the disclosure of would violate the privilege. It would also be embarrassing and detrimental to the "official" who administers the system. However, would it be detrimental to the client, which is the public retirement system? The system has no interest in unfairly denying benefits, so that the "official" in charge may look good. Moreover, the concealment of the potential retirement rights violates the "official's" fiduciary duty to administer the fund for the benefit of the members. But, this analysis only works if the public official is intentionally concealing from the claimant a benefit that the claimant has a right to expect. What if the matter involves an interpretation adopted by the public official, which, while the weaker argument, is still plausible? Your advice is that, if challenged, it is likely that the claimant will prevail. The public official replies that if you maintain the client's secret, there will not be a challenge to the preferred interpretation. Does the attorney's duty of zealous representation and the privilege together result in a proper silence? Can counsel go so far as to disclose the possibility of another interpretation and advise the claimant to seek independent counsel?

    C.   Indemnity for Public Officials. Many municipalities have ordinances providing indemnity for their officers which require a determination that the official acted within the scope and course of his or her authority and is cooperating appropriately in the defense of the action.

      Hypothetical: Are communications with an official of a public agency, which would be privileged under normal circumstances, rendered non-privileged because the official has been found to be acting beyond the scope of his employment? No. Even if it is determined that the official's status does not entitle him or her to a defense, the communication itself would be protected since it occurred through the official as a representative of the client.

      Practice Consideration: If this type of enactment protects the officials of a public agency and litigation is commenced in which officials are named individually, the determination of status should proceed expeditiously. The public agency attorney may enter an appearance on behalf of all defendants, but an official determination is desirable before answering the complaint in most cases.

IV.   PUBLIC DISCLOSURE LAW

    A. Public Disclosure Act. A related area of the law is the Public Disclosure Act, Chapter 42.17 RCW. Unless advice to clients is properly privileged, it may be subject to disclosure.

    B. General Rule. As a general rule all documents should be regarded as public unless a specific exception applies. See Hafemehl v. University of Washington, 29 Wn. App. 366, 628 P.2d 846 (1981). Exemptions from disclosure are narrowly construed to effect broad public policy favoring disclosure. The Public Disclosure Act is interpreted liberally to effect this purpose of open government. Also, note that, while interpretations of the Freedom of Information Act may be used on a general basis, the Washington Supreme Court has commented on the fact that the statutes are significantly different. See, e.g., Servais v. Port of Bellingham, 127 Wn.2d 820, 904 P.2d 1124 (1995); Dawson v. Daly, 120 Wn.2d 782, 845 P.2d 995 (1993). See generally the MRSC publication Public Records Disclosure for Washington Cities and Towns, Report No. 34 (1996).

V.   OPEN PUBLIC MEETINGS

    A. Open Public Meeting Act Generally. This statute deals with when and under what circumstances a public attorney may advise an assembled council or board.

    B. Basic Rule. The Open Public Meetings Act (the "Act"), Chapter 42.30 RCW, is to be liberally construed as remedial in nature. Port Townsend Publishing Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977).

      1. General Rule. "All meetings of the governing body of a public agency shall be open to the public and all persons shall be permitted to attend any meeting of the governing body of a public agency, except as otherwise provided in this chapter." RCW 42.30.030.

      2. Applicability of the Act. The Act applies to "all public commissions, boards, councils, committees, subcommittees, departments, divisions, offices, and all other public agencies of the state and subdivisions thereof." RCW 42.30.010. See definition of "public agency" in RCW 42.30.020(1).

      3. Purpose of the Act. The purpose of the Act is to permit the public to observe all steps in the making of governmental decisions. The governing body is the body which actually makes the policy and rules. Cathcart v. Anderson, 85 Wn.2d 102, 530 P.2d 313 (1975). A subcommittee is required to comply with the Act when acting on behalf of the governing body. AGO 1986, No.16.

      4. Violation of the Act. Action taken in violation of the Act is null and void. RCW 42.30.060. Mason County v. PERC, 54 Wn. App. 36, 40-41, 771 P.2d 1185 (1989), rev. denied, 113 Wn.2d 1013, 779 P.2d 730 (holding that the Act applies to collective bargaining sessions with decision-making representatives of the public agency).

    CExceptions.

      1. No Official Business Transacted. "Action" means the transaction of any official business of the public agency. Matter of Recall of Estey, 104 Wn.2d 597, 707 P.2d 1338 (1985). A meeting occurs only when action takes place. A gathering of members of the governing body does not automatically constitute a meeting. Id.

      2. Governing Body. The Act applies to governing bodies of Washington public agencies. Advisory committees including agencies which cross state boundaries are not subject to the law. U.S. v. State of Oregon, 699 F. Supp. 1456, (D. Oregon, 1988), aff'd, 913 F.2d 576, cert. denied, 501 U.S. 1250, 111 S. Ct. 2889, 115 L. Ed. 2d 1054.

      3. Matters Relating to Litigation.

        a. This exception is rooted in the need for public agencies to have effective legal representation. To obtain effective advice, the protection of the attorney-client privilege is essential. "When a communication is confidential and concerns contemplated or pending litigation or settlement offers, the necessity for the attorney-client privilege exists as between a public agency and its lawyers to as great an extent at it exists between other clients and their counsel." Port of Seattle v. Rio, 16 Wn. App. 718, 725, 559 P.2d 18 (1977).

        b. "A communication between an attorney and a public agency client must pass a four-step test to qualify as a exception to the right-to-know statutes: (1) The communication must originate in a confidence that it will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained  .  .  .  ." Id. at 725.

VI.     EXECUTIVE SESSIONS

    A. Statute (RCW 42.30.110).

      1. Generally. Executive sessions are exempt from the Open Public Meetings Act and its requirements.

      2. When Authorized. Executive sessions are authorized in eleven specified circumstances. The principle justification for each exemption is that the potential for public loss by public discussion of the particular matter outweighs the potential gains of a public process. Some areas with most potential for legal concern are noted below:

        a. Acquisition of real property where public knowledge would increase the price including discussions of the sale or lease price of property. Port of Seattle v. Rio, supra, 16 Wn. App. at 725.

        b. Review of negotiations on the performance of publicly bid contracts.

        c. Consideration of qualifications of applicants for public employment, including general discussions as to the advisability and potential funding for hiring future unnamed employees. Port Townsend Publishing Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977).

        d. Consideration of complaints or charges brought against a public officer or employee. Columbian Pub. Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983).

    B.   Additional Considerations.

      1. Change of Subject. What should counsel do when, in executive session, the discussion wanders away from the topic for which the executive session was convened? How far from the topic must the discussion be before the attorney has a duty to advise that the executive session is no longer authorized?

      Hypothetical: In an executive session to discuss litigation relating to a City's zoning ordinances, the Mayor suddenly says, "Now that the media's out of here, let's plan how we're going to adopt this new newspaper tax." Despite cautioning the Council that this topic is not authorized for executive session, the discussion continues on the issue of the tax. What is the attorney's ethical duty with respect to the unlawful meeting? The attorney should warn the public body that it is authorized to conduct an executive session for certain limited purposes, and if it wishes to proceed with other matters, the public meeting should reconvene.

      2. Inadvertent or Intentional Disclosure as Waiver. Can an executive session's confidentiality be waived by inadvertent or intentional disclosure of the discussions? Probably not, as the individual making the disclosure (whether inadvertent or intentional) is not acting on behalf of the public body. Perhaps the analogy should be drawn to the earlier analysis of waiver of privilege, and who is and is not the client.

      3. Subject Raised in Public Meeting. How should a public agency attorney deal with the circumstance where matters which could or should be addressed in executive session are raised in the council or board meeting by a single member? It is recommended that a reminder of the potential need for executive session be made. In the fact of persistence the position recommended is that executive session is the decision of the public body and if directly asked to address privileged matters in public the privilege needs to be waiver by a majority vote. Remember it is the client, acting through its board or council, which owns and can waive the privilege.

VII.   ELECTRONIC COMMUNICATIONS AND OTHER TECHNOLOGY

    A. Basic Premise.

      1. While information may exist in an electronic form, it is not different in character. Electronic information should not, in theory, be treated any differently from a legal point of view. An electronic communication is still a communication. See Anti-Monopoly v. Hasbro, 1995 WL 649934 (S.D.N.Y 1995), not reported in Fed. Supp., citing Sanders v. Levey, 558 F.2d 636 (2d Cir. 1976). This is the probable application in state law as well.

      2. For example, an e-mail message to an attorney may be as privileged as the contents of a phone call, or a letter, or a verbal communication, it simply comes in a different form. The key is to avoid being misled by the manner of the communication and focus on the content of the communication.

      3. Consequently, it is reasonable to assume that public agency e-mail will be generally discoverable under public disclosure laws.

      Practice Consideration: The public officials using e-mail should be put on notice in the strongest possible terms that they are creating official records subject to disclosure in almost all instances. This form of communication is not for casual discussion or joking, which could come back to haunt the agency. The public agency attorney should encourage the development of official e-mail policies. Attorney communications on e-mail, if privileged, should be so labeled.

    B.  Future Problems.

      1. Retention Policies. There are three possible approaches:

        a. Treat the records in the same manner as if they were paper records. Retain those which, if paper, would be retained and discard those which, if paper, would be discarded.

        b. Discard all e-mail on grounds it is like transitory communication like telephone conversations. (Apparently NASA has decided on this approach.) This seems questionable legally.

        c. Save all e-mail. Probably doomed as a policy as impractical. E-mail files become massive once people begin to use it.

        d. Some content analysis will probably be necessary and certain e-mail retained under the policy of a. above. I doubt that the other options are practical. There has been some discussion about the form of e-mail storage. Should retained e-mail be printed and stored on paper or is it sufficient to archive a disk? In theory the disk should be sufficient, but as the technology changes there may be difficulties in retrieving older material.

    2.  Effect of Other Electronic Capabilities. Other electronic capabilities will affect the public agency in various ways. For example, there is no reason why a City Council meeting could not occur in "public" through an electronic medium, such as a conference call, with all, or some of the members present electronically, provided that there was also some provision for the electronic presence of the public.

    Question: Could a City Council meeting be held on the internet? There is no insurmountable reason why this could not be so, as long as provision was made for the attendance of the public at some point where they could interact with the meeting in progress.


Chapter 3 Attorney Disqualification

I.   CONFLICTS

    A. Identification of Client. The first question that must be asked when determining whether or not a government attorney should be disqualified due to conflict of interest is, "Who is the client?

    B. General Rule - RPC 1.7: Conflict of Interest. A lawyer cannot represent a client if that representation will be directly adverse to another client unless the conflict is limited and the client consents in writing. See RPC 1.7(a)(1) and (2). In addition, a lawyer shall not represent a client if that representation may be materially limited by the lawyer's other responsibilities or own interests unless the client consents in writing. See RPC 1.7(b)(1) and (2). In addition, when a lawyer who is not a public officer or employee represents a discrete governmental agency or unit that is part of a broader governmental entity, the lawyer's client is the particular unit represented, not broader governmental entity of which the agency is a part, unless there is a written agreement otherwise or the broader governmental entity gives the lawyer timely notice to the contrary. See RPC 1.7(c)(1) and (2), and their respective subparts. See infra Chapter 6, Section IV.A. for discussion of criminal issues.

      1. General Considerations - Identifying Whether a Conflict Exists. A government lawyer must continually examine:

        a. The lawyer's personal interests;

        b. The interests of external constituencies, such as former or current private practice clients and law firm members; and

        c. The interests of other governmental employees and officials. Charles W. Wolfram, Modern Legal Ethics, 450 (West Publishing Co. 1986).

      2.   Government Lawyer's Role.

        a. Policy Maker. If the lawyer's role is more "policy making" oriented, conflicts with individuals are considered policy differences and are not a matter for regulation. Wolfram at 450. See Government Lawyers and Conflicts of Interest, 3 Georgetown Journal of Legal Ethics, 191, 191-192 (1989).

        b. Litigator. If a lawyer's role is as a litigator, the conflict's issue is treated like that of a counselor in private practice, and confidentiality and the client's interests have more relevance in this situation. Wolfram at 450.

      3.  Conflicts of Interest and Lawyer Partiality.

        a. Washington Case Law. Prior to 1992, no Washington case addressed the issue of whether prosecuting one's relatives is a per se conflict of interest requiring disqualification. The Washington Rules of Professional Conduct do not speak directly to the issue. State v. Ladenburg, 67 Wn. App. 749, 751, 840 P.2d 228 (1992).

        b. Nature of Lawyer's Interest. The lawyer's personal interest may be financial, emotional, or political. Wolfram at 453.

          i. The remote possibility of inappropriate motives is not itself disabling. Wolfram at 453. And, an attorney's good faith is not material to disqualification based upon privileged information. State v. Stenger, 111 Wn.2d 516, 523, 760 P.2d 357 (1988).

          ii. A prosecutor cannot represent a public body if the prosecutor's personal interests or beliefs will materially limit the representation. Westerman v. Cary, 125 Wn.2d 277, 300, 885 P.2d 827 (1994).

          iii. Chapter 42.23 RCW is the code of ethics for municipal officers. RCW 42.23.030 prohibits any municipal officer from benefiting, directly or indirectly, in any contract which may be made by, through or under the supervision of such officer, or for the benefit of her office, or accept, directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein. See Barry v. Johns, 82 Wn. App. 865, 920 P.2d 222 (1996). See also infra Chapter 4, Section I.F.

          RCW 42.23.070 prohibits any municipal officer from: (A) using his or her position to secure special privileges or exemptions for anyone; (B) giving or receiving or agreeing to receive any compensation, gift, reward, or gratuity from a source except the employing municipality, for a matter connected with or related to the officer's services; (C) accepting employment or engaging in business or professional activity that the officer might reasonably expect would require or induce him or her to disclose confidential information acquired by reason of his or her official position; and (D) disclosing confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit. See infra Chapter 4, Section F.4.

          Chapter 42.22 RCW contains the statutory duties for officers and employees of state agencies and legislative employees including lawyers.

          iv. An emotional interest, in order to be disqualifying, must create a bias or hostility in the government lawyer sufficiently strong to interfere seriously with the lawyer's exercise of public responsibility. See Wolfram at 453.

          v. Political interest can also create serious conflicts of interest on the part of a prosecutor. But the remote possibility of inappropriate motives, alone, is not enough for disqualification. See Wolfram at 453.

      4.   Conflicts of Interest and the Appearance of Fairness Doctrine.

        a. General Rule. The appearance of fairness doctrine states that a judicial proceeding is valid only if a reasonably prudent and disinterested observer would conclude that all parties obtained a fair, impartial, and neutral hearing. State v. Ladenburg, 67 Wn. App. 749, 754-55, 840 P.2d 228 (1992). While a conflict of interest as defined in the RPC may not be present, a violation of this doctrine can incur harsh results.

        b. Not Applicable on Commencement of Proceeding. Note that this doctrine does not apply once the adversary proceeding has commenced; however, it may apply when the prosecutor is acting in a quasijudicial capacity (i.e., determining what charges to bring, plea bargaining). Id. See generally State v. Tolias, 84 Wn. App. 696, 929 P.2d 1178 (1997). In this case the district attorney violated the appearance of fairness doctrine by first trying to mediate between two adverse parties and subsequently prosecuting one of the parties on the matter originally at issue.

        c.  Not Applicable to Legislative Actions. The appearance of fairness doctrine does not apply to legislative actions. Barry v. Johns, 82 Wn. App. 865, 920 P.2d 222 (1996); Zehring v. City of Bellevue, 99 Wn.2d 488, 494, 663 P.2d 823 (1983).

        d. Effect of Violation. An appearance of fairness violation may void an entire decision by an entity.

      5.  Dual Public Service - Actual Conflict is Required.

        a. No Implied Conflict in Dual Representation. When an attorney acts as a prosecuting attorney as well as an attorney for the P.U.D. (or a similar organization) there is not an implied conflict of interest. See WSBA Formal Ethics Opinions, Opin. No. 59 (1959) (Prosecuting Attorney as Attorney for P.U.D.). In this case, the ethics committee determined that both jobs required the attorney to represent the public interest and therefore, there was no conflict. However, the committee did comment that in the event of an actual controversy (legal or factual) between the two public bodies, the attorney would have a duty to withdraw from one representation.

          i. Compare Westerman v. Cary, 125 Wn.2d 277, 300-301, 885 P.2d 827 (1994). This case states that a conflict of interest arises when a prosecutor represents two different public bodies with directly adversarial positions in the same case. The court found that there was a conflict of interest in dual public service. In this case, the prosecutor represented two different public bodies that took directly adversarial positions in the same case. The court said that, in this circumstance, the prosecutor should withdraw from one representation and have a special prosecutor appointed.

        b.  Likelihood of Actual Conflict is Relevant Inquiry. It does not follow necessarily that a lawyer employed by the government subdivision is precluded from other employment simply because a conflict of interest could possibly arise. See WSBA Formal Ethics Opinions, Opin. No. 149 (1971) (Lawyer Serving as Prosecuting Attorney and City Councilman Simultaneously). In this opinion, the ethics committee concluded that dual public service is not a per se ethics violation because conflicts arising between the positions of prosecuting attorney and city councilman are not sufficiently likely to arise as to warrant a mandatory ethics violation. Rather, the relevant inquiry is, "what is the likelihood that a conflict of interest will arise or would appear so in the eyes of the public?"

        c. Conflict May Arise Where Lawyer Handles Civil Enforcement and Prosecution in Related Laws. A conflict of interest may arise where a government attorney has the responsibility of enforcing civil remedies and prosecuting persons for violating the penal version of the related law. For example, a conflict may arise where the lawyer uses special investigative techniques that can be used in the civil area but may not be used solely for the purposes of preparing a criminal case. In this situation, the attorney is required to act in "good faith" and not abuse her power. Wolfram at 452.

    C.   Conflict of Interest; Prohibited Transactions; Current Client.

      1. See supra Westerman, 125 Wn.2d at 300, and WSBA Formal Ethics Opinions, Opin. Nos. 59 and 149.

      2. See Chapter 42.23 RCW et seq., Chapter 42.22 RCW et seq., and infra Chapter 4, Section VI.

    D.  RPC 1.9 Conflict of Interest; Former Client.

      1. General Rule. A lawyer who has formerly represented a client in a matter shall not thereafter:

        a. Represent another person in the same or substantially related matter in which that person's interests are materially adverse to the former client's interests unless the former client consents; or

        b. Use confidences or secrets relating to the representation to the disadvantage of the former client.

      See infra Section VI.C.2 on part-time government practice; WSBA Formal Ethics Opinions, Opin. No. 161 (1975) (Government Attorneys in Private Practice); and Wolfram at 454.

      2.  Same or Substantially-Related Matters.

        a. Prior Representation - Unrelated Criminal Charges. See State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988). In this case, the prosecutor was disqualified from trying a death penalty murder case because the prosecutor had previously represented the defendant on unrelated criminal charges. The court concluded that the prosecutor's knowledge of confidential information regarding the defendant's past criminal conduct prohibited the prosecutor from making an impartial decision. In other words, the confidential information was closely interwoven with the prosecutor's exercise of discretion in seeking the death penalty. The court utilized the factual context analysis.

        b. Prior Representation - Related to Official Duties Only. Compare State v. Greco, 57 Wn. App. 196, 787 P.2d 940 (1990), review denied 114 Wn.2d 1027, 793 P.2d 974. Here, a county prosecutor who had previously represented a county officer in actions relating to the officer's official duties, but not the officer's personal affairs, did not have a conflict of interest when prosecuting the officer. Id. at 201.

        c. Similar or Related Factual Contexts. See State v. Hunsacker, 74 Wn. App. 38, 873 P.2d 540 (1994). This case interprets what is meant by substantially related matters. It says two matters are substantially related if the factual contexts of the prior and present representations are similar or related. The question should be, "is any fact in the prior representation so similar to any fact that is projected to be involved in the present representation that an attorney would consider it useful in advancing the interests of the client in the present representation?"

      3.  Disqualification Under RPC 1.9.

        a. Prior Representation or Professional Consultation on Closely Related Matters. A conflict of interest sufficient to disqualify a prosecuting attorney under RPC 1.9 does not exist unless the accused previously consulted professionally, or was personally represented by, the prosecutor with respect to the crime charged or a closely related matter. Stenger, 111 Wn.2d at 520; Greco, 57 Wn. App. at 201.

        b. Side-Switching. A lawyer is disqualified from filing suit against an agency which the lawyer had previously counseled on the issue of legality but later changed her mind as to the legality. The court found that it was likely that government officers who were formerly represented by the lawyer disclosed confidential information to her. Wolfram at 454.

        c. Additional Cases. See also infra Chapter 6, Section VI.C.3. for additional cases in criminal context.

    E.   RPC 1.10 Imputed Disqualification; General Rule. While lawyers are associated with a firm, they cannot knowingly represent a client when another lawyer in that firm would be prohibited from representing that client. In addition, the firm cannot represent a client that a lawyer had previously represented on a similar matter in another firm. Note that the client can waive the disqualification under the conditions stated in Rule 1.7.

      1. Prosecuting Attorney's Office. When a prosecuting attorney of a county is disqualified from acting in a criminal case based on his representation of the defendant in the same case or in a matter so closely interwoven with the same case as to be in effect a part of that case, the entire attorney staff directed by the prosecuting attorney will ordinarily be disqualified from prosecuting the case, and a special deputy attorney should be appointed. Stenger, 111 Wn.2d at 522. There is a possibility that the attorney with the conflict may be screened (barred from participating in the prosecution) so as not to disqualify the entire prosecuting attorney's office. Id. at 522-23.

      2. Attorney General's Office. A conflict of interest arising from multiple representation by the Attorney General's Office in the performance of its legal duties can be obviated if effective screening mechanisms are in place, such as assigning different Assistant Attorneys General to each inconsistent function, keeping separate files, and preventing the attorneys from talking to each other about the matter. Sherman v. State, 128 Wn.2d 164, 187, 905 P.2d 355 (1995). See also Hoquiam v. Employment Relations Comm'n, 29 Wn. App. 319, 329, 628 P.2d 1314 (1981).

    F.   RPC 1.11 Successive Government and Private Employment.

      1. Disqualification of Former Government Attorney. A private attorney shall not represent a private client in connection with a matter in which the lawyer participated personally or substantially as a public officer or employee, unless the appropriate government agency consents after consultation. The firm is also disqualified unless the disqualified attorney is screened, and written notice is given to the appropriate government agency. See Stephen Curran, Government Lawyers and Conflicts of Interest, 3 Georgetown Journal of Legal Ethics, 191, 196-98 (1989); Wolfram at 454-56.

      2. Disqualification if Private Lawyer has Confidential Information from Prior Government Employee. A lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. The firm is also disqualified unless screening has been done.

      3. Disqualification of Former Private Attorney. A former private attorney now a public officer or employee shall not participate in a matter in which she participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law, no one is, or may be, authorized to act in the lawyer's stead. A public officer or employer shall not negotiate for a position with opposing counsel.

        a. This rule applies whether the current matter is congruent or adverse to the former client's interest. Wolfram at 448-49.

        b. Part-time government practice can also create conflicts. See Resolving Prosecutor Conflicts, 6 Georgetown Journal of Legal Ethics 415-495 (1993); Wolfram at 454-56.

      4.  See also infra Chapter 3, Section VI.

    G.  Standard of Review - De Novo.

      1. Disqualification of Prosecutor. The Court of Appeals reviews de novo the trial court's decision not to disqualify a prosecutor under RPC 1.9 (Conflicts of Interest - Former Client). State v. Greco, 57 Wn. App. at 200; State v. Stenger, 111 Wn.2d at 521-22.

      2. Violation of RPC's. Whether an attorney's representation of a client violates the RPC's is a question of law reviewed de novo. State v. Hunsacker, 74 Wn. App. 38, 42, 873 P.2d 540 (1994).

      3. Motives of Attorney Irrelevant. The attorney's motives are irrelevant when determining whether or not there is a conflict of interest requiring disqualification. Stenger, 111 Wn.2d at 523.

II.  INTERNAL INVESTIGATIONS

    A. Basic Considerations. Conflict issues often arise when the attorney for the entity is involved in the early stages of investigations of employee matters such as sexual harassment, employee misconduct or ADA compliance. Some basic considerations include:

      1. Identification of Client. Potential for dispute or confusion as to who the attorney's client is in the course of an investigation.

      2. Disqualification as Necessary Witness. Potential to be disqualified as advocate if attorney/investigator is deemed to be necessary witness in later administrative or judicial proceedings.

      3. Discovery of Investigation Materials. Protection from discovery under attorney/client privilege or work product of investigative materials prepared by and for the attorney in the course of an investigation. See CR 26 and RCW 5.60.060(2).

      4. Due Process or Appearance of Fairness Challenges. Potential due process or appearance of fairness challenges to result of administrative proceeding when attorney plays dual role as investigator and legal advisor in quasi-judicial context.

    B.  Sources of Guidance.

      1. Some Relevant RPC's.

        a. RPC 1.8 Conflict of Interest - current clients

        b. RPC 1.9 Conflict of Interest - former clients

        c. RPC 1.10 Imputed Disqualification

        d. RPC 3.7 Lawyer as Witness

      2.  Some Relevant Ethics Opinions.

        a. Formal Opinions.

          i. Prosecutor/Investigator. Prosecutor who investigates an accident case for purpose of determining whether to file charges may not represent any party in proceeding growing out of such accident. WSBA Formal Ethics Opinions, Opin. No. 74 (1960); See Problem 5.

          ii. Prosecutor/Plaintiff Counsel. City attorney who has tried or prosecuted a defendant in traffic case (and presumably reviewed investigative materials in doing so) may not later represent a plaintiff in a claim or civil action against the same defendant involving the same traffic event. WSBA Formal Ethics Opinions, Opin. No. 132 (1965).

          iii. City Attorney/Non-City Case. City Attorney or partners or associates may represent juveniles or defendants in actions not brought or initiated by the City and the facts of which are not investigated by the City employing the City Attorney. WSBA Formal Ethics Opinion, Opin. No. 161 (1975).

        b.  Informal Opinions. WSBA Published Informal Opinion 88-2, Advice by Prosecuting Attorneys to Prospective Witnesses (Prosecutor may not ethically advise witness not to be interviewed by defense or not to be interviewed without prosecutor present). Consider how this might arise in the context of internal investigation in which witnesses are asked not to discuss further the matter under investigation.

      3.  Relevant Statutes and Court Rules.

        a. RCW 5.60.060(2) (Attorney/Client privilege).

        b. RCW 42.17.310(1)(j) (incorporates into the Public Disclosure Act both attorney/client privilege and work/product exemptions from discovery). See Chapter 2, Section IV supra.

        c. CR 26 - Discovery - Privilege and Work Product.

      4.  Relevant Cases.

        a. Legal Memorandum as Work Product. Memorandum prepared by county legal counsel regarding sufficiency of EIS was protected from public disclosure and pretrial discovery as attorney work product rule (CR 26(b)) and the attorney-client privilege (RCW 5.60.060(2) and RCW 42.17.310(1)(j)). Harris v. Pierce County, 84 Wn. App. 222, 928 P.2d 1111 (1996).

        b. Ex Parte Contact with Opposing Party's Counsel. Court held that the ex parte contact of attorneys with expert witness of opposing party (i.e. fire expert who came to plaintiffs after suit filed and who believed he had identified the cause of fire) did constitute a violation of CR 26(b)(5), but sanction of attorney disqualification was not warranted by the facts of this case. In re Firestorm 1991, 129 Wn.2d 130, 916 P.2d 411 (1996). (See dissent by J. Madsen for exposition on work product and CR 26.)

        c. Multiple Representation. In a case involving the termination of a medical resident's residency at the University of Washington Medical School, different Assistant Attorneys General (AAG) represented and/or advised 1) the department chair regarding the termination; 2) the adjudicative committee which reviewed the termination, and 3) the chair of the committee regarding an "errant fax" which was inadvertently sent to a committee member. Sherman v. State, 128 Wn.2d 164, 905 P.2d 355 (1995). Where Attorney General's office used the screening mechanisms discussed in Washington Medical Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 663 P.2d 457 (1983), and by the court of appeals in Amoss v. University of Washington, 40 Wn. App. 666, 700 P.2d 350 (1985), the entire Attorney General's office should not have been disqualified on account of such multiple representation/advice. Of significance in internal investigations, no attorney/client relationship was established between one AAG and the medical resident on account of the AAG having earlier, in an unrelated tort claim, asked the resident to provide the University with the resident's factual account of the incident from which the claim arose. Also, the acts of individual attorneys, as opposed to the administrative tribunal, do not trigger an appearance of fairness violation. Sherman v. State, 128 Wn.2d 164, 905 P.2d 355 (1995).

        d. Property Appraisal - Work Product. After the owner of property which was the subject of a planned land use regulation claimed that application of the regulation would deprive it of reasonable economic use of the property, the City Attorney commissioned an appraisal of the property. The owner/developer obtained its own appraisal of the property, but also sought disclosure of the appraisal done at the City Attorney's direction. The court held the City's appraisal was exempt from public disclosure as attorney work product under CR 26(b)(4) and RCW 41.17.310(j). It did not reach the question whether the appraisal was protected by attorney-client privilege. Overlake Fund v. Bellevue, 70 Wn. App. 789, 855 P.2d 706 (1993), rev. denied, 123 Wn.2d 1009 (1994).

III.    THE ATTORNEY AS WITNESS

The Rules of Professional Conduct 3.7 provides as follows:

    Lawyers shall not act as advocate at a trial in which the lawyer or another lawyer in the same law firm is likely to be a necessary witness except where:

      a. The testimony relates to an issues that is either uncontested or a formality; or

      b. The testimony relates to the nature and value of legal services rendered in the case; or

      c. The lawyer has been called by the opposing party and the court rules that the lawyer may continue to act as an advocate; or

      d. The trial judge finds that disqualification of the lawyer would work a substantial hardship on the client and that the likelihood of the lawyer being a necessary witnesses was not reasonably foreseeable before a trial.

    A.   The Rationale for RPC 3.7.

      1. Generally. RPC 3.7 is based upon the position that the role of the witness is incompatible with the role of an advocate. There have been a number of rationales advanced to support this position, not all of which are consistent. On one hand, an advocate may be more readily impeachable because of his or her interest in the outcome of the litigation. On the other hand, a lawyer may not be able to enhance his or her credibility or further the case by being a witness and an advocate. There is a possibility that a jury or judge may be confused as to whether the attorney is testifying from personal knowledge as a fact witness, or whether the attorney is drawing inferences from facts as an advocate.

      2. Technical Reasons. There are also some technical reasons for the Rule. A lawyer may be placed in the position of having to take a position prejudicial to his/her client. Also, it may be difficult for lawyers to question themselves in the normal question/answer format. Furthermore, the lawyer as witness may place opposing counsel or the court in the awkward position of assessing the lawyer's credibility.

      See generally, Barbara J. Moss, Ethical Prohibitions Against A Lawyer Serving As Both Advocate And Witness, 23 Memphis State U. Law Review, 555 (1993).

    B.  Application of the Rule.

      1. Procedural Application.

        a. Motion to Disqualify. Application of the lawyer as witness rule will occur in both disciplinary proceedings and in court, usually pursuant to a motion to disqualify a particular attorney. A review of the pertinent cases indicates that it is far more likely for the issue to arise during the course of a trial and that there are very few disciplinary procedures involving RPC 3.7. See, e.g., American Bar Association, Annotated Model Rules of Professional Conduct (3rd ed. 1996); cf. State ex. rel. Nebraska State Bar Ass'n v. Neumister, 449 N.W.2d 17 (Neb. 1989) (disciplining lawyer who failed to withdraw when he knew he would be a material witness.); Office of Disciplinary Counsel v. Collins, 643 N.E.2d 1082 (Ohio 1994) (reprimanding lawyer for taking case in which he knew he would be witness).

        b. Timing. As a general rule, a party must move to disqualify an attorney in a timely manner. See PUD 1 v. International Insurance Company, 124 Wn.2d 799, 812, 881 P.2d 1020 (1994). A motion to disqualify presented just before trial may prejudice the non-moving party and may be perceived by the court as constituting "unseemly tactics." Id. However, at least in a disciplinary proceeding, the court will require an unequivocal waiver by the party that could object to the lawyer-witness, or the issue may be reviewed at a later date. See In Re Vetter, 104 Wn.2d 779, 711 P.2d 284 (1985) (court found that a party's decision not to challenge the lawyer-witness during a disciplinary hearing did not preclude the party from raising this issue in court).

      2.  Substantive Application of Rule.

        a. Elements of Rule. In order for RPC 3.7 to apply, three elements must be met. First, a lawyer must act as an advocate at trial. Second, a lawyer or another lawyer in the same law firm must be a prospective witness. Third, the lawyer must be a necessary witness.

        b. Compelling Circumstances. In applying this rule, however, "courts have been reluctant to disqualify an attorney absent compelling circumstances." PUD 1, 124 Wn.2d at 812 (citing Smithson v. United States Fid. & Guar. Co., 411 S.E.2d 850 (W.Va. 1991); see also Cottonwood Estates, Inc. v. Paradise Builders, Inc., 624 P.2d 296 (Ariz. 1981)).

        c. Likely to Be a Necessary Witness. Originally, RPC 3.7 prohibited a lawyer from serving as an advocate when it was obvious that the lawyer "ought" to be called as a witness. This vague language was changed to the current rule which applies only when the lawyer is likely to be a "necessary" witness.

        d. Factors Considered by Court. In determining when a lawyer is a necessary witness, the court will consider a number of factors:

          i. Testimony Related to Issue in Dispute. The testimony must relate to an issue that is in dispute. RPC 3.7 specifically exempts the testimony that relates to an issue that is either uncontested or a formality.

          ii. Balance of Client's and Court's Interests. The comments to the Annotated Rules state that a court should balance the interest of a client in having the lawyer of his/her choice versus the possible prejudice the client might suffer. In determining the prejudice, a court should consider the importance of the testimony and whether it is in conflict with other witnesses.

          iii. Evidence Available from Other Sources. A lawyer will generally not be a necessary witness if the evidence is reasonably attainable from other available sources. See PUD 1 v. International Insurance Company, 124 Wn.2d 789, 881 P.2d 1020 (1994), in which one of the attorneys had been involved in drafting a settlement agreement. The trial court initially found that other parties could testify regarding the various parties' intent. The court in this case noted that courts have been reluctant to disqualify an attorney absent compelling circumstances, and that the burden was on the moving party to establish that the evidence to be provided by the attorney was otherwise unobtainable. When it became clear immediately prior to trial that the attorney was a necessary witness, the court found that the attorney could both testify and act as an advocate as it would unfairly prejudice the attorney's client to disqualify him or her at that late date.

          iv. Testimony Unnecessarily Repetitious. In a criminal case, the Washington Supreme Court reversed a defendant's conviction for murder when the prosecution called the defendant's lawyer to the stand because the lawyer's testimony was repetitious and unnecessary to the state's case. State v. Sullivan, 60 Wn.2d 214, 373 P.2d 474 (1962). The court noted that there must be a sensitive balance between the right of the state to prove its case compared to the defendant's right to effective and unhampered counsel. The repetitive nature of the attorney's testimony tilted the balance in favor of the defendant.

          v. Testimony of Vital Concern. An attorney whose testimony was "of vital concern" to the trial violated the predecessor to RPC 3.7 when he also acted as advocate. Knutsen v. Miller, 28 Wn.2d 837, 867, 184 P.2d 255 (1947). The court concluded that "[b]ecause of his activities in deliberately violating the ethics of his profession, we feel unable to give his evidence much credit." Id. As the court attempts to balance the interests of the parties, it appears that the actual need for the attorney must be established and that the timing of the motion is extremely important to avoid prejudice to the client.

        e.  A Necessary Witness Shall Not Act As an Advocate at Trial. RPC 3.7 prohibits a necessary witness from acting as an advocate at trial.

          i. Self-Disqualification. RPC 3.7 does not require a lawyer to disqualify himself/herself from representing a party or from participating in pretrial preparation. In State v. Fackrell, 44 Wn.2d 874, 271 P.2d 679 (1954), the prosecuting attorney called and questioned witnesses. During the course of the trial an issue arose concerning the validity of a confession. The prosecuting attorney was called as a witness to support the voluntariness of the confession. Thereafter, the attorney did not meaningfully participate in the trial of the case. The court found no violation of RPC 3.7

          ii. Court's Reluctance to Disqualify Counsel. While the Fackrell case is not an example of the best practice, it illustrates the court's reluctance to disqualify counsel, particularly after there is substantial preparation or the trial has begun.

          iii. Both Roles May Be Permissible. The ABA Standing Committee on Ethics and Professional Responsibility, in Informal Opinion 83-1503, has concluded that the rule does not prohibit a lawyer who testified at trial from briefing or arguing the appeal as long as the lawyer's testimony is not at issue and there is no conflict of interest.

        f.  Law Firm Disqualification.

          i. The "Law Firm Rule." RPC 3.7 clearly and unequivocally disqualifies not only the lawyer involved in the litigation, but any other lawyer in the same law firm. This rule has been the subject of substantial criticism, and the proposed model rules provide in pertinent part as follows:

            A lawyer may act as an advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9 (conflict of interest).

          ii. Is a Prosecutor's Office a Law Firm? By its plain meaning, RPC 3.7 is limited to lawyers in the same "law firm." In the terminology section of the rules, "law firm" is defined:

            "Firm" or "law firm" denotes a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or other organization and lawyers employed in a legal services organization.

          The majority of jurisdictions that have addressed the question have ruled that due to a prosecutor's unique function, a prosecutorial office is not a "law firm" and thus, a prosecutorial office is not disqualified from a case when a member of the office is a witness. State v. Clausell, 474 So.2nd 1189 (Fla. 1985); State v. Johnson, 702 S.W. 2d 65 (Mo. 1985); Ford v. State, 628 S.W. 2d 340 (Ark. Ct. App. 1982); State ex rel. Goldsmith v. Super. Ct. of Hancock Cty, 386 N.E. 2d 942 (Ind. 1979); People v. Superior Court Cty of San Bernandino, 86 Cal. App. 3d 180, 150 Cal. Rptr. 156 (Cal. Ct. App. 1978); United States v. Hubbard, 493 F. Supp. 206 (D.D.C. 1979); United States v. Cerone, 452 F.2d 274 (7th Cir. 1971).

          A prosecutor's office has been held unique because: (1) unlike private counsel, no remuneration is received for services to a client; (2) prosecutors represent the public, not an ordinary party, and are obligated to seek justice and (3) a prosecutor is an elected official and to disqualify the prosecutor would be to deprive the electorate of its representative.

          Nonetheless, Washington Appellate Courts have not ruled on this issue, so caution is advised.

          iii. Non-Lawyer Staff. On the face of RPC 3.7, a law firm would not appear to be disqualified as an advocate when one of its paralegals or office assistants was called to testify. RPC 3.7 does not apply on its face to former associates of the law firm or to attorneys who are appearing pro se. However, since the paralegal works at the discretion of the lawyer, the possibility of the application of the RPC's should at least be considered. See American Bar Association, Annotated Model Rules of Professional Conduct, (3rd ed. 1996).

    C.    Exceptions to the Rule.

    RPC 3.7 recognizes four exceptions. An attorney may testify and act as an advocate if his or her testimony relates to an issue that is either uncontested or a formality, or if it relates to the nature and value of legal services rendered in the case. In addition, the court may specifically authorize a lawyer to continue to act as an advocate when the lawyer has been called by the opposing party to testify. Finally, the trial judge may authorize an attorney to act both as an advocate and be a witness if disqualification of the attorney would work a substantial hardship on the client and the likelihood of the lawyer being a necessary witness was not reasonably foreseeable before a trial.

      1. Substantial Hardship. The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 339 on the meaning of "substantial hardship" stating:

        [W]here a complex suit has been in preparation over a long period of time, any development which could not be anticipated makes the lawyer's testimony essential, it would be manifestly unfair to the client to be compelled to seek new trial counsel at substantially additional expense and perhaps to have to seek delay of the trial.

      See also PUD 1 v. International Insurance Company, 124 Wn.2d 789, 881 P.2d 1020 (1994). Some factors courts have considered to determine whether substantial hardship exists include:

        a. Emotional Attachment. A client's emotional attachment to a lawyer would not usually be enough to create a substantial hardship. See Comden v. Superior Court, 576 P.2d 971 (Cal. 1978).

        b. Additional Expense and Delay. A showing of additional expense and delay may not always qualify as a sufficient hardship. See McCarthur v. Bank of New York, 524 Fed. Supp. 1205 (S.D. N.Y. 1981).

        c. Attorney's Expertise, Training and Involvement. In most instances, the court appears to look at the expertise, training and involvement of the attorney to determine whether there would be substantial hardship. See, e.g., In re Lathan, 654 P.2d 1110 (Or. 1982) (finding no hardship from loss of attorney's expertise); American Bar Association, Annotated Model Rules of Professional Conduct (3rd ed. 1996).

      2.  Reasonable Foreseeability. The foreseeability of an attorney being a witness is a fact-based question that must be determined on a case-by-case basis. It is clear, however, that the earlier the issue is raised in any trial proceeding, the more likely the court will find that the disqualification of an attorney does not create a substantial hardship.

      Practice Tip: To avoid disqualification during trial, an attorney should seek a court ruling at the time of pretrial preparation that he or she believes he or she is likely to be a necessary witness or may be subpoenaed by opposing counsel.

IV.   MULTIPLE INTERNAL CLIENT SCREENING - WAYS AND MEANS

    A. Conflict of Interest.

      1. General Rule. A lawyer shall not represent a client if the representation of that client will be directly adverse to another client or is materially limited by representation of the lawyer's responsibilities to another client, unless certain precautionary measures are taken. RPC 1.7(a), (b). For purposes of this rule, when a lawyer represents a discrete governmental agency or unit that is part of a broader governmental entity, the lawyer's client is the particular government agency or unit, and not the broader governmental entity of which the agency is a part, unless contrary written agreements have been made. RPC 1.7(c).

      A conflict of interest arises when the government lawyer has a statutory duty to provide legal representation to agencies or individual employees and some disability, such as one of those described in RPC 1.7, prevents fulfillment of that duty. See Osborn v. Grant County, 130 Wn.2d 615, 624, 926 P.2d 911 (1996) (an example of conditions under which a special prosecutor must be appointed). Government lawyers, thus, must be very careful not to enter into a relationship where there is a potential conflict of interest that is likely to adversely affect the lawyer's ability to exercise independent and professional judgment. RPC 1.7.

      2. Situations in Which Conflict Arises. In a government attorney's office, one civil lawyer typically represents multiple governmental agencies as clients. The lawyer has a duty to represent each client so that each client's interests are protected. Where clients' interests are adverse to one another, an impermissible conflict of interest exists, and other arrangements for representation, such as appointment of special deputies, need to be instituted. Sherman v. State, 128 Wn.2d 164, 905 P.2d 355 (1995).

        a. Impermissible Conflict.

          i. Opposing Government Clients. A government attorney may not represent opposing governmental clients (agencies) in litigation. Westerman v. Cary, 125 Wn.2d 277, 892 P.2d 1067 (1994).

          ii. Lawsuit by Government Attorney. An attorney may not initiate a lawsuit against the governmental entity (city, county, state) that employs him, except under extremely limited circumstances. Osborn v. Grant County, 130 Wn.2d 615 (1996); Nichols v. Snohomish County, 109 Wn.2d 613, 746 P.2d 1208 (1987); Hoppe v. King County, 95 Wn.2d 332, 622 P.2d 845 (1980).

          But see RCW 73.16.061 (prosecuting attorney represents veterans seeking re-employment after active military duty, and the employer may be the county). Nichols v. Snohomish County, 109 Wn.2d 613, 746 P.2d 1208 (1987).

          iii. Representation of Decision-Maker While Case Pending. While a case is pending, representation of a board, administrative tribunal, or judges may constitute ex parte communication in violation of RPC 3.5 and would present an appearance of fairness issue. Medical Disciplinary Board v. Johnston, 99 Wn.2d 466, 663 P.2d 457 (1983).

          iv. Outside Employment. Where outside employment is permitted, a government attorney may not accept outside employment that conflicts with the attorney's governmental responsibilities. RPC 1.7; RCW 36.27.040; RCW 36.27.060; RCW 35.23.111.

          v. Former Government Attorney. A former government attorney may not accept private employment concerning a matter in which he or she had personal and substantial responsibility as a public employee, unless the former government employer consents after consultation. See RPC 1.11; Hoquiam v. PERC, 97 Wn.2d 481, 646 P.2d 129 (1982).

          vi. Law Firm of Former Government Employee. The law firm of the former government attorney is disqualified from representing the private client with whom the government attorney interacted as a public officer, unless the disqualified lawyer is "screened" and receives no fees therefrom and written notice is promptly given to the appropriate agency. Hoquiam v. PERC, 97 Wn.2d 481, 646 P.2d 129 (1982). For a definition of "screening," see infra Section IV.B.1.

          vii. Use of Confidential Information by Former Government Attorney. A former government attorney may not use any confidential government information about a person gained while employed by a government agency when the client's position is adverse to that agency. The lawyer's firm may participate in the matter only if the lawyer is "screened." RPC 1.6.

          viii. Prior Involvement in Private Employment. A lawyer serving as a governmental officer or attorney may not participate in a matter in which he or she participated personally and substantially while in private employment with a party or its attorney in such matter. RPC 1.11(a).

          ix. Respondeat Superior Conflicts. A conflict of interest may arise under the theory of respondeat superior where an employer initially acknowledges a duty to defend its employee, but determines later that the employee acted outside the scope of his employment or, under a Section 1983 (142 USC § 1983) cause of action, in contravention to the policies and procedures of the agency. There are a number of different ways to handle this conflict of interest, which may include hiring outside counsel. For a good discussion on the doctrine of respondeat superior, see Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993), rev. denied, 123 Wn.2d 1027, 877 P.2d 694 (1994).

        b.  Permissible Dual Representation. The possibility of dual representation of clients with adverse or possibly adverse interests often arises when governmental departments or agencies are seeking to work cooperatively on a public project. Dual representation is permitted if the lawyer reasonably believes the representation will not adversely affect the relationship with the other client, and the clients are aware and consent to the dual representation. Doubts are to be resolved against the propriety of the representation.

    B.   Imputed Disqualification.

    When a single attorney is disqualified because of a conflict of interest, the disqualification applies to the other lawyers in the same firm, as well. When a potential conflict of interest arises, the attorney should inform the client and explain the implications of the conflict of interest. Because government attorneys have a statutory duty to provide legal advice to government agencies, the office should arrange for separate attorneys to handle the matter and to "screen" the attorneys within the office. Alternatively, it may be necessary or desirable to hire outside attorneys or to exchange attorneys with other comparable offices who will act as "special deputies." [Note: Remember to take this into account at budget time.] See State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988); State v. Ladenburg, 67 Wn. App. 749, 840 P.2d 228 (1992).

      1. Screening (Isolation).

        a. When Screening is Necessary. Screening is necessary when an attorney has had a prior professional relationship with a client wherein he or she obtained confidential information that could be used to the client's disadvantage. State v. Ladenburg, 67 Wn. App. 749, 840 P.2d 228 (1992). When the performance of legal duties presents actual conflicts of interest, different attorneys in the office should handle the inconsistent functions. Amoss v. University of Washington, 40 Wn. App. 666, 700 P.2d 350 (1985).

        b. Establishing Adequate Screening. Adequate screening is established when the attorney having a conflict of interest:

          i. Disqualifies himself or herself from all participation in the matter;

          ii. Does not participate in and allows no discussions in his or her presence involving the matter;

          iii. Sees no documents or correspondence pertaining to the matter and keeps separate files; and

          iv. Takes no part in the decision of the case. See Hoquiam v. PERC, 97 Wn.2d 481, 646 P.2d 129 (1982); Amoss v. University of Washington, 40 Wn. App. 666, 700 P.2d 350 (1985).

      2.   Special Deputies.

        a. State. There is no express statutory provision describing the circumstances under which the Attorney General may appoint special assistant attorneys general. However, RCW 43.10.060 and 43.10.065 provide for special assistant attorneys general as part of the general appointment power of the Attorney General. Special assistant attorneys general employed on less than a full-time basis may engage in the private practice of law. RCW 43.10.125. See also WAC 296-14-900 through 296-14-940 implementing RCW 51.12.102 and 51.24.110, which authorize the Department of Labor & Industries to use special assistant attorneys general.

        b. Counties. A special prosecutor may be appointed to represent a party when (i) a government attorney has the authority and the duty to represent such party in the given matter; and (ii) some disability prevents the government attorney from fulfilling that duty. See RCW 36.27.030; Hoppe v. King County, 95 Wn.2d 332, 339; 622 P.2d 845 (1980).

        c. Cities. Outside legal counsel may be retained by a city's mayor or by a municipal board or officer "in the good-faith prosecution or defense of an action  .  .  .  where the municipality's attorney refuses to act, or is incapable of, or is disqualified from acting. RCW 35.27.070.

        Caveat: Review and analyze for screening early. Disqualification can be embarrassing and put your client at a disadvantage.

V.    STATUTORY DISQUALIFICATIONS

Numerous state statutes and local codes, policies and charters address the authority and scope of representation an attorney can provide a government entity. This section is an overview of applicable state laws. However, it is necessary to consider specific circumstances to apply the appropriate law.

    A. RCW 2.48.200. Part of the State Bar Act, RCW 2.48.200, sets forth a general overview of the practice restrictions which apply to certain public officers, including prosecuting attorneys.

    B. Chapter 42.23 RCW. "Code of Ethics for Municipal Officers - Contract Interests." This Chapter addresses permissible and impermissible conflicts by local government employees and officers, including beneficial interests in contracts.

    C. Chapter 42.52 RCW. "Ethics in Public Service" for Public Officers and Agencies. This Chapter covers a broad and detailed spectrum of the do's and don'ts for executive and legislative branches of state government, including financial interests, confidential information, testimony, gifts, honoraria and employment after public service.

    D. Other RCW's Setting Forth Attorney Disqualifications.

      1. Counties.

        a. Attorney as Auditor. During his or her term of office, an attorney serving as county auditor or deputy shall not practice as an attorney or represent any person who is either making a claim against the county or who is seeking to procure any legislative or other action by the board of county commissioners. RCW 36.22.110.

        b. Attorney as Coroner - Limitation. An attorney shall not serve as county coroner. In counties with a population of less than forty thousand, however, no coroner shall be elected and the prosecuting attorney shall be ex officio coroner. RCW 36.24.170; RCW 36.16.030.

        c. No Reward/Fee for Prosecution. Prosecuting attorneys shall not receive any fee or reward from any person, on behalf of any prosecution, or for any of their official services, except as provided in Title 36. Prosecuting attorneys also shall not be engaged as attorneys or counsel for any party in any action that depends upon the same facts involved in any criminal proceeding. RCW 36.27.050.

        d. Prosecutors in Private Practice - Limitation. In counties with a population of at least eighteen thousand, the prosecuting attorney and the deputy prosecuting attorneys shall not engage in the private practice of law. But note, in counties with a population of at least eighteen thousand but less than one hundred twenty-five thousand, deputy prosecuting attorneys may serve part time and engage in the private practice of law if the county legislative authority so provides. RCW 36.27.060.

        e. Attorney as Sheriff - Limitation. An attorney serving as a county sheriff shall not appear or practice as an attorney in any court, except in his or her own defense. RCW 36.28.110.

        f. Boundary Review Board. In counties with a population of less than one million, county boundary review board appointees may not be officials or employees of the county or a governmental unit in the county, nor act as consultants or advisors on a contractual or retained basis to the county or to any governmental unit, agency, or association in the county. This provision effectively prohibits public sector attorneys who are employed or retained by such a county from serving on the county boundary review board. RCW 36.93.061.

      2.  Courts of Record.

        a. Court of Appeals Judge. No judge, while in office, shall engage in the practice of law. RCW 2.06.090.

        b. Superior Court Judge or Commissioner. An attorney may not serve as a superior court judge pro tempore or a superior court commissioner pro tempore in a judicial district that is contained within division one or two of the court of appeals and that has a population of more than one hundred thousand, while he or she is appointed to, or serving on, a case in that judicial district as a guardian ad litem for compensation under RCW Titles 11, 13, or 26. RCW 2.08.185.

        c. Judicial Officer. A judicial officer is a person authorized to act as a judge in a court of justice. Such officer shall not serve in such a capacity in a court in which he or she has been an attorney in the action, suit, or proceeding in question for either party. RCW 2.28.030.

        d. Part-Time District Judge. An attorney serving as a part-time district judge may, if permitted by court rule, act as an attorney in any court other than the one in which he or she serves as judge, except in an action, suit or proceeding removed from the court where he or she serves to another court for review. RCW 2.28.040.

        e. Court Clerks, Reporters and Bailiffs. While serving as a clerk of court, an attorney may not act, nor have a partner act, as an attorney of the court in which he or she is clerk. RCW 2.32.090.

        f. Administrator for the Courts. An attorney serving as the administrator for the courts or as an assistant to the administrator shall not engage, directly or indirectly, in the practice of law in Washington. RCW 2.56.020.

      3.  Criminal Procedure.

        a. State-Wide Special Inquiry Judge Act - Special Prosecutor. A special prosecutor appointed under RCW 10.29.080 shall not have resided, during the five years immediately preceding the appointment, in a county in which the state-wide special inquiry judge will likely be required to investigate crimes. RCW 10.29.080.

        b. State-Wide Special Inquiry Judge Act - Judge. The judge serving as a special inquiry judge is disqualified from acting as a magistrate or judge in any later court proceeding that arises from the special inquiry except when the proceeding is for alleged contempt for neglect or refusal to appear, testify, or provide evidence at the inquiry in response to an order, summons, or subpoena. RCW 10.29.130.

        c. Selection of Public Defender. City attorneys, county prosecutors, and law enforcement officers shall not select the attorneys who will provide indigent defense services. RCW 10.101.040.

      4.  Juvenile Courts - Declining to Participate in Nonfelony Juvenile Cases. If a county prosecuting attorney, after giving appropriate notice to the juvenile court, declines to represent the state of Washington in non-felony juvenile court matters, then he or she shall not participate in juvenile court proceedings until the next filing date unless requested to do so by the court on an individual basis, in which case he or she shall participate. RCW 13.40.090.

      5.  Municipal Courts - Cities Over Four Hundred Thousand.

        a. Municipal Court Judges. An attorney may not engage either directly or indirectly in the practice of law during the time in which he or she is serving as a municipal court judge. RCW 35.20.170.

        b. Municipal Court Judge Pro Tem. An attorney appointed by the mayor to serve as a judge pro tempore shall not practice before the municipal court during his or her term of office as judge pro tempore. RCW 35.20.200.

      6.  Recording, Registration and Legal Publication. While serving as registrar or deputy registrar, an attorney shall not practice as an attorney or counselor at law; nor prepare any papers in any Chapter 65.12 proceeding, nor be in partnership with any attorney or counselor at law so practicing. RCW 65.12.065.

      7. Small Claims Court. No attorney, unless he or she is the plaintiff or defendant in the matter, shall be involved with the prosecution or defense of litigation in the small claims department without the consent of the judge of the district court. RCW 12.40.080.

      8. Special Proceedings and Actions. No attorney may be appointed as receiver in an action in which he or she is interested. RCW 7.60.020.

      9. State Government - Executive.

        a. Prosecuting Attorneys. If the attorney general initiates or takes over the prosecution of a criminal action under the circumstances outlined in RCW 43.10.090, then, from the time the attorney general initiated or took over the prosecution, the prosecuting attorney shall not have power or authority to take any legal steps relating to the prosecution, except at the attorney general's authorization or direction. RCW 43.10.090.

        b. Organized Crime Advisory Board. The United States Attorneys for the Eastern and Western Districts of Washington shall be requested to serve on the organized crime advisory board of the state of Washington as nonvoting members and shall not be eligible to serve as chairperson. RCW 43.43.858.

        c. Attorney General and Assistant Attorneys General Employed Full Time. The Attorney General and all assistant attorneys general who are employed full time are prohibited from engaging in the private practice of law, with the exception of performing legal services for himself or herself, or his or her immediate family; or performing legal services of a charitable nature. RCW 43.10.130. Special assistant attorneys general who are not employed full time may engage in the private practice of law. RCW 43.10.125. State agencies, boards, commissions, etc. (with the obvious exception of the Office of the Attorney General), are prohibited from employing any person "to act as attorney in any legal or quasi-legal capacity in the exercise of any of the powers of performance of any of the duties specified by law to be performed by the attorney general, except where it is provided by law to be the duty of the judge of any court or the prosecuting attorney or any county to employ or appoint such persons." RCW 41.20.067. That statute also exempts "the commission on judicial conduct, the state law library, the law school of the state university, the administration of the state bar act by the Washington State Bar Association, or the representation of an estate administered by the director of the department of revenue or the director's designee pursuant to Chapter 11.28 RCW."

VI.    SUCCESSIVE EMPLOYMENT

    A. The Rule - RPC 1.11 Successive Government and Private Employment.

      1. From Representation of Government to Representation of a Private Client.

        a. Three General Rules.

          i. Representation in Same Matter. "A lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee [e.g., a government lawyer], unless the appropriate government agency consents after consultation." RPC 1.11(a).

          ii. Confidential Information. "A lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was public officer or employee [e.g., when the lawyer was a government lawyer], may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person [about whom the information pertains]." RPC 1.11(b).

          iii. Law Firm. "No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter  .  .  .  ." RPC 1.11(a), (b).

        b.  Exceptions.

          i. Exception to RPC 1.11(a)'s Prohibition Against Work by Former Government Lawyer. A former government lawyer may represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, if "the appropriate government agency consents after consultation." RPC 1.11(a). This exception does not apply to the rule stated in RPC 1.11(b); that is, a government agency cannot consent to a former government lawyer's use of confidential government information about a person where the information could be used to the material disadvantage of that person.

          ii. Exception to Prohibition Against Work by Firm Employing Former Government Lawyer. A firm or lawyers within it may undertake or continue representation on a matter, notwithstanding the fact that one of its lawyers is a former government attorney who would be prohibited by RPC 1.11(a) or (b) from undertaking or continuing the representation, if:

            (a) The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and

            (b) Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of RPC 1.11. RPC 1.11(a)(1) and (2).

      2.   From Representation of a Private Client to Representation of Government. A lawyer serving as a public officer or employee [e.g., a government lawyer] shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer's stead in the matter  .  .  .  ." RPC 1.11(c)(1).

      3. Leaving Government Employment. A lawyer serving as a public officer or employee "shall not . . . negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially." RPC 1.11(c)(2).

      4. Term "Matter" is Defined Broadly in RPC 1.11 and May Result in Lengthy Disqualification. Under RPC 1.11, the term "matter" includes "any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties." RPC 1.11(d)(1). "Matter" also includes "any other matter covered by the conflict of interest rules of the appropriate government agency."

      Practice Consideration: The breadth of the definition of "matter" means that disqualification of a current or former government lawyer can extend for a long period of time--as long as the "matter" continues to exist. Consider, for example, adoption of a GMA comprehensive plan, a process which can take two to three years. A government lawyer who represented the municipality during preparation of, and public hearings on, its comprehensive plan would be barred under RPC 1.11(a) from later representing a private property owner in a legal challenge to the comprehensive plan___even if the private representation occurred several years after the close of the attorney's involvement in the "matter" of the plan's preparation and adoption. Likewise, an attorney who personally and substantially represented a private property owner by writing letters and appearing at hearings protesting various components of a municipality's draft comprehensive plan, but who later became an assistant city attorney for the municipality, would be precluded from participating on behalf of the municipality in subsequent litigation concerning the plan, unless no one else is, or by lawful delegation may be, authorized to act in the [assistant city attorney's] stead in the matter  .  .  .  ." RPC 1.11(c)(1).

      The only instance in which RPC 1.11's reach does not extend to the conclusion of the matter involves negotiation for private employment. Under RPC 1.11(c)(2), a government lawyer is barred from negotiating for private employment with a party or attorney for a party in a matter in which the lawyer is currently participating personally and substantially. There is no bar to negotiating with a party or attorney after the lawyer is no longer participating in the matter--even if the "matter" is continuing. Of course, if the lawyer negotiates for and accepts employment with a party or its attorney and the "matter" continues, RPC 1.11(a) would bar the lawyer from representing the private client (unless the government agency consented). If the lawyer's new employer is a firm, RPC 1.11(a) would require the firm to effectively screen the new lawyer in order to continue the firm's representation of the private client.

    B.  Other Rules of Professional Conduct May Apply in Addition to RPC 1.11.

    Other specific rules contained within the Rules of Professional Conduct may apply in a given situation, in addition to RPC 1.11. See supra Section I.D.2. for a discussion of State v. Stenger, 111 Wn.2d 516, 520-21, 760 P.2d 357 (1988), in which the Supreme Court held that the Clark County Prosecuting Attorney was disqualified from representing Clark County on a case involving a charge of aggravated murder and in which the County was seeking the death penalty, because the prosecuting attorney had previously represented the defendant on an unrelated misdemeanor charge.

    C. Other Cases and Washington State Bar Association Ethics Opinions.

      1. Disqualification of Prosecutor - Relatives. State v. Ladenburg, 67 Wn. App. 749, 850 P.2d 228 (1992). In this case, the court rejected a claim that the Pierce County Prosecuting Attorney and his office should be disqualified because the defendant was the nephew of the prosecuting attorney. The Court of Appeals, Division II, distinguished the case from Stenger, noting that, unlike in Stenger, the prosecuting attorney had not represented the defendant before, and therefore RPC 1.9 did not apply. It also noted that, because the charge against the nephew was for second-degree robbery, not aggravated murder, there were no instances in which mitigating circumstances or knowledge of the defendant's background would come into play. Finally, the court noted that there were no other Rules of Professional Conduct implicated and, in any event, the record did not indicate that the prosecuting attorney had actively participated in the case or had even been aware of the charge. Thus, there was no basis to disqualify the prosecutor's entire office.

      2. Part-Time City Attorney - Private Practice. WSBA Formal Ethics Opinions, Opin. No. 161 (1975). This opinion concerns part-time government attorneys who also represent private clients. "City attorneys, their partners or associates may represent defendants or juveniles in actions that are not brought nor initiated by the City and the facts of which are not investigated by representatives of the City employing the City Attorney." See also part 2 of Opin. No. 74 (1960); Opin. No. 1 (1950).

      3. Cannot Prosecute Defendant, then Represent Plaintiff Against Same Defendant. WSBA Formal Opinions, Opin. No. 132 (1965). Prosecuting attorneys, justices of the peace, police judges, and city attorneys who have prosecuted a defendant in a traffic case may not represent a plaintiff suing the same defendant for damages arising out of the same circumstances.

      4. Cannot Represent PUD, then Represent Affected Property Owners. WSBA Formal Opinions, Opin. No. 121 (1963). An attorney representing a public utility district concerning planning for construction of a dam may not represent property owners whose property will be flooded by the pool behind the dam in opposing the dam. The attorney might be able to represent the property owners in an effort to obtain compensation from the PUD, depending on the facts of the representation and the scope of the attorney's work for the PUD.

      5. Limitations on Prosecutor. WSBA Formal Opinions, Opin. No. 74 (1960). Where a prosecuting attorney and a deputy prosecuting attorney also engage in private practice, the deputy prosecuting attorney may not represent someone in a civil matter where the opposing party is represented by the prosecuting attorney.

      A prosecuting attorney may not represent the plaintiff or defendant in a personal injury action arising out of the negligent operation of a motor vehicle, if the prosecuting attorney investigated the accident for the purpose of determining whether there should be prosecution for negligent driving. See also Opin. No. 1 (1950).

      6. Prosecutor Cannot Represent Party in Civil Suit Against Criminal Defendant. WSBA Formal Opinion, Opin. No. 1 (1950). A prosecuting attorney may not defend a railroad company in a civil suit for damages brought by a freight truck driver, where the prosecuting attorney prosecuted the truck driver for negligent driving.

VII.   PRIVATE ATTORNEYS WITH PUBLIC/PRIVATE CLIENTS

Attorneys who serve as government lawyers by contract face many of the same ethics questions as do lawyers who are in-house. However, private/government lawyers do seem to encounter a few different questions. These questions arise primarily in the area of conflicts. Some examples are found in paragraph D, below. The remainder of this chapter focuses on the resources that are available to aide an attorney when facing an ethics question.

    A. RPC Provisions Which May Apply.

    While all provisions of the RPC apply to all attorneys, some of the rules merit special attention for contracting government attorneys.

      1. RPC 1.4 - Communication. This rule requires full and open communication with your client. For those on contract this would include full and complete information about your billings to the client, including time spent and billed for your legal assistants. Remember, this is a public record.

      2. RPC 1.5 - Fees. In addition to the comments above, any contract should provide how changes in hourly rates will be done, if at all. From time to time attorneys in private practice must evaluate and adjust their hourly rate as well as that of their assistants. Rules 1.4 and 1.5 require a full disclosure of those actions.

      3. RPC 1.6 - Confidentiality. The concept of attorney-client privilege usually begins with an analysis of "who is the client?" This issue was brought to national attention when the 8th Circuit considered the application of the privilege to the President's spouse, Hilary Rodham Clinton in In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997), cert. denied, 1997 U.S. LEXIS 3898 (June 23, 1997). See supra Chapter 2, Section III.B.2.

      4. RPC 1.7 - Conflicts. If a discrete department of the government entity hires an attorney, that attorney's client is the department, not the entity as a whole, unless the counsel is notified that the client is the entity as a whole by the attorney for the entity or the head of the entity, or a contract provides otherwise. This subsection of RPC 1.7 has more practical applicability to state agencies but could cause problems for local governments.

      5. RPC 1.8, 1.9, 1.10. These rules involve conflicts and disqualification. When a law firm represents a municipality along with private citizens, the chances of having a conflict arise are legion. Some examples appear in paragraph D below.

      6. RPC 1.14 - Preserving Funds of Client. Unlike in-house counsel, private practitioners who have governmental entities as clients may obtain cash advances from their client. In particular, those firms that represent self-insured government entities in litigation may have an arrangement whereby they have established a fund for litigation costs. Trust accounts must be established if these funds are actually pre-paid to the firm. Subsection (c) defines the kind of trust account that must be used. WSBA Formal Ethics Opinion No. 174 explains that the trust account funds of one client cannot be used to satisfy debts of another client.

      7. RPC 1.15 - Declining or Terminating Representation - Do Appointed Attorneys Ever Quit? If there are termination provisions in the contract between lawyer and governmental entity, those terms should be consistent with this rule. Arguably, a client can agree to terms different than those required by the Rules of Professional Conduct. However, before having the governmental entity agree to those terms, it should have independent counsel review them. If there are no termination terms in the contract, the attorney is bound by these rules.

      8. RPC 5.1(c), RPC 5.3(c) - Responsibilities of Partner. The partner who is the government attorney is responsible for ethical violations of other lawyers or support staff, if the partner knows of the conduct at a time when the consequences could be avoided and the partner does nothing to correct the conduct. Attorneys in private practice must consider the implications of this rule for purposes of malpractice coverage.

      9. RPC 6.1 - Pro-Bono Service. Contract government attorneys don't have the same restrictions on them that in-house attorneys do. As private practitioners, these attorneys can have clients come to their office, can use office staff and facilities.

      10. RPC 7.1 - Communication About a Lawyer's Services. There are times when law firms compete for contracts to represent a governmental entity. When participating in a bidding process for contracts, attorneys must follow this rule.

      11. RPC 7.5 - Firm Name. This rule addresses prohibitions and requirements regarding the name of a firm. It is not clear from this rule that a law firm letterhead may include the status of one of its attorneys as a city attorney. The best course is to have separate letterhead for each function. Although WSBA Formal Ethics Opinion No. 87 does address this issue, it comes from an era when advertising was prohibited.

    B.  Opinions of the State Bar.

    A compilation of the various WSBA Formal Ethics Opinions which apply to private/government lawyers follows.

      1. Prosecutor Cannot Represent Party in Civil Suit Against Criminal Defendant. An attorney who had previously prosecuted an individual for negligent driving could not later represent the defendant railroad company in a civil suit brought by the negligent driver where the civil action arose from same incident. Opin. No. 1 (1950).

      2. County Prosecutor Cannot Defend Violator of Town Ordinance. It is unethical for a county prosecutor to defend an individual who was charged with a violation of a town ordinance, where the town was in the same county. Opin. No. 3 (1951).

      3. Representation of Both County and PUD in County. Committee considered the question of whether two attorneys could represent both a county and a PUD located in the county. After recognizing that attorneys for both entities would both be public officials, the Committee opined "[h]e at all times represents the public, and it is his duty as an attorney to at all times represent the public interest in any activity which he undertakes for either organization. We see no conflict  .  .  .  . It is the duty of the attorney in all these cases to represent the public, and as long as he maintains that high duty he is then not representing any conflicting interests  .  .  .  ." Opin. No. 59 (1959).

      4. Limitations of Prosecutor. A county prosecutor for a sixth class county may engage in the private practice of law. However, it is unethical for the prosecutor and the deputy prosecutor to be on opposite sides of a civil case, even where the attorneys maintained separate offices. Also, the Committee addressed the question of whether a prosecutor of a sixth class county was prohibited from representing a party in civil litigation which stems from a driving violation which would be prosecuted in the sixth class county. The Committee determined the prosecutor would be prohibited from representing either party to the civil litigation. Opin. No. 74 (1960).

      5. Advertising as "City Attorney." Basing their analysis on provisions barring advertising, the Committee found it unethical "for a city attorney to so designate himself as such upon letterheads used by him or the firm of which he is a member for correspondence purposes in the general practice of law." However, this opinion, while not withdrawn by the bar, predates the caselaw that permits lawyers to advertise. WSBA Formal Ethics Opinion, Opin. No. 87 (1960).

      6. City Attorney for Two Cities. "It is entirely proper for an attorney to act as city attorney for two separate cities." Of course, if a conflict should arise between the two cities, then the attorney is disqualified. Opin. No. 104 (1962).

      7. Cannot Represent PUD, then Represent Affected Property Owners. Former attorneys of a PUD are now being asked to represent affected landowners to stop the project or get as much as possible from the PUD. The Committee found that the attorneys could not represent the affected landowners in their effort to stop the project. However, the Committee found there may be a way for the attorneys to represent the affected landowners in their efforts to recover as much as possible for their land. The Committee did not explain how that could be done. Opin. No. 121 (1963).

      8. Cannot Prosecute Defendant, then Represent Plaintiff Against Same Defendant. "[I]t is not proper for a  .  .  .  prosecuting attorney or city attorney who has tried or prosecuted a defendant in a traffic case to then represent a plaintiff in a claim or civil action involving the same traffic occurrence against the same defendant." Opin. No. 132 (1965).

      9. County Prosecutor and City Council Member. It is not an ethical violation for a lawyer to serve as a county prosecutor and a city councilman at the same time. He must be careful not to represent the county in actual controversies with the city he serves as council member. Opin. No. 149 (1971).

      10. Part-Time City Attorney - Private Practice. City attorneys in private practice may represent criminal defendants, provided "that such representation of a defendant or juvenile is not brought or initiated by the city and the facts of which were not investigated by representatives of the city employing the city attorney." Opin. No. 161 (1975).

    C.  Places to Turn.

      1. WSBA Legal. Ask for the Professional Responsibility Counsel. Although the attorneys at the bar do not have a government lawyer background, they have an intimate knowledge and understanding of the Rules of Professional Conduct and the prior opinions. Their insights to the questions posed cannot be overstated. A lawyer may also correspond with the Rules of Professional Conduct Committee. Send correspondence to: 2101 Fourth Avenue, Fourth Floor, Seattle, Washington 98121-2330. Expect a six-week wait for response. The committee does not meet monthly. It will not consider conduct that is the subject of litigation.

      2. Internet. There are numerous resources available for government attorneys. The list provided here is not complete, however, it is a starting place.

        a. listserv@list.municode.com: Type the following without the quotation marks and leaving spaces only where indicated: "Subscribe MCC-MUNIATTY-L John Doe" This site allows you to post messages to which other attorneys respond, usually within a day or two.

        b. Internet Locations (URL): there are others that you can find by surfing some of the sites listed below:

          i. www.wsba.org (access to Washington State Bar)

          ii. www.mrsc.org (Municipal Research & Services Center)

          iii. www.icma.org (Int'l City/County Management Association)

          iv. www.michlaw.com (City Solicitors & Town Counsel Association)

          v. www.lawforum.net (discussions on any legal topic)

          vi. www.abanet.org (American Bar Association-discussions on any legal topic)

    D.    Hypothetical Conflict Situations.

    These are some examples of ethical questions that may arise for those attorneys who have private as well as government clients. These offer a starting place for an attorney who may face a similar question.

      1. Contract city attorney's partner has developer as a client. Developer now wants to develop in the city and does not like the development restrictions. Challenge is imminent. (RPC 1.7, 1.8(b), Rule 2.2)

      2. City attorney's office is hiring. Prospective employee was formerly employed by law firm that represents (or represented while applicant was at former office) a developer who plans on developing in the city. (RPC 1.7, 1.8(b), 1.10)

      3. Property owner was previously represented by partner of city attorney. The representation was 15 years ago and there has been no continued contact between property owner and the lawyer. The property of the former client is adjoining a street which is up for widening (or even vacation, maybe). Property owner resists. (RPC 1.9, 2.2)

      4. Law firm which represents the city has a retirement fund where the principals of the firm are also trustees of the retirement fund. The retirement fund obtains property within city limits. As an investment, the trustees decide the best use of the land is to build an apartment complex. The city denies the application for building permit and appeal is imminent. (RPC 1.8)

VIII.   PRO BONO WORK

    A. General Rules.

    The Rules of Professional Conduct define pro bono services as professional services provided at no fee to persons of limited means or to public services, charitable groups or organizations. RPC 6.1. Although pro bono services are not currently required by the Washington State Bar Association, the RPCs do encourage attorneys to provide these services. In fact, the RPCs urge lawyers not to avoid appointment by a tribunal to provide pro bono services, except in certain circumstances. RPC 6.2. The RPCs however, do make it clear that the attorney providing pro bono legal services is bound by the RPCs. RPC 6.2(a).

    B. Restrictions on Government Lawyers.

    Although state attorneys general and certain county prosecuting attorneys cannot engage in private practice, these restrictions typically do not apply to providing legal services of a charitable nature. See RCW 36.27.060 (prosecutor not prohibited from performing legal services of a charitable nature); RCW 43.10.115, 120-130 (attorney general or full-time deputy not prohibited from performing legal services of a charitable nature and special assistant attorney generals may engage in private practice).

      1. Local Ordinance. A municipal or local government attorney may be bound by a local ordinance or policy that places restrictions on the performance of legal services outside of his or her duties for the government agency. Therefore, an attorney employed by a local government agency should first determine whether pro bono work is restricted or specifically authorized by his or her employer.

      2. State Employees' Restriction.

        a. State Employees Generally. State law prohibits state employees from using state resources for the private benefit or gain of another unless such benefit or gain is part of the employee's official duties. RCW 42.52.160. Although pro bono legal work is not specifically delineated as "gain of another," it would be wise for the state attorney to refrain from using any state resource for the benefit of a pro bono client. This may lead to problems in serving the pro bono client if it is necessary to telephone other attorneys or witnesses during normal working hours, or meet the pro bono client for interviews, etc. Pursuant to RCW 42.52.160, it would be wise for the state attorney to arrange matters so that state-owned telephones, buildings, and similar resources are not used. Local government attorneys should consult local codes, policies and employee manuals for similar restrictions. See Wash. Const. art. VIII, §§ 5, 7.

        b. Assistant Attorneys General. Assistant Attorneys General are expressly permitted to perform pro bono legal services. RCW 43.10.130 provides that none of the other provisions of Chapter 43.10 RCW shall be construed to prohibit the Attorney General or any full-time deputy or assistant attorney general from performing legal services of a charitable nature. However, this statutory authorization must be read in conjunction with the limitations imposed by the Ethics in Public Service Act, Chapter 42.52 RCW. The practical difficulties created by the Ethics in Public Service Act, with regard to the use of state office equipment, personnel, and time, make pro bono participation by state-employed attorneys, in the form of representing indigent clients in court, impractical at best and impossible at worst. These difficulties may be overcome by participating in legal advice clinics outside of regular office hours and at locations other than state-owned or -leased facilities.

        Nonetheless, if state-employed attorneys are to give effect to RPC 6.1, the legislature should amend Chapter 42.52 RCW to permit its attorneys (both inside and outside of the Office of the Attorney General) to make reasonable, minimal use of state time, personnel, and equipment in order to fulfill their ethical obligations.

      3.  Insurance Restrictions. Insurance restrictions may also impact a government attorney's decision to provide pro bono services. Any attorney who is employed by a government agency should determine the policy limits and other restrictions that could impact the performance of pro bono legal services. The insurance provided by the government agency may not cover malpractice committed while the attorney is providing these services in a non-governmental capacity.

      4. Conflict of Interest. Finally, a government attorney may not represent a client or organization if that representation would result in a conflict of interest or would compromise the interests of either the pro bono client or the government agency for which he or she works. See supra Section I. When providing pro bono legal services, the government attorney should avoid any appearance of impropriety. WSBA Formal Ethics Opinions, Opin. No. 161 (1975) (a city attorney or assistant city attorney may represent defendants, provided the criminal charge did not originate in the city and no city representative investigated the incident).


Chapter 4: Statutory Conflicts of Interest for In-House Government Counsel (Excluding Attorneys)

Although it is commonly and correctly perceived that ethics standards for governmental officials and employees, including in-house counsel, have become stricter in recent years, there is a long history in American jurisprudence of viewing with repugnance the taking of things of value by governmental officials in return for governmental favors. Indeed, the United States Constitution, Article II, Section 4, specifically lists only two crimes - bribery and treason - as grounds for impeachment of the President, Vice President, or other civil officers of the United States.

I. PURPOSE OF CHAPTER

This chapter reviews Washington statutes dealing with conflicts of interest of governmental employees and officials and considers their application to in-house government counsel (i.e., attorney-employees of cities and towns, counties, school districts, ports and other special districts, and the State, but excluding Attorneys General).

II. GENERAL DEFINITION

Statutory conflicts of interest, generally speaking, are prohibited situations in which government officials or employees receive (or sometimes, seek to receive) things of value in exchange for (or sometimes, in apparent exchange for, or in possible exchange for) governmental benefit of some sort to the givers of the things of value.

III. BRIBERY AND CORRUPT INFLUENCE

The various crimes of bribery and corrupt influence applicable to public employee attorneys, Chapter 9A.68 RCW, are one sort of statutory conflict of interest.

    A. Bribery. Broadly, public servants (including attorneys) commit the felony of bribery if they request, accept, or agree to accept any pecuniary benefit with an agreement or understanding that their opinion, judgment, exercise of discretion, or other action will be used to secure or attempt to secure a particular result in a particular matter. RCW 9A.68.010. Public servants commit felonies if they request a pecuniary benefit for performing an official action that they know they are required to perform without compensation or for a lower level of compensation, RCW 9A.68.020, or if they request, accept, or agree to accept compensation for advice or other assistance in preparing a bill, contract, claim, or other transaction regarding which they know they are likely to exercise official discretion, RCW 9A.68.030.

    B. Corrupt Influence. Another criminal code form of government employee conflict of interest is found at RCW 9A.80.010, providing that public servants commit a gross misdemeanor if, with intent to obtain a benefit, they intentionally commit an unauthorized act under color of state law, or intentionally refrain from performing a duty imposed upon them by law.

IV.  CONFLICT OF INTEREST STATUTES

    A. Introduction. Except for RCW 36.27.050 (prohibiting county prosecuting attorneys from receiving fees or rewards for official services or from acting as counsel in any action involving the same facts as a criminal prosecution), there are no Washington statutes within the scope of this chapter dealing specifically with conflicts of interest of government attorney, as opposed to non-attorney, employees. The general statutory prohibitions reviewed below apply equally to attorney and non-attorney employees (and/or "public officials," and/or "public officers," as applicable) alike.

    B. Special Responsibility of Government Counsel. Nevertheless, in-house government counsel as frequent interpreters and sometimes enforcers of the conflict of interest statutes pertaining to their jurisdictions have a special duty to remain above reproach in relation to the governing rules and principles, both to set an exemplary standard for their co-employee and -official clients and to avoid the untenable ethical posture that exists when one is called upon to opine as to the legality of borderline conduct that one engages in, or has engaged in, oneself. Thus, where the scope or reach of a statute is uncertain (as is frequently the case in this area), the responsible and prudent governmental attorney errs on the side of caution and against any arguable appearance of conflict of interest.

    C. Statutes Applicable to Attorney Employees. The discussion sections in Sections V-VII below apply as indicated to attorney employees of the following groupings:

    • Cities/towns: Chapters 42.20, 42.23 RCW
    • Counties: Chapters 42.20, 42.23 RCW
    • School districts, ports and other special districts: Chapters 42.20, 42.23 RCW
    • State government: Chapter 42.52 RCW

V.  MISCONDUCT OF PUBLIC OFFICERS (CHAPTER 42.20 RCW)

    A. Definition of "Public Officer". Chapter 42.20 RCW contains several sections governing the conduct of "public officers," which term is undefined in the chapter.

      1. Old RCW 42.20.010, repealed as part of adoption of Chapter 42.52 RCW governing state employees, provided that "public officers" would not include most state employees, but all other public officials/employees remain within potential coverage.

      2. A narrow reading of "public officer" would restrict the term to elected or appointed policymaking officials, and perhaps to their chief executive or administrative functionaries, but chief municipal attorneys, for instance, are not clearly excluded.

      3. Chapter 42.23 RCW, treated in Section IV below, defines the perhaps similar term "municipal officer' to include not only elected and appointed "officers" of a "municipality" (i.e., county, city, town, district or other municipal or quasi-municipal corporation), but also such officers' deputies and assistants and all persons exercising or undertaking to exercise any of the powers or functions of officers.

      4. Thus, because governmental counsel commonly take on responsibility for at least a portion of their officer-clients' duties and functions, it is not safe to assume that even subordinate in-house counsel are beyond the reach of the chapter.

    B.  Conflict of Interest Prohibition. Chapter 42.20 RCW contains the following conflict of interest provisions at RCW 42.20.020 in addition to other prohibitions of improper official conduct:

    Every public officer who, for any reward, consideration or gratuity paid or agreed to be paid, shall, directly or indirectly, grant to another the right or authority to discharge any function of his office, or permit another to perform any of his duties, shall be guilty of a gross misdemeanor.

    Thus, government attorneys act in criminal conflict with their duties by allowing unauthorized persons to perform their duties in exchange for some personal benefit.

VI.  CODE OF ETHICS FOR MUNICIPAL OFFICERS - CONTRACT INTERESTS (CHAPTER 42.23 RCW)

    A. General Rule. Under RCW 42.23.030, "municipal officers" are generally prohibited from "self-dealing" where they would otherwise have the discretion to use their public position to favor their private interests over the interests of the public. Seattle v. State, 100 Wn.2d 232, 246, 68 P.2d 1266 (1983).

    B. Definition of "Municipal Officer". The extent of the reach of the term "municipal officer" has not been authoritatively established, but in-house governmental attorneys for cities, towns, counties, and various districts (but not for departments of the State itself) surely fall within the statute in at least some instances: RCW 42.23.020 provides that "municipal officer" includes not only elected and appointed officers and their deputies and assistants, but also "all persons exercising or undertaking to exercise any of the powers or functions of a municipal officer." Thus, e.g., counsel - regardless of rank - who are responsible for ensuring the implementation of governing body policies, or for carrying out statutory duties of the particular entity, also fall within the definition of municipal officer.

    C. Prohibited Conflicts of Interest.

      1. Conflicts Proscribed by Code of Ethics. The conflicts of interest proscribed by RCW 42.23.030 involve:

        a. A contract between the governmental entity and another party which is "made by, through or under the supervision of [the municipal] officer, in whole or in part, or which may be made for the benefit of his or her office;" and either

        b. The officer being "beneficially interested, directly or indirectly," in the contract; or

        c. The officer accepting, "directly or indirectly, any compensation, gratuity or reward in connection with such contract from any other person beneficially interested therein."

      2.  Beneficial Interests. "Beneficial interests" are financial interests and not other interests of a personal nature, Barry v. Johns, 82 Wn. App. 865, 920 P.2d 222 (1996).

      3. Strict Construction of Prohibition. The prohibition against an officer having a beneficial interest in a contract is strictly construed. Northport v. Northport Townsite Co., 27 Wash. 543, 68 Pac. 204 (1902), is illustrative:

      The general public policy upon which the statute . . . is founded is of ancient origin, and has been inexorably enforced by the courts throughout the history of the common law. It is that principle which requires the trustee to always occupy a position that shall be free from the dictates of any interest that may conflict with the obligations of his trust . . .

      Long experience has taught lawmakers and courts the innumerable and insidious evasions of this statutory principle [prohibiting self-interest in contracts] that can be made, and therefore the statute denounces such a contract if a city officer shall be interested not only directly but indirectly. However devious and winding the chain may be which connects the officer with the forbidden contract, if it can be followed and the connection made, the contract is void.

      Id. at 548-549 (emphasis supplied).

      4. Officer Involvement Requirement. Nevertheless, the contract in question must actually be made by, through, or under the supervision of the officer in question for the statute to be triggered; it is not impermissible, for instance, for a city council member to have a beneficial financial interest in a contract executed and supervised by an independent city official according to purely objective criteria: Seattle v. State, supra, at 246.

      5. Spousal Income. In the event a spouse of an attorney/officer with responsibility over personnel matters is an employee of the entity, the spouse's income constitutes a prohibited beneficial interest unless exempted by statute (such exemptions are extremely narrow, e.g., spouses may be bus drivers in very small school districts) or, possibly, avoided pursuant to a bona fide separate property agreement. State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948).

      6. Remote Interests. Prohibited beneficial interests do not encompass "remote interests," defined at RCW 42.23.040 to include, e.g., ownership of less than one percent of the shares of a contracting company.

        a. Care must be taken to observe the procedural requirements for taking advantage of the remote interest exception: the fact and extent of the interest in a particular contract must be disclosed to the governing body prior to contract approval, and recorded in official minutes or comparable records.

        b. A remote interest holder may not influence or attempt to influence any other "officer" to enter the contract in question.

      7.  Direct or Indirect Compensation. There is no Washington case law defining direct or indirect compensation, award, or gratuity, and the few cases from other jurisdictions vary in their severity. Receiving gifts, trips, lodging, meals, alcoholic beverages and refreshments (including everything down to coffee during the course of a negotiation over a prospective contract) might all be said to fall within the language of the statute, but no reported case has condemned less than the acceptance of meals and drinks. See, e.g., State v. Prybil, 211 N.W.2d 308 (Iowa 1973) (Iowa statute similar to Washington's violated by county official's acceptance of dinner and drinks in connection with contract with company).

        a. Chapter 42.52 RCW, discussed below, provides some guidelines for state employees in this regard (e.g., meals under $50 may generally be accepted, RCW 42.52.150(5), but not from contractors, -.150(4)), but is not applicable by its terms to other governmental employees.

        b. Thus, prudent (non-state) governmental attorneys involved in contract matters, or as to whom a particular contract may be said to be "for the benefit of his or her office," will draw the line for tolerable "gratuities" from contractors at a low level.

      8.  Violation. Violation of the provisions of Chapter 42.23 RCW voids the particular contract, exposes the violator to fines and other criminal and civil penalties (e.g., prosecution for bribery), and works a forfeiture of the violator's "office." However, another (and peculiar) section, RCW 42.23.060, provides generally that if provisions of the chapter conflict with any provision of a city charter, the city charter shall prevail. (Notwithstanding that, RCW 35.17.150 specifies that it is a misdemeanor for officers and employees of cities and towns to receive, from any enterprise operating under public franchise, any free tickets or services unless they are granted to the public generally.)

    D.  Additional Prohibitions. RCW 42.23.070, enacted in 1994 with Chapter 42.52 RCW, infra, added the following self-explanatory prohibitions (without indicating the consequences for violations), some of which deal with conflicts of interest:

      (1) No municipal officer may use his or her position to secure special privileges or exemptions for himself, herself, or others.

      (2) No municipal officer may, directly or indirectly, give or receive or agree to receive any compensation, gift, reward, or gratuity from a source except the employing municipality, for a matter connected with or related to the officer's services as such an officer unless otherwise provided for by law.

      (3) No municipal officer may accept employment or engage in business or professional activity that the officer might reasonably expect would require or induce him or her by reason of his or her official position to disclose confidential information acquired by reason of his or her official position.

      (4) No municipal officer may disclose confidential information gained by reason of the officer's position, nor may the officer otherwise use such information for his or her personal gain or benefit.

VII.  ETHICS IN PUBLIC SERVICE (CHAPTER 42.52 RCW)

    A. Generally. In recent years the legislature has consolidated former statutes and adopted and amended lengthy and relatively detailed conflict of interest provisions, Chapter 42.52 RCW, which apply generally to officers and employees of the State (but not to comparable persons within units of local or special-purpose government). The chapter has little or no authoritative interpretive guidance as yet, but is sufficiently prescriptive, taken together with interpretations of similar provisions in Chapter 42.23 RCW, supra, that it provides helpful ethical standards for state government attorney-employees.

    B. Prohibitions. State officers and employees are prohibited from having any interest, financial or otherwise, direct or indirect, or engaging in a business or transaction or professional activity, or incurring an obligation of any nature, that is in conflict with the proper discharge of their duties. RCW 42.52.020. The chapter provides the following more specific prohibitions:

      1. No state officer or employee may be beneficially interested, directly or indirectly, in contracts or other specified transactions that are made by, through, or under their supervision, or which are under their supervision (note here the expansion beyond "made" under supervision in RCW 42.23.030), or accept directly or indirectly any compensation, gratuity or reward from a person interested in a contract. RCW 42.52.030.

      2. State officers and employees cannot assist others in transactions involving the State where the officer or employee has participated on behalf of the State. RCW 42.52.040.

      3. State officers and employees cannot engage in employment or business that might reasonably involve the disclosure of confidential information. RCW 42.52.050.

      4. They may not receive things of value under any contract outside their official duties except in certain carefully-limited situations, RCW 42.52.120, or receive honoraria from state contractors or potential state contractors within the officer/employees area of influence, or from persons/companies likely to seek or oppose enactment of rules, policies or legislation by their agency if they may participate in such processes, RCW 42.52.130, or receive or solicit any thing of economic value if it could reasonably be perceived that such would influence their action or judgment, RCW 42.52.140.

    C.  Minor Gifts, Meals and Beverages, Private Gain from Control/Direction.

      1. Minor Gifts. Certain minor gifts are rebuttably presumed to not influence officials/employees and are allowed in most circumstances. RCW 42.52.150(2).

      2. Meals and Beverages. As to perhaps the most common type of ethical gray area in public employment--acceptance of meals and beverages--the statute provides some helpful guidance: officers and employees may accept food and beverage on infrequent occasions in the ordinary course of meals where attendance is related to the performance of official duties, provided that gifts in the form of food and beverage exceeding $50 on a single occasion must be reported according to the mechanisms in Chapter 42.17 RCW. RCW 42.52.150(5). But, they may not accept meals and beverages or other items, except in carefully enumerated and controlled circumstances, from potential contractors or regulatees of their agency. RCW 42.52.150(4).

      3. Private Gain from Control/Direction. And of course, they may not employ or use persons, money, or property under their control or direction or custody for their private benefit or gain. RCW 42.52.160.

    D.  Sanctions for Violation. Violations of the chapter are subject to sanction by fine, costs, and damages determined by ethics boards set up by the chapter (see, e.g., RCW 42.52.480), in addition to any criminal sanctions (e.g., for bribery) that may also be applicable.

VIII.  CONCLUSION

    In-house government attorneys may use the above to calibrate their actions in relation to their duties, but the broad principles are simple ones: do not have financial interests in, or engage in, any activity that interferes or may appear to interfere with the proper discharge of official duties, and do not use one's official position to secure special privileges for oneself. The trend is distinctly toward tighter interpretation of what is ethically acceptable, so when in doubt, don't do it! Personal reputation and the public's perception that their instruments of government are not subject to improper influence are far more valuable and important than any temporary and (by almost any measure) minor personal advantages that may accrue from crossing or skirting the lines.


Chapter 5: Client Ignores Advice/Proposes Improper Action

I.   ETHICAL DUTIES OF ATTORNEYS WHEN REPRESENTING CLIENTS WHO HAVE IGNORED THEIR ADVICE OR PROPOSED IMPROPER ACTION

    A. Obligation to Advise When Action Improper. When advising a client, an attorney has an ethical obligation to advise the client when a proposed action is improper.

      1. Attorney's Duty to Advise if Action Improper. When a client seeks advice about a proposed action, the attorney must advise the client if the action is improper.

        a. Exercise Independent Professional Judgment. RPC 2.1 requires lawyers to "exercise independent professional judgment and render candid advice." For example, if a client proposes an executive session to discuss an item which is not permitted under the statute, the attorney should advise the client that an executive session would be illegal. A lawyer must evaluate an action's propriety and possible consequences.

        b. Render Candid Advice. The advice to the client should include not only the conclusion that the action is proper or improper, but also the consequences for the client. A lawyer may rely on other considerations such as "moral, economic, social and political factors, that may be relevant to the client's situation." RPC 2.1. In representing public agencies and elected officials, those surrounding factors may be very important in advising a client. In a decision regarding an open meeting issue, for example, the client should be advised of the legal and political consequences of violating the Open Public Meetings Act.

      2.  Client Determines Course of Conduct. The attorney advises the client, but the client decides the course of conduct.

        a. Prohibited Advice or Assistance. The scope of an attorney's representation is limited by ethical considerations. The attorney may not advise clients to engage in activity that the attorney knows is criminal or fraudulent. RPC 1.2. "Fraudulent" refers to conduct having a purpose to deceive and not merely negligent misrepresentation. If the client has already pursued illegal conduct, the attorney may not advise or assist the client in furthering the crime or fraud. For example, in a real estate transaction, the attorney may not alter a legal description to defraud a party of security for a loan.

        b. Permitted Advice. A lawyer may discuss the legal consequences of a proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. RPC 1.2(d). An attorney should also inform the client that he cannot be a party to fraudulent or criminal conduct.

        c. Intent to Commit Crime not Confidential Information. Information that a client intends to commit a crime is not confidential, and an attorney may disclose information necessary to prevent a crime. RPC 1.6(b)(1).

      3.  Client Ignores Advice. Generally, clients are not aware that their proposed solution is improper and when so advised will follow your advice. An effective lawyer will not only advise the client that the proposal is improper, but will also advise the client how to reach the same result through alternative legal means. Certainly, there will be times when a client ignores the attorney's advice. In that case, it raises questions as to what the attorney's ethical duties are. As stated above, an attorney cannot further a criminal or fraudulent scheme. The more likely situation arises when a client has two or more courses of action, and the client ignores the attorney's recommendation and proceeds with the client's preference. For example, a health district wanted to implement a needle exchange program to combat the spread of AIDS. The health district's attorney's opinion was that distribution of sterile needles might violate the Drug Paraphernalia Act. Despite his concerns, the health district authorized both the program and litigation to establish its authority. Although the attorney had advised his client of his concerns, he was able to represent the health district.

    B.  Duty Regarding Assertion of Claims and Defenses. The Rules of Professional Conduct and the Civil Rules define an attorney's duty regarding asserting claims and defenses. If a client has proceeded contrary to an attorney's advice, the attorney may still represent the client with certain ethical limitations.

      1. Assertion of Frivolous Position Prohibited. RPC 3.1 provides that "[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

        a. Inform Client. In representing a client, a lawyer must inform the client that he or she cannot advance a frivolous claim or defense.

        b. Definition of "Frivolous." The motivation of the client may determine whether an action is frivolous. The Model Rule comment to RPC 3.1 observed that an action is frivolous if brought primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable to make a good faith argument for an extension, modification or reversal of existing law. For example, maintaining a suit against another lawyer to try to force him to convince his client from maintaining an action which the client had the right to bring is maintained only for purposes of harassment, coercion and malice and is improper. See In re Eddleman, 63 Wn.2d 775, 289 P.2d 296 (1964). An attorney may have advised his or her client that under the current case law, the client had to provide records in response to a public records request. If the client refused to disclose the records, the attorney may still defend if he or she has a good faith argument for nondisclosure and the client was not refusing to disclose just to be malicious or harassing.

        c. Duty to Investigate Facts. Civil Rule 11 imposes a duty upon the attorney to properly investigate the law and facts alleged in a pleading. This rule requires that an attorney sign each pleading, and such signature is certification that, to the best of the attorney's knowledge and belief, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose. The rule was designed to reduce "delaying tactics, procedural harassment and mounting legal costs." 3 A.L. Orland, Wash. Practice, Rule Practice, § 5141 (3d ed. Supp. 1991).

        d. Civil Rule 11 Sanctions. In determining whether to impose sanctions, the court must first find that the complaint lacks a factual or legal basis. In addition to that finding, the court must also find that the attorney failed to conduct a reasonable inquiry into the factual and legal basis of the claim. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992). Attorneys need to make reasonable investigations before filing pleadings containing factual and legal allegations. Attorneys who are involved prior to litigation should be aware of the factual and legal basis of a claim. Rule 11 motions have themselves been subject to abuse to attempt to chill the actions of attorneys. Sanctions are merited for attempting to misuse affidavits of prejudice to delay a proceeding. Suarez v. Newquist, 70 Wash. App. 827, 835, 855 P.2d 1200 (1993).

        e. Discovery Process. The most extensive definition of frivolous claims or defenses governs the discovery process. In matters involving discovery, the requirements of Civil Rule 26 will apply.

          i. Civil Rule 26 Certification. CR 26(g) requires the following certification by the attorney on all discovery:

          He has read the request, response, or objection, and that to the best of his knowledge, information, and belief formed after a reasonable inquiry it is: (1) consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (3) not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.

          ii. Objective Standard Used to Determine Violation; Sanctions. If certification is in violation of this rule, the court is required to impose an appropriate sanction. Washington State Physicians Insurance Exchange v. Fisons Corp., 122 Wn.2d 299, 355, 858 P.2d 1054 (1993). In Fisons, the Washington Supreme Court held that whether a reasonable inquiry has been made by the attorney is judged by an objective standard. Good faith alone will not shield an attorney from sanctions. Fisons, 122 Wn.2d at 343. The court considers the surrounding circumstances, the importance of the evidence to its proponent, and the ability of the opposing party to formulate a response or to comply with the request in determining whether an attorney has complied with the request. Fisons, 122 Wn.2d at 343. In the Fisons case, two "smoking gun" memos had not been produced during discovery and the importance of the evidence was apparent from the documents' contents.

          The limitations discussed above involve whether an attorney may advance claims and defenses. Clients may also propose that an attorney improperly represent them, but attorneys should advise them of ethical limitations.

      2.   Duty to Expedite Litigation. RPC 3.2 provides that "[a] lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client." The comments to the Model Rule state that the test is whether "a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay." As with the other rules in this area, compliance does not require ignoring the interests of the client, but is directed at tactics which serve no other purpose than delay. There will certainly be times when a client, such as a public official, is interested in resolution of a dispute within a certain time frame. For example, if an election is looming, the official may want to resolve the issue either before or after the election. A lawyer violates the ethical standards if he or she files an appeal solely for the purpose of delaying a trial. However, if there is a legitimate basis for appeal and the delay is not the purpose, there is no ethical violation even if the decision is delayed.

      3. Duty to Be Candid With the Court Regarding the Facts and the Law. RPC 3.3 defines the duty of candor toward a tribunal. The interplay between the duty to maintain confidences and secrets and the duty to be candid with the court can be complex. If an attorney is concerned about the falsity of a client's testimony, he or she should act promptly to address the problem.

        a. Disclosure of False Statements. A lawyer must not knowingly make a false statement of material fact or law to a tribunal. RPC 3.3(1). The lawyer is required to make reasonably diligent inquiries to ascertain the truthfulness of assertions made in affidavits or in open court. Failure to disclose a material fact is equivalent to an affirmative misrepresentation. In re Witt, 96 Wn.2d 56, 633 P.2d 880 (1981). If an attorney has an ongoing relationship with an agency or public official, this duty should be easier to fulfill. The trust between an attorney and client contributes to the ability to obtain accurate information. Sometimes crucial information is not discovered because of lack of candor or miscommunication between an attorney and a client. Not only can it raise ethical issues, it can also damage the agency's claim or defense. For example, most agencies have policies and procedures, but agencies may also deviate from those policies. Before presenting a claim or defense based on a policy, an attorney should make sure he or she understands how the policy is interpreted and implemented.

        b. Disclosure of Legal Problem. A lawyer must disclose an apparent legal problem to the court even though he or she has concluded that the law is unenforceable. In WSBA Formal Ethics Opinion, Opin. No. 29 (1954), an attorney asked whether in a probate proceeding, he must disclose that there is a problem with the status of the widow because she married the deceased within the period then prohibited to remarry after an interlocutory decree of divorce when he had concluded that the prohibition against remarriage was unconstitutional. The opinion concludes that the lawyer is obliged to disclose the situation and let the court determine the legal status of the widow. An attorney who failed to disclose prior divorce proceedings to a court misled the judge in violation of his ethical duty. In re Coons, 41 Wn.2d 599, 250 P.2d 976 (1952).

        c. Disclosure of Legal Authority. A lawyer has a duty to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel. RPC 3.3(3). Counsel may argue that a case is not controlling or does not apply to the facts of the pending case, but cannot conceal the case from the court because it may prevent the court from making an informed decision. A monetary penalty was imposed on an attorney for misrepresenting stipulated facts and for citing a dissent of a case as if it was the holding of the case. Sobol v. Capital Management Consultants, Inc., 126 P.2d 335 (Nev. 1986).

        d. Introduction of False Guidance. A lawyer may not ethically offer evidence that the lawyer knows to be false, and a lawyer may refuse to offer evidence that the lawyer reasonably believes is false. RPC 3.3(4)(e). However, a lawyer's duty regarding false evidence which has been presented may be modified by his or her duty to maintain client confidences and secrets. If the lawyer has offered material evidence and comes to know of its falsity, the lawyer must disclose this fact to the tribunal unless such disclosure requires a lawyer to disclose a client confidence or secret in violation of RPC 1.6. RPC 3.3(4)(c).

        e. Refusal of Client to Disclosure. If the client refuses to consent to disclosure, the lawyer may seek to withdraw from the representation in accordance with RPC 1.15. Termination of representation is permitted for that reason, but the lawyer must take steps to the extent reasonably practicable to protect a client's interests. The practical problem may be how to state the basis for withdrawal without disclosing client secrets or confidences. A lawyer must disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, and the lawyer believes it reasonably necessary to prevent the commission of a crime. RPC 3.3(2).

        f. Duty to Correct Mistake. An attorney has an ethical duty to correct a mistake when he becomes aware that the Court has acted based on a misrepresentation. In re Caffrey, 63 Wn.2d 1, 385 P.2d 383 (1963). A lawyer violated his ethical duty by advising a client to lie in a court proceeding. In re Ballou, 48 Wn.2d 539, 295 P.2d 316 (1956).

        g. Duty in Ex Parte Proceeding. In an ex parte proceeding, a lawyer has the duty to inform the court of all relevant facts known to the lawyer that should be disclosed to permit the court to make an informed decision, whether or not the facts are adverse. RPC 3.3(4)(f).

      4.  Duty of Fairness. The basis for RPC 3.4 is that justice is served when truthful disclosure of the facts is made in an efficient manner. A lawyer cannot unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist any other person to carry out such an act. RPC 3.4(a). An attorney's attempts to protect documents from discovery must be made through the legal process such as a motion for a protective order on the basis that the document is privileged. Fairness also dictates that an attorney cannot use records which were obtained in violation of a statute regarding confidentiality or when he or she is not sure whether they were obtained in violation of confidentiality. WSBA Formal Ethics Opinion, Opin. No. 98 (1961).

        a. Falsification of Evidence, Witness Inducement. A lawyer must not falsify evidence, counsel or assist a witness to testify falsely or offer an inducement to a witness which is prohibited by law. RPC 3.4(b). A witness's compensation cannot be dependent upon the outcome of the litigation or the testimony.

        b. Obeying Court Rules. A lawyer must not knowingly disobey an obligation under the rules of court except for open refusal based on an assertion that no valid obligation exists. RPC 3.4(c). The decision of whether the rules must be followed is the court's, not the attorney's. It is unfair if an attorney does not abide by the rules, unless he or she does so openly. Violation of the rules of court and court orders may be the basis for discipline. In re Vetter, 104 Wn.2d 779, 711 P.2d 284 (1985).

        c. Duty to Be Fair. In trial, a lawyer must continue to be fair to opposing counsel and the court. The lawyer may not allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. RPC 3.4(e). Referring to evidence which the court has ruled in limine as inadmissible does not meet the standard of RPC 3.4. State v. Wood, 44 Wn. App. 139, 721 P.2d 541 (1986). A lawyer may not assert personal knowledge of facts in issue except when testifying as a witness or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused, but may argue based on the analysis of the evidence for that position or conclusion. RPC 3.4(f).

      5.  Obligation to Respect the Impartiality and Decorum of the Tribunal. A lawyer may not seek to influence any trier of fact, such as a juror, potential juror, or judge, or other official by illegal means. RPC 3.5(a). The lawyer may not communicate ex parte with any such person except as permitted by law and may not engage in conduct intended to disrupt a tribunal. RPC 3.5(b),(c).

      6. Obligations Regarding Trial Publicity. The area of trial publicity is specifically governed by RPC 3.6. Trial publicity, which is designed to influence the jury or to detract from the impartiality of the proceedings is specifically prohibited. "A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." RPC 3.6.

      7. Summary. A lawyer's duty to represent his or her client does not override his or her ethical obligations toward opposing counsel or the court. Lawyers are expected to practice law with a spirit of cooperation and forthrightness. It is assumed that lawyers are abiding by the court rules. The power to decide how a rule shall be followed or applied resides in the court, not with an individual attorney. A lawyer's ethical obligations arise from admission into the Bar and license to practice in the legal profession. In return for that privilege, lawyers are obligated to comply with the rules and to act consistently with them for the proper functioning of that system.

    C.  Public Attorney Shopping. When a client is unhappy with an attorney's advice, he or she may choose to ignore that advice or may shop for another opinion from another attorney in the same office. Lawyers who practice in an office with more than one attorney may have experienced their client "shopping" for another opinion. It can be uncomfortable to be in that situation. Although an attorney can't prevent a client from "shopping," certain practices can reduce its occurrence.

    Practice Tips: First, an attorney-client relationship built upon trust and open communication is the best defense against opinion shopping. If the client values and trusts an attorney's judgment, they are less likely to try to circumvent the attorney's advice. Also, if there is good communication, the attorney can discuss his or her advice with the client and any reasons why the client may be unhappy with it.

    Some suggested practices would include the following: Maintain good working relationships with other government lawyers in your office. Discuss opinions and analysis with them. If several attorneys deal with the same client, consult each other on opinions. Be sure that attorney-client assignments are clear, as well as back-up assignments. If approached by a client regarding an issue that someone else usually handles, inquire why they are asking you. There will be issues upon which there is a difference of opinion. If so, discuss it with the other attorney first before telling the client the other opinion is wrong. There will always be issues upon which attorneys disagree, but what you want to avoid is the client manipulating the facts or omitting information in order to get the opinion they want.

    Avoid off-the-cuff opinions. Make sure that you have sufficient facts to offer an informed opinion. If you are not familiar with the legal issue, let the client know you would defer to someone else with more expertise. Voice mail and e-mail encourage instant opinions, but if you don't have all the facts or have not thoroughly researched the law, you won't be giving good advice.

    Qualify your opinion. If you are at all concerned, restate the facts upon which you are basing your opinion. If you were asked to review and give someone a cursory opinion, state that as well. Once you have delivered an opinion, it is out of your hands and you are not in control of its distribution. If the opinion is limited in scope, make sure that it is apparent from reading the opinion.

    Let the other attorney know about the request and what advice you gave. If you think that the client is shopping for an opinion, refer him or her back to the other attorney. If you do not know why you are being asked for an opinion, such as the unavailability of the attorney who usually advises the client, then you may want to make sure that this is not an instance of opinion shopping.

    Check previous internal advice on the same subject.

    In important matters, gather all the attorneys in the office to reach a consistent position.

    Don't answer hypotheticals. The best response is to request specific facts and circumstances before forming your opinion.

    Caveat: A local official may try to seek an attorney general opinion. If the client threatens to seek such opinion, you may wish to check attorney general opinions for similar circumstances. You may also wish to establish informal communications with the Attorney General's office.

II. ETHICAL CONSIDERATIONS FOR THE PUBLIC ATTORNEY IN THE CONTEXT OF WHISTLEBLOWER STATUTES

    A. Introduction - The Problem of Multiple Clients and Multiple Roles. State of Washington whistleblower statutes potentially involve the public attorney at several stages in the process:

    1. When the whistleblower first makes a complaint.
    2. When a public employee discloses suspected wrongdoing to the attorney.
    3. Referral of a whistleblower complaint to the appropriate party.
    4. Investigation of the complaint (including information gathering from the complainant, the subject(s) of the investigation, and his/her/their superior(s)).
    5. Report of the results of an investigation.
    6. Legal advice to the person charged with acting on the report.
    7. Being a witness in any subsequent legal action (retaliatory lawsuit, public interest lawsuit, State audit, claim for damages).
    8. Defending such a legal action.

    At least six potential "clients" can be identified:

    1. The whistleblower.
    2. The person complained against, or who divulges a wrongdoing.
    3. This person's superior, if the superior had knowledge, should have known, or failed to exercise some responsibility.
    4. The responsible department head and/or chief administrative officer of the government entity.
    5. The government entity itself.
    6. The "civis" -- the "public interest."

    Into this thicket wades the intrepid government attorney.

    Under both RCW 42.40 and Chapter 42.41 RCW, it appears that the attorney's first duty is to the whistleblower process itself: exposing the evil and protecting the whistleblower from retaliation. But, the public attorney's usual primary client is either the public interest or the entity for which he or she works. Even the "public interest" beast in this context can have three heads: the overall well-being of the common wealth, the whistleblower process itself, and the public interest in disclosure of governmental business.

    At the State level, the several divisions through which the Attorney General's office operates succeeds in isolating the various clients' interests. In larger municipal offices, the same result is achieved by usual screening processes. However, in very small or one-person offices, solving the multiple representation problem is more complicated. Even if outside counsel is involved, the very smallness of the municipality, the familiarity of employees with one another, and the lack of available resources make dealing with a whistleblower complaint truly problematic.

    B. Washington Whistleblower Statutes.

      1. General Provisions. The two whistleblower statutes are much the same. Each defines improper government action which is the subject of whistleblower complaints as being action by a government employee or official which violates the law, is an abuse of authority, endangers public health or safety, or is a gross waste of public funds. Personnel actions are excluded since there is a well-recognized process for this type of dispute.

      Both RCW 42.40 and 42.41 proscribe the use of official authority or influence to retaliate against a whistleblower. The statute applicable to State government sets out the actual procedure for handling whistleblower complaints. The statute applicable to local governments simply mandates the development of a procedure, with certain guidelines.

      2. State Agency Procedures. The procedures which must be followed by State agencies are as follows:

        a. Specific information regarding improper government action is provided to the State Auditor. Or, the Auditor's office may initiate its own investigation.

        b. The Auditor must acknowledge receipt of the complaint within five days. The identity of the whistleblower is confidential throughout the process.

        c. A preliminary investigation is accomplished within thirty days.

        d. If the investigation determines the complaint to be "insubstantial," notification to that effect is provided to the whistleblower.

        e. If there is found to be no "improper governmental action" or "less than a gross waste of public funds," the Auditor can still ask the affected agency to investigate and respond within thirty days. Results of this are sent to the whistleblower.

        f. If the complaint appears well-founded, a detailed investigation is conducted over the next sixty days. The Auditor has the usual array of subpoena and other discovery tools.

        g. If the allegations are borne out, the Auditor reports the same to the whistleblower, to the head of the whistleblower's agency, and to the attorney general. Generally, the Auditor's office itself has no enforcement powers.

      3. Local Government Procedures. For local governments, the governing body or the chief administrative officer develops a policy, posts it in a conspicuous place, and distributes it to all employees. The policy sets out who to report to, both within and without the local government, including the prosecuting attorney. The policy may require submission of a written report first. Employees who do not follow the policy cannot avail themselves of the protection against retaliation. Identity of the whistleblower shall be kept confidential "to the extent possible under law."

    C. Rules of Professional Conduct. At least the following Rules of Professional Conduct (RPC) are implicated in the whistleblower process:

      1. RPC 1.6 - Confidentiality. An attorney must keep the confidences of a "client."

      2. RPC 1.7 - Conflict of Interest; General Rule. An attorney cannot represent a client who is directly adverse to another client, without proper consent.

      3. RPC 1.9 - Conflict of Interest; Former Client. An attorney cannot represent interests adverse to a former client or divulge that client's confidences.

      4. RPC 2.1 - Advisor. An attorney shall exercise independent professional judgment on behalf of a client.

      5. RPC 3.7 - Lawyer as Witness. An attorney cannot act as an advocate in a trial where he or she may be a material witness.

      6. RPC 4.3 - Dealing with Unrepresented Persons. An attorney cannot state or imply that he or she is disinterested and must be sure the client understands this.

    D. Who is the Client?

      1. General Considerations. The earlier and somewhat metaphysical concept was that the client is the "public interest" -- the "people as a whole." This turns out to be not very workable, however, if for no other reason than it frequently leaves to the individual attorney the decision of what the public interest is, which is not an attorney's traditional role.

      Later, there developed the prevailing concept, that of the client being the "agency" or "entity." Among others, the Federal Bar Association Professional Ethics Committee and the District of Columbia Bar Special Committee of Government Lawyers endorse this approach. While not answering every ethical dilemma, the approach recognizes the real world facts that the agency hires, pays, and fires the lawyer. Also, every public agency has its own agenda and litigation strategy, as do its other sibling Federal and state agencies.

      But the strict "entity" rule presents its own problems. What happens in everyday life, and what at least potentially addresses every ethical dilemma, is an almost intuitive blend of both concepts: Within the bounds of the entity where he or she is employed, an attorney applies his or her own conscience about what the public interest is and what is "legal" and what is not.

      This is the standard set by ABA Model Rule 1.13, as to client confidences regarding possible wrongdoing by an organization or one of its employees:

        In determining how to proceed, the lawyer [representing an organization] shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer's representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation persons outside the organization.

      Comment 7 speaks to attorneys for government organizations, saying that "a different balance may be appropriate between maintaining confidentiality and assuring that the wrongful official act is prevented or rectified, for public business is involved." "A more difficult task," says the Comment, allowing "more extensive" questioning of the conduct.

      See also supra Chapter 1 for further discussion on client identification.

      2. What of the Whistleblower Arena? Whistleblower legislation has the effect of nudging the attorney back toward the public interest end of the spectrum. In a sense, the client can almost be said to be the process itself.

        a. State Agencies. As to State agencies, the client identity issue does not present as much of a problem because each department has its own legal staff -- including the deputy attorneys general assigned to the Auditor's Office specifically for whistleblower enforcement. A problem of perception may exist, however, since from the complainant's point of view at least, there appears to be a conflict of interest in having the same Attorney General's office involved on more than one side of the case.

        In the Auditor's office, upon receipt of a complaint the deputy charged with management of the whistleblower process and her attorney plan strategy, including erecting necessary screens. This practice of isolating attorneys in the same office from one another where a conflict exists has been sanctioned by the courts in Washington. Amoss v. University of Washington, 40 Wn. App. 666, 700 P.2d 350 (1985). The process then follows the outline described in Section B.2 supra.

        b. Local Governments. At the local level, particularly in a small office, the problem is much more perplexing. The first "client" the attorney sees may be the whistleblower, his or her supervisor, a department head, the mayor, or a city council member. At the earliest opportunity, this person must be advised about the nature of the process, the role of the city attorney, and the various parts others will play. The advice must be designed to head off misconceptions which may be in the individual's mind, particularly as to who is his or her legal representative and how confidential the discussion will be.

        The specific advice will vary depending on the details of the policy the local government has adopted. At this critical juncture, it must be decided who will conduct the investigation. Having the city attorney do this may disqualify him or her from representing anyone else in the process.

    E. The Investigation and Report.

      1. The Substance of the Statute: Improper Governmental Action. At the local level, once screens are erected and/or separate counsel arranged for where required, the investigator is required to makes decisions, chief among them being whether the action complained of constitutes a "substantial and specific" danger to the public health and safety or a "gross" waste of public funds?

      In the case of clear violation of the law, the prosecuting attorney will make this determination. In clear cases of harassment, discrimination, or violation of explicit policy, the answers may not be difficult. But, there are closer cases.

      An employee (which could be an attorney-employee) in good faith believes that a proposed affirmative action policy will violate the law. Or, a public works employee believes in good faith that non-placement of a traffic signal will result in a dangerous condition. Or, a public attorney or council member has a good faith belief that agreeing to settle a lawsuit will needlessly spend taxpayer's money.

      The statute defines improper governmental action broadly enough to include all of these examples. At one end of the spectrum there can be clearly improper course of action, and blowing the whistle is called for. At the other end of the spectrum a governmental entity is simply weighing policy pros and cons, but the would-be whistleblower believes superiors are exercising bad judgment.

      In the middle of this spectrum, where plausible legal arguments can be made on behalf of the agency's actions, courts will ultimately decide whether the whistleblower process -- or more likely, the rights of the retaliated-against whistleblower -- outweighs the right, and probably the duty, of the governmental body to make debatable policy decisions. And since any action adverse to a whistleblowing employee will be perceived as retaliation, the facts must be diligently marshalled and the options carefully weighed.

      Care must be taken by the public attorney, as either investigator or legal advisor to the investigator, that the investigation itself be neutral and impartial and that the extent of "wrongdoing" is objectively assessed. If that attorney is usually the primary legal advisor to the mayor of chief administrative officer and/or the affected department, his or her independent professional judgment will be sorely taxed.

      2. Completeness of the Investigation. How far, fast, and diligently to pursue a complaint will always be a difficult judgment to make. Both this and what remedial actions to take also have monetary components -- not just budgetary but also in terms of potential litigation.

      The State statute prescribes thirty- and sixty-day time frames, depending on the circumstances. The test for a local government's timeliness and depth of investigation would likely be the usual "abuse of discretion"/"arbitrary and capricious" standards.

      3. Confidentiality and the Public Disclosure Law. Under the State whistleblower statute, the identity of the complainant is protected. In addition, the State Auditor considers anyone providing information during the investigation to be a "whistleblower" also. At the local government level, the extent of confidentiality is less clear -- "to the extent possible under law."

      The Public Disclosure Act embodies Washington's strong policy in favor of open government and public disclosure of documents. The Attorney General has ruled that not only the final report of a whistleblower investigation but also the working papers are public documents. In an attempt to reconcile this, the Auditor's Office undertakes an extensive redaction process, with advice from its deputy attorney general, before the final report is released.

      In the smaller, local government environment, nowhere is the public attorney's conflicting interests better exemplified than in making the determination between the public interest in exposing governmental wrongs via the public disclosure act (and the monetary penalties for being wrong) on the one hand, and the public interest in exposing governmental wrongs via the whistleblower process (and the monetary sanctions for being wrong) on the other. Stated another way, does representing the governmental entity mean one must protect disclosure of a whistleblower's identity based on RCW 42.41, and at the same time allow disclosure based on 42.17? There is thus presented the unique situation of lawyer having to represent the same interest of the same client, whether defined as the "entity" or the "public interest," and coming to diametrically opposite results!

      The whistleblower's identity will be protected initially to be sure. But a well-drafted public disclosure request and threatened lawsuit raises the specter of frequently unpredictable decisions by courts as to the extent of redaction allowed, to whom privacy rights are extended, and the like. Both RPC 1.7, the general conflict of interest rule, and RPC 2.1, independent professional judgment, can be implicated here.

      4. Special Confidentiality Considerations for Federal Government Employees. While not involving a whistleblower's allegation (per se), a balancing act was performed by the Federal court in addressing First Lady Hillary Rodham Clinton's right to keep her White House attorney's notes of conversations regarding Vincent Foster's death out of the hands of the Office of Independent Counsel. In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997). Although recognizing the broad protection of confidentiality in the private corporation context (Upjohn v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)), the court held this not to apply so readily when the government is involved. Instead, the district court upheld "the general principle that the government's need for confidentiality may be subordinated to the needs of the government's own criminal justice processes." 112 F.3d at 919. The court pointed out that Federal government lawyers are under a statutory duty to report criminal wrongdoing. See 28 U.S.C. § 535(b). The court said that a government official who fears he or she may have violated the law should talk to a private, not a government, attorney. 112 F.3d at 921. See supra Chapter 2, Section III.B.2 for further discussion.

      Certainly, Washington's whistleblower statutes are analogous to a government's "own criminal justice processes."

    F. The Attorney as Whistleblower.

      1. Two Scenarios. In one instance, the government attorney reaches a conclusion based on his or her observations that some wrongdoing has occurred. In the second instance, probably more common, an employee reveals to his or her government attorney previous or contemplated activity which violates law or policy.

      2. The Attorney Alone. Stated one way, is an attorney protected from retaliation if he or she provides information in good faith that wrongdoing has occurred, which information was obtained in confidence as the agency's attorney? Examples might include a department's decision to not take a protective health or safety action, a mayor's decision to undertake litigation which would arguably result in a gross waste of public funds, or the personnel department's decision not to discipline a subordinate employee who may have acted illegally -- a "cover-up" according to the lawyer who disagrees.

      Which controls -- the duty to keep confidences, the duty to exercise independent judgment, or the whistleblower's duty to expose wrongdoing?

      In Crandon v. State, 897 P.2d 92 (Kan. 1995). Ms. Crandon, general counsel of the State Banking Commission, was fired for blowing the whistle to the FDIC about a Commission officer's allegedly improper loan. She filed a lawsuit arguing that she had been retaliated against. The Kansas Supreme Court held that she had not been terminated in retaliation for whistleblowing, holding that (a) she was hired to represent the Commission, not prosecute it (the "entity" rule), (b) she acted with reckless disregard of the truth or falsity of her claim (she had only second-hand knowledge), and (c) she had not gone through channels, i.e., through her supervisor, who was also the immediate supervisor of the official complained of and to whom she owed a duty to keep advised -- "the core of the attorney-client relationship." Had she done so, she would have found out that the superior had already looked into the facts and found the loan to be proper.

      Certainly, the unfortunate (for Ms. Crandon) fact pattern helped the court decide to who she owed her primary loyalty. As the discussion in C, immediately below, indicates, a quite different result should obtain if the facts demonstrate clear wrongdoing. (For a suggestion as to what the result would be in the case of a mere disagreement with agency policy, see the discussion at VII.C, below.)

      3. The Public Employee, Innocently or Not, Reveals a Past or Contemplated Misdeed. This can happen whether the employee is casually chatting with the attorney or is actually seeking legal advice. RPC 1.6 of course does not require client confidences to be kept if necessary to prevent commission of a crime, but what if the questionable act has already taken place -- or if the act is not technically a crime?

      The District of Columbia Bar has advised that when, in the course of representing an agency, a government lawyer while providing legal advice learns from an employee that he or she has committed or is about to commit an impropriety, the lawyer owes a fiduciary duty to the agency which is the client, not the individual employee. And, the lawyer must disclose that information and may also testify as to it later. ABA/BNA Lawyers' Manual on Professional Conduct, Vol. 1, No. 32, pp. 705-7, reporting D.C. Bar Committee on Legal Ethics Opinion No. 148, January 22, 1985. Also cited are (former) Ethical Consideration 5-18 and ABA Model Rule 1.13.

      In Washington, in the private corporation context, the courts have held that the attorney-client privilege belongs to the corporation, not to individual officers and directors. Odmark v. West Side Bancorporation, 636 F.Supp. 552 (W.D. Wash. 1986), Judge Rothstein applying Washington law.

      For purposes of RPC 1.9 and disqualification of an attorney because of prior representation of a client, it has likewise been held that a public attorney in Washington represents government employees only in their official, not personal, capacities. State v. Greco, 57 Wn. App. 196, 787 P.2d 940 (1990).

      The sum total of these considerations, coupled with the Hillary Clinton case's insistence on deference to the government's own investigative processes of which whistleblowing seems certainly to be one -- and assuming that there has been no opportunity to warn the client of the limited confidentiality -- is that the attorney not only cannot keep the wrongdoing private, but is under an affirmative duty to disclose it.

      With this conclusion, particularly in the small governmental entity, comes the full array of ethical considerations mentioned at the outset of this section. See supra Section II.C.1-6.

    G. Retaliation.

      1. Protection from Retaliatory Discipline. From the perspective of the governmental entity, the acid test in many cases involving whistleblowers is the ability to avoid or at least prevail in a lawsuit that alleges retaliation. Cases discussing retaliation against a whistleblower are, not surprisingly, fact-intensive. See Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989).

      Ethical considerations in this setting have not yet been touched upon by the courts. As just one such issue, consider the lawyer's role protecting the governmental entity's interest in managing its work force through the disciplinary process and that lawyer's role advancing the public interest by investigating a whistleblower complaint. Can the attorney who shepherded the whistleblower investigation and advised the entity to take no action also provide legal advice to the personnel department justifying terminating the complaining employee? Is his or her judgment impaired by the earlier decision?

      The safest guidance, once again and though undoubtedly costly, would seem to be independent counsel. Absent this, the argument certainly should be made that this is no different from the multiple roles a public attorney daily plays, particularly in small communities, dispensing advice on a wide range of matters where the results of that advice have differing and sometimes opposing ramifications. See supra the discussion of public disclosure, subsection E.3.

      2. "Good Faith" of the Activity Complained Of. Nurse Farnham blew the whistle on her employer's life-support termination policies and practices, and was herself...er...terminated. The court found that her firing was for good cause and not retaliatory, in part, because the employer in good faith believed its policies were in accordance with applicable law. Farnham v. Crista Ministries, 116 Wn.2d 659, 807 P.2d 830 (1991).

      The court in Farnham is arguably less protective of overzealous challenges to policies with which an employee disagrees, as opposed to allegations of outright violations of law. See the discussion in section V.B, above. The public benefit of the whistleblowing process may justify, at least morally, an employee erring on the side of making a complaint. But, when the investigation reveals little or no wrongdoing, and in fact shows the whistleblower to have been a problematic employee, the public lawyer -- who may have advised a "Nurse Farnham" and/or participated in the investigation of her complaint -- must now consider the ramifications of defending an alleged wrongful termination. And in a medium to small city, the personalities and employment histories and all sorts of other extraneous (and maybe or maybe not irrelevant) considerations abound.

    H. General Practice Pointers. If one were to simply rank in some order the considerations addressed in this chapter, the list might look something like this:

      1. Identify the "client" and advise him or her accordingly at the first opportunity, including advice regarding client confidences and your duty to disclose.

      2. Erect a screen or otherwise assign conflicting legal representation, and inform affected parties to this effect.

      3. Review and make recommendation regarding the investigative report, keeping the whistleblower process itself in mind.

      4. Consider public disclosure issues arising from release of final report.

      5. Be prepared for the situation where you may be the whistleblower.


Chapter 6: The Ethical Issues for Prosecutors

I.  PROSECUTOR'S ROLE

    A. Prosecutorial Power. "Today prosecutors have an extensive domain and are regarded as potentially, if not in reality, the key actor in the criminal justice system." William F. McDonald, The Prosecutor 19 (1979).

    B. Dual Roles. "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor B indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." Berger v. United States, 295 U.S. 78 (1935).

    In 1969, Washington's Supreme Court in State v. Gibson, 75 Wn.2d 174, 177, 449 P.2d 692 (1969) said, "The closing paragraph in State v. Montgomery could well be on the desk of every prosecutor as a constant reminder of the high duties of his officer." Here is the paragraph:

        It is not our purpose to condemn the zeal manifested by the prosecuting attorney in this case. We know that such officers meet with many surprises and disappointments in the discharge of their official duties. They have to deal with all that is selfish and malicious, knavish and criminal, course and brutal in human life. But the safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope for. Their devotion to duty is not measured like the prowess of the savage, by the number of the victims.

    State v. Montgomery, 56 Wash. 443, 105 P. 1035 (1909). A prosecutor is a quasi-judicial officer who, in the interest of justice, must act impartially to insure that the accused is given a fair trial. State v. Charlton, 90 Wn.2d 657, 665, 585 P.2d 142 (1978). See also State v. Gibson, 75 Wn.2d 174, 176, 449 P.2d 692 (1969); State v. Huson, 73 Wn.2d 660, 663, 440 P.2d 192 (1968); State v. Carr, 160 Wash. 74, 84, 294 P. 1016 (1930); and State v. Pryor, 67 Wash. 216, 219-20, 121 P. 56 (1912).

II.  PRETRIAL

    A. Immunity. A functional analysis is used to decide whether a prosecutor is immune from civil liability. When the prosecutor is functioning as an advocate, i.e., "initiating a prosecution and in presenting the state's case insofar as that conduct is intimately associated with the judicial phase of the criminal process," absolute immunity attaches. Imbler v. Pachtman, 424 U.S. 409, 96, S.Ct. 984, 47 L.Ed.2d 128 (1976). When a prosecutor gives legal advice to the police during the prefiling investigatory stage, which is neither a historical nor common law prosecutorial function, the prosecutor receives qualified, not absolute, immunity. Burns v. Reed, 500 U.S. 478, 111 S. Ct. 1934, 114 L.Ed 2d 547 (1991). See infra Section III.G.1.d for a discussion of Kalina v. Fletcher (prosecutorial immunity does not protect prosecutor who allegedly made false statements of fact in an affidavit supporting application for arrest warrant). Qualified immunity requires proof of both good faith (the prosecutor acted within her authority and without malice) and the prosecutor was unaware that the act complained of under the circumstances violated a clearly established right. Other situations where the United State Supreme Court held that the prosecutor had qualified, not absolute immunity, include: (1) fabrication of false evidence by shopping for a favorable expert witness before probable cause developed and (2) making allegedly false statements during a press conference. Buckley v. Fitzsimmons, 509 U.S. 259 (1993). See generally infra Section III for a discussion of immunity cases.

    B. Charging Decision.

      1. Constitutional Limitations. Prosecutors are vested with wide discretion in determining whether to file charges. Also, the prosecutor's exercise of discretion in charging some but not others with the same crime does not violate the equal protection clause of the federal constitution as long as it was not "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification." Oyler v. Boles, 368 U.S. 448, 456, 81 S.Ct. 502, 7 L.Ed.2d 446 (1962).

      2. RPC's Minimal Filing Standard. "The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause." RPC 3.8 (a).

      3. Washington's Statutory Recommended Prosecuting Standards for Charging and Plea Dispositions. Washington is unique in having statutory standards for the prosecutor's filing and case disposition functions. RCW 9.94A.430 -.460 enunciates recommended filing and disposition standards for prosecutors. They apply only to felonies. They set a higher standard than the RPC'S "probable cause" requirement. For example, crimes against property are to be filed only if the admissible evidence is sufficient to make a conviction "probable."

    C.  Publicity.

      1. Trial Publicity Prejudicial to Defendant May Violate Due Process. In the seminal case of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), Dr. Sam Sheppard was accused of murdering his wife, Marilyn. The Supreme Court held that when trial publicity creates a probability of prejudice to the defendant, the defendant is denied due process of law if the trial judge does not take steps sufficient to ensure a fair trial for the defendant.

      2. Protection Codified. RPC 3.6 states that a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or should know that "it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." "Guidelines for Applying RPC 3.6" enumerate the following among prejudicial, improper statements: character, reputation or criminal history of suspect or witness; possibility of a guilty plea; and existence or contents of a confession. The "Guidelines" list permissible announcements, such as defendant's name and occupation, time and place of arrest and the like.

      3. Responsibility for Others. The prosecutor shall "exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6." RPC 3.8 (e).

    D.  Plea Negotiations.

      1. Nature of Bargaining. "But in the 'give and take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer." Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978).

      2. The Negotiated Contract. The bargain is a contract that the prosecutor is bound to keep. In the key case, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the prosecutor mistakenly made a recommendation for the maximum sentence although the prior prosecutor promised to make no recommendation. The United States Supreme Court remanded the case for a hearing to decide whether to resentence or allow a plea withdrawal. The Court held that this measure was necessary to preserve the integrity of the plea bargaining process and "(t)his is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge." Id. at 263.

      3. Washington's Statutory Requirements. RCW 9.94A.080 outlines the acceptable content for a plea agreement, which is virtually unrestricted by the statute. However, the statute does provide that "in no instance may the prosecutor agree not to allege prior convictions."

    E.  Discovery.

      1. Exculpatory Evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) involved a prosecution for murder where the defendant requested records of extrajudicial statements of the defendant's accomplice in which the accomplice admitted committing the murder. The Supreme Court held:

        We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

        (This principle) is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the court.' A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not 'the result of guile,' to use the words of the Court of Appeals.

      Brady, 373 U.S. at 87-88. See also State v. Wright, 78 Wn. App. 93, 895 P.2d 713, rev. denied, 127 Wn.2d 1024, 904 P.2d 1157 (1995).

      2. Brady Codified.

        a. Rules of Professional Conduct. The prosecutor in a criminal case shall make timely disclosure to the defense, of all evidence or information known to the prosecutor, that tends to negate the guilt of the accused or mitigates the offense and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. RPC 3.8 (d).

        b. Discovery Rules. Except as otherwise provided as to protective orders, the prosecuting attorney shall disclose to defendant's counsel any material or information within the prosecuting attorney's knowledge which tends to negate defendant's guilt as to the offense charged. CrR 4.7 (a) (3).

        The prosecuting attorney's obligation under this section is limited to material and information within the knowledge, possession or control of members of the prosecuting attorney's staff. CrR 4.7 (a) (4).

        The duty to disclose is ongoing. When additional information is found, the prosecutor is to "promptly" notify defense counsel, and, if the case is in trial at the time, also notify the judge. CrR 4.7 (h) (2). See infra Section III.A.

      3.  Material Held by Others.

        a. Discovery Rules. Upon defendant's request and designation of material or information in the knowledge, possession or control of other persons which would be discoverable if in the knowledge, possession or control of the prosecuting attorney, the prosecuting attorney shall attempt to cause such material or information to be made available to the defendant. If the prosecuting attorney's efforts are unsuccessful and if such material or persons are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to the defendant. CrR 4.7 (d).

        b. Duty to Learn of Favorable Evidence. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police. Kyles v. Whitley, 514 U.S. 410, 115 S.Ct. 1555, 1567, 131 L. Ed. 2d 490 (1995).

    F.   Contacts with Judge, Witnesses and Others.

      1. Communicating with Person Represented by Counsel. RPC 4.2 provides:

        In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law so to do.

      2. Dealing with Unrepresented Person. RPC 4.3 provides:

      In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

      3. Barricading a Witness.

        a. Rules of Professional Conduct. RPC 3.4 provides that a lawyer shall not "unlawfully obstruct another party's access to evidence." In addition, a lawyer shall not counsel or assist another person to do such an act. RPC 3.4(a).

        b. Court Rules. CrR 4.7 (h)(1):

        Investigation Not to Be Impeded. Except as is otherwise provided with respect to protective orders and matters not subject to disclosure, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons other than the defendant having relevant material or information to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel's investigation of the case.

        c. WSBA Informal Ethics Opinion 88-2:

        We believe that encouraging witnesses not to be interviewed unless the prosecutor is present constitutes obstructing access to the witness, which is prohibited by RPC 3.4.

        See infra Section III.A for additional citations and discussion.

      4.  Judicial Contacts.

        a. Rules of Professional Conduct. RPC 3.5 provides that a lawyer shall not

          (a) Seek to influence a judge . . . by any means prohibited by law;

          (b) Communicate ex parte with such person except as permitted by law  .  .  .  .

        b. Rules of Judicial Conduct.

          i. Under the Rules of Professional Conduct, it is unprofessional conduct for a lawyer to knowingly assist a judge "in conduct that is a violation of applicable rules of judicial conduct."

          ii. Canon 3 of the Code of Judicial Conduct provides:

            (4) Judges should accord to every person who is legally interested in a proceeding, or that person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding . . . .

III.     TRIAL ISSUES

    A. Prosecutorial Misconduct.

      1. Duty of Fairness and Impartiality in Court. A prosecuting attorney's duty to be fair is as important as his duty to the general public to actively prosecute violators of the law. State v. Charlton, 90 Wn.2d 657, 585 P.2d 142 (1978). The prosecutor must act impartially, and trial behavior must be worthy of the position. State v. Music, 79 Wn.2d 699, 489 P.2d 159 (1971).

        a. Duty to Present Facts and Law Fairly. A prosecutor has a duty to present the facts and the law fairly, not mislead the jury, and see that a defendant in a criminal prosecution is given a fair trial. State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984).

        b. Duty to Make Witnesses Available. A prosecutor has a reasonable duty to make prosecution witnesses available to the defense. State v. Simonson, 82 Wn. App. 226, 917 P.2d 599 (1996).

        c. Duty to Provide Exculpatory Evidence. The prosecutor has a duty to provide any evidence that creates a reasonable doubt as to defendant's guilt. State v. Campbell, 103 Wn.2d 1, 17, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985). However, the mere possibility that an item of undisclosed evidence might have helped the defense does not establish the duty. State v. Mak, 105 Wn.2d 692, 704-05, 718 P.2d 407, reconsideration denied, cert. denied, 479 U.S. 995, 107 S. Ct. 599, 93 L. Ed.2d 599 (1986).

      2.  Chill Exercise of Constitutional Rights. Prosecutors may not act in a manner that would unnecessarily chill the exercise of a constitutional right. State v. Rupe, 101 Wn.2d 664, 705, 683 P.2d 571 (1984) .

      3. ABA Standards - Courtroom Decorum. The American Bar Association has promulgated rules that address general responsibilities of a prosecutor in the courtroom during trial, including Standard 3-5.2, Courtroom Decorum. This standard provides that the prosecutor should support the authority of the court and the dignity of the trial courtroom by strict adherence to the rules of decorum and by manifesting an attitude of professional respect toward the judge, opposing counsel, witnesses, defendants, jurors, and others in the courtroom. American Bar Association, Standards of Criminal Justice, Standard 3-5.2 (2d ed. 1980) [hereinafter ABA Standards for Criminal Justice].

      4. Rules of Professional Conduct. The Washington Rules of Professional Conduct (RPC) include provisions that address responsibilities of attorneys, including prosecutors, to maintain fairness and proper decorum in court. Those provisions, in summary, include :

        a. RPC 3.4 - Fairness to Opposing Party and Counsel. A lawyer shall not interfere with another party's access to evidence. A lawyer shall also not disobey the court (without an assertion of a valid obligation). A lawyer shall also not make a frivolous discovery request nor fail to make reasonably diligent effort to comply with a legally proper discovery request, nor allude to matters that are not relevant or not supported by admissible evidence, nor assert personal knowledge of facts in issue except when testifying as a witness; nor state personal opinions as to the justness of a cause or the credibility of witnesses.

        b. RPC 3.5 - Impartiality and Decorum. A lawyer shall not disrupt proceedings nor seek to influence a judge, juror, prospective juror or other official by means prohibited by law.

      5.  Ex Parte Communications - Prosecutor and Court. In United States v. Alverson, 666 F.2d 431 (9th Cir. 1982), the court vacated a defendant's sentence and remanded for resentencing before a different judge due to ex parte communications between the government officials involved in that case, even though the information conveyed to the court was essentially the same as that contained in the presentence report. See also United States v. Wolfson, 634 F.2d 1217, 1221-22 (9th Cir. 1980).

    B.  Voir Dire, Jury Challenges.

      1. ABA Standards.

      3-5.3 Selection of Jurors The prosecutor should be prepared for the jury selection function, including use of challenges for cause and peremptory challenges. Voir dire should be used only to obtain information for the intelligent exercise of challenge, not to argue the case or present factual matter not admissible at trial. ABA Standards of Criminal Justice, Standard 3-5.3.

      2. State Constitution - Religious Beliefs. Article 1, Section 11 of the Washington State Constitution spells out a limitation in the voir dire process relating to religious beliefs:

        No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror, in consequence of his opinion on matters of religion, nor be questioned in any court of justice touching his religious belief to affect the weight of his testimony.

      3. Voir Dire Purpose - To Select Qualified Jurors (to Determine Whether to Use Challenges). The purpose of voir dire is to enable the parties to learn the state of mind of prospective jurors so that they can know whether or not any of them may be challenged for cause, and to determine the advisability of interposing their peremptory challenges. It is not a function of voir dire to educate the jury panel to particular facts, to compel the jurors to commit themselves to a particular vote, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law. State v. Frederiksen, 40 Wn. App. 749, 752, 700 P.2d 369 (1985).

      4. Race-Based Exclusion. The equal protection clause prohibits a prosecutor from using peremptory challenges to exclude jurors solely on the basis of race. To make a prima facie case of discrimination in use of peremptory challenges, the defendant must show that challenge was exercised against member of constitutionally cognizable racial group, and that use of the challenge and other relevant circumstances raised an inference of discrimination. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

        a. Burden - Prima Facie Case. Under Batson, the defendant has the initial burden of establishing a prima facie case of purposeful discrimination in jury selection. State v. Rhodes, 82 Wn. App. 192, 196, 917 P.2d 149 (1996). First, the defendant must show the peremptory challenge was exercised against a member of a constitutionally cognizable racial group. Second, the defendant must show that this fact, taken together with other relevant circumstances, raises an inference that the prosecutor's challenge was based on the status of the venire-person as a member of that group.

        If the defendant establishes a prima facie case of purposeful discrimination, the burden shifts to the prosecution to articulate a neutral explanation related to the particular case to be tried. This must be more than a general denial of discriminatory intent. In determining whether a prosecutor's explanation is based on discriminatory intent, courts consider whether the prosecutor has stated a reasonably specific basis for the challenge.

        If the trial court concludes that no prima facie case of racial discrimination in state's use of peremptory challenges exists, the prosecutor is not required to offer a race-neutral explanation. The prosecutor may nevertheless state the race-neutral explanation for the record. However, upon a showing of a prima facie case, the trial court must then determine whether purposeful discrimination did in fact occur. State v. Burch, 65 Wn. App. 828, 840, 830 P.2d 357 (1992).

        Evaluation of the prosecutor's race-neutral explanation lies peculiarly within a trial judge's province, and is accorded great deference on appeal. State v. Sanchez, 72 Wn. App. 821, 826, 867 P.2d 638 (1994), (quoting Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395 (1991)).

        b. Pattern of Strikes, Possible Racial Motive. Circumstances which raise an inference of discrimination in the use of peremptory challenges under Batson include a pattern of strikes against members of a constitutionally cognizable group and the prosecutor's questions and statements during voir dire examination. State v. Wright, 78 Wn. App. 93, 896 P.2d 713, review denied, 127 Wn.2d 1024, 904 P.2d 1157 (1995).

        State v. Ashcraft, 71 Wn. App. 444, 459, 859 P.2d 60 (1993) held that even if the exclusion of the lone African-American from the jury panel could be considered a pattern of exclusion, a prima facie case of racial exclusion was not established, absent other circumstances indicating purposeful exclusion of African-Americans from jury.

      5.  Gender-Based Exclusion. Gender-based peremptory challenges are also impermissible under state's Equal Rights Amendment since such challenges deny female venire persons' equal rights and responsibilities on the basis of gender. Wash. Const., art. XXXI, § 1; State v. Burch, 65 Wn. App. 828, 833, 830 P.2d 357 (1992).

      6. Physical Handicap Exclusion. The application of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to handicapped or disabled persons is not well settled.

      In People v. Wiley, 165 Ill.2d 259, 270, 651 N.E. 189 (1995), the court was asked to rule on a challenge to the exclusion of a person who was suffering from some obvious disability or impairment that may have been physical or may have been alcohol or drug related. After holding a Batson hearing, the court held that a prospective juror's affliction with a condition that renders the juror unable to be attentive during the course of trial is an acceptable reason for excluding that juror.

      In Galloway v. Superior Court of District of Columbia, 816 F.Supp. 12 (D.D.C., 1993), 1 ADD 663, 2 AD Cas 577, the trial court was enjoined from categorically excluding blind persons from jury service where evidence supported the contention that visual observations were not necessarily essential to the function of jurors, and that the plaintiff had individual qualifications to serve competently on the jury. As such, the action violated 29 USC Section 794 and 42 USC Sections 1983 and 12132.

      7. Language-Based Exclusion. In State v. Sanchez, 72 Wn. App. 821, 827, 867 P.2d 638 (1994), the court addressed language in terms of its applicability to the Batson test. In that case, a juror was challenged because English was his second language. In ruling that the prosecutor's explanation was race-neutral, the court cited Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395 (1991), in which the prosecutor had concerns about jurors who might have difficulty in accepting the translator's rendition of Spanish-language testimony.

      8. Third-Party Equal Protection Clause. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), held, "[A] defendant in a criminal case can raise the third-party equal protection claim of jurors excluded by the prosecution because of their race  .  .  .  . To bar petitioner's claim because his race differs from that of the excluded jurors would be to condone the arbitrary exclusion of citizens from the duty, honor, and privilege of jury service." "[W]e hold that a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded jurors share the same race."

    C.  Opening Statements.

      1. ABA Standards.

      3-5.5 - Opening Statement. The prosecutor's opening statement should be a brief statement of the issues in the case and the evidence the prosecutor intends to offer and believes in good faith will be admitted. ABA Standards for Criminal Justice, Standard 3-5.5.

      2. Opening Statement - Brief Statement of Issues and Evidence. The prosecutor's opening statement should be confined to a brief statement of the issues of the case, an outline of the anticipated material evidence, and reasonable inferences to be drawn therefrom.State v. Campbell, 103 Wn.2d 1, 15-16, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985).

      3. Good Faith Belief Testimony Will Be Produced. State v. Campbell, 103 Wn.2d 1, 16, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985), held that testimony may be anticipated for the purposes of reference in opening statements so long as counsel has a good faith belief such testimony will be produced at trial. The burden of showing bad faith is on the defendant. State v. Parker, 74 Wn.2d 269, 274-75, 444 P.2d 796 (1968).

      4. Improper Opening Statement Areas.

        a. Inflammatory Remarks. The purpose of the prosecutor's opening statement is to outline the material evidence the State intends to introduce. Argument and inflammatory remarks have no place in the opening statement. 2 L. Orland, Washington Practice § 213 (3d ed. 1972).

        b. Prosecutorial Testimony. It was improper for the prosecutor to present an opening statement which was so phrased as to present a narrative of the alleged crime in the form similar to testimony of the prosecutor, and not as an outline of facts which would be proven, for the prosecutor was not testifying under oath. State v. Torres, 16 Wn. App. 254, 554 P.2d 1069 (1976). It is also improper for the prosecutor to attempt to influence the jury with the prestige of his office. State v. Jacobsen, 74 Wn.2d 36, 442 P.2d 629 (1968).

        c. Inadmissible Other Charges. A prosecutor's statement in opening remarks which indicates that the accused could have been charged with other offenses constitutes improper conduct. State v. Torres, 16 Wn. App. 254, 554 P.2d 1069 (1976).

        d. Evidence of Prior Criminal Records. The prosecutor cannot declare in opening statement that evidence will show that the defendant has a prior record. State v. Torres, 16 Wn. App. 254, 554 P.2d 1069 (1976).

        e. Anticipation and Rebuttal of Defense Theories. The prosecutor may not, in opening statements, state what he or she thinks the defense theory will be, or tell jurors what he or she expects to offer in rebuttal. R. Ferguson, Washington Criminal Practice and Procedure, § 3704 (1984).

    D.   Presentation of Evidence.

      1. ABA Standards - Evidence.

      Standard 3-5.6 - Presentation of Evidence. It is unprofessional for a prosecutor knowingly to offer unfair or false evidence, or knowingly to offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury. ABA Standards of Criminal Justice, Standard 3-5.6.

      Standard 3-5.7 - Examination of Witnesses. The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy and privileges of the witness. A prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking. ABA Standards of Criminal Justice, Standard 3-5.7.

      Standard 3-5.9 - Facts Outside the Record. The prosecutor should not intentionally refer to or argue on the basis of facts outside the record whether at trial or on appeal, unless such facts are matters of common public knowledge based on ordinary human experience or matters of which the court may take judicial notice. ABA Standards of Criminal Justice, Standard 3-5.9.

      2. References to Facts - Matters in Evidence. Prosecutors have a responsibility to keep their questions and comments to facts and matters in evidence. References to matters outside the evidence of the case are improper. State v. Jones, 71 Wn. App. 798, 863 P.2d 85, reconsideration denied, 124 Wn.2d 1018, 881 P.2d 254 (1993).

      3. Improper Evidentiary Areas.

        a. Factual Questions - Trial Fairness. The prosecutor is obligated to ask questions for which there is a factual basis. Foster v. Barbour, 613 F.2d 59, 60 (4th Cir. 1980).

        b. Character Evidence to Prove Guilt. Under Rule of Evidence 404, evidence of other crimes, wrongs, or acts is inadmissible to prove character and show action in conformity therewith. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). However, under ER 404(b) exceptions, prior bad acts may be admissible for other purposes.

        c. Improper Questions about Convictions. Questioning a defense witness about prior convictions that exceeds the bounds of ER 609 is improper. State v. Copeland, 130 Wn.2d 244, 922 P.2d 1304 (1996).

        d. Bolster Credibility of Witness Prior to Attack. It is improper to bolster the credibility of a witness whose credibility has not been attacked. Evidence intended to fortify or corroborate the credibility of a witness is admissible only after the credibility of the witness has been put at issue by an attack from the opposing party. State v. Borgeois, 82 Wn. App. 314, 917 P.2d 1101 (1996).

        e. Persistent or Excessive Use of Leading Questions. The use of extended unsworn remarks attributed to a prosecution witness which were allegedly recorded in an unverified document and which inculpate the defendant was condemned as cloaking potentially self-serving accounts of a witness's statements with dignity and credibility of the prosecutor's office, and increasing the probability that the jury will consider the statements as substantive evidence, despite any limiting instruction to the contrary. United States v. Shoupe, 548 F.2d 636, 641 (6th Cir. 1977).

        f. Privilege Against Self-Incrimination. A prosecutor is prohibited from calling a witness, knowing that the witness will invoke the privilege against self incrimination, for the purpose of having the jury see the witness exercise his constitutional right. United States v. Tucker, 267 F.2d 212 (3rd Cir. 1959). It is also error for the prosecutor to call a codefendant, knowing that he will invoke the privilege. State v. Smith, 74 Wn.2d 744, 758, 446 P.2d 571 (1968).

        g. Disobedience to Rulings of the Court. In State v. Tweedy, 165 Wash. 281, 288, 5 P.2d 335 (1931), in which the court ruled that certain testimony was inadmissible and where the prosecutor continued to seek introduction of that testimony, the court held the conduct was prejudicial, and that the injury or harm was not cured even though the testimony was stricken by the court and the jury instructed to disregard it.

        h. Post-Arrest Silence - with or without Miranda Warnings. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court held that use of a defendant's silence after receiving Miranda warnings usually violates the defendant's due process rights.

      4.  Permissible Evidentiary Areas.

        a. Invited Questions. Where the prosecutor's comments and questions of a state witness on redirect examination concerning her taking a polygraph test were invited by questioning from the defense, they were proper. State v. Anderson, 41 Wn. App. 85, 702 P.2d 481 (1985).

        b. Warning of Potential Liabilities. Prosecutorial intimidation to prevent a defense witness from testifying for the defense is misconduct which is a denial of the right to compulsory process, and hence due process and normally will warrant dismissal. State v. Carlisle, 73 Wn. App. 678, 681, 871 P.2d 174 (1994). However, the court found no constitutional violation where the prosecutor simply provides the witness with a truthful warning. United States v. Jackson, 935 F.2d 832, 847 (1991).

        c. Prior Bad Acts - ER 404(b). Under ER 404(b), character evidence is admissible for other purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." State v. Grant, 83 Wn. App. 98, 104, 920 P.2d 609 (1996). The 404(b) list of other purposes for which evidence of a defendant's prior misconduct may be introduced is not exclusive. State v. Lane, 125 Wn.2d 825, 831, 889 P.2d 929 (1995).

        d. Suppressed Evidence Allowed for Impeachment. Defendant's statement taken in violation of Miranda but nevertheless voluntary may be used for impeachment. State v. Brown, 113 Wn.2d 520, 556, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1990). A defendant does not have the right to lie under oath at a trial, and voluntary statements suppressed under the provisions of either the Fourth Amendment of the U. S. Constitution, or Article I, Section 7 of the Washington State Constitution may be used for impeachment purposes.

        Also, illegally obtained physical evidence, which is inadmissible on the government's case in chief as substantive evidence of guilt, is nevertheless admissible for purposes of impeachment. State v. Greve, 67 Wash.App. 166, 834 P.2d 656 (1992), review denied, 121 Wn.2d 1005, 848 P.2d 1263 (1993).

        e. Post-Arrest Silence as Impeachment. In Fletcher, the court held that a defendant's post-arrest silence could be used for impeachment when no Miranda warnings were given. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). [Note: State v. Davis, 38 Wn. App. 600, 686 P.2d 1143 (1984), declined to follow Fletcher v. Weir, because (1) limiting the exclusion of post-arrest silence to instances where Miranda warnings are given would penalize the knowledgeable defendant who has not been advised of his rights; and (2) such a rule also has the potential to discourage the reading of Miranda warnings.]

    E.   Closing Arguments.

      1. ABA Standards.

      3-5.8 Arguments to the Jury. The prosecutor may argue all reasonable inferences from the evidence.

      However, it is unprofessional conduct for the prosecutor to intentionally mislead the jury, or to express a personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.

      A prosecutor is not to use arguments calculated to inflame passion or prejudice of the jury.

      ABA Standards of Criminal Justice, Standard 3-5.8.

      2. Closing Argument Generally. During closing argument a prosecutor may state the law as set forth by the court in the instructions. The prosecutor has wide latitude to argue the facts in evidence and reasonable inferences therefrom. State v. Mak, 105 Wn.2d 692, 698, 718 P.2d 407 (1986).

      3. Improper Closing Argument Areas.

        a. Comment on Exercise of Privilege or Right. Prosecutors may not comment on the defendant's exercise of a privilege or constitutional right.

          i. Marital Privilege. It is improper for a prosecutor to make a reference to a defendant's exercise of or failure to waive the husband-wife privilege. State v. Charlton, 90 Wn.2d 657, 585 P.2d 142 (1978).

          ii. Right to Counsel. The prosecutor may not comment that the defendant consulted with his attorney soon after the crime and that such consultation was not the act of an innocent person. United States ex rel Macon v. Yeager, 476 F. 2d 613 (3rd Cir. 1973), cert. denied, 414 U.S. 855, 38 L. Ed. 2d 104, 94 S. Ct. 154 (1973).

          iii. Right Against Self Incrimination. It was improper for the prosecutor to say "[i]f you got a story and you're innocent, you tell the cops." State v. Belgarde, 110 Wn.2d 504, 510, 755 P.2d 174 (1988), (improper comment on the defendant's right to remain silent). Similarly, in State v. James, 63 Wn.2d 71, 385 P.2d 558 (1963), it was improper for the prosecutor to say you prove what happened.

          iv. Right to Post and Pre-Arrest Silence. As the court noted in State v. Easter, 130 Wn.2d 228, 236, 922 P.2d 1285 (1996), "[c]ourts have generally treated comments on post-arrest silence as a violation of a defendant's right to due process because the warnings under Miranda constitute an "implicit assurance" to the defendant that silence in the face of the State's accusations carries no penalty." The court further commented that "the use of silence at the time of arrest and after the Miranda warnings is fundamentally unfair and violates due process," citing Brecht v. Abrahamson, 507 U.S. 619, 628, 113 S.Ct. 1710, 1716-17, 123 L.Ed.2d 353 (1993). The prosecution also may not use pre-arrest silence in argument or in its case in chief as substantive evidence of a defendant's guilt. State v. Easter, 130 Wn.2d at 241.

          v. Right to Be Present at Trial. It is improper for a prosecutor to comment on a defendant's exercise of his/her right to a trial, or to argue that the defendant was the only witness who had been in the courtroom during the entire case so he could tailor his story to fit the testimony of other witnesses. State v. Johnson, 80 Wn. App. 337, 908 P.2d 900 (1996).

          vi. Right to Confrontation. In Dyson v. United States, 418 A.2d 127, 131 (D.C. App. 1980), the District of Columbia Court of Appeals concluded that prosecutorial comment on the defendant's right of confrontation constituted prosecutorial misconduct. In closing argument, the prosecutor commented on the presence of the defendant during the testimony of adverse witnesses and the delay of the defendant's own testimony until all other witnesses had taken the stand. In Sherrod v. United States, 478 A.2d 644, 654 (D.C. App.1984), the D.C. Court of Appeals extended Dyson to cross-examination.

        b.  Prosecutor Opinion. The prosecutor should not state his personal belief or opinion in the defendant's guilt. In State v. Sargent, 40 Wn. App. 340, 698 P.2d 598 (1985), it was improper for a prosecutor to express a personal belief in vouching for the credibility of a witness.

        In State v. Traweek, 43 Wn. App. 99, 715 P.2d 1148 (1986), the prosecutor's remark in closing argument that the prosecutor knew that the defendants had committed robbery was unethical and prejudicial.

        The court also found that it was improper for a prosecutor to argue that he never filed an information against a person unless he believed him to be guilty. State v. Susan, 152 Wash. 365, 278 Pac. 149 (1929).

        A statement by counsel clearly expressing a personal belief as to the credibility of the witness or the guilt or innocence of the accused is forbidden. State v. Allen, 57 Wn. App. 134, 788 P.2d 1084 (1990). See also State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956); and State v. Sargent, 40 Wn. App. 340, 698 P.2d 598 (1985).

        c. Argument Not Based on Facts - Law. The prosecutor may not comment on matters outside the evidence. State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984).

        For instance, in State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989), the prosecutor's argument that "legal [insanity] requires that the defendant has lost contact with reality so completely that he is beyond any of the influences of the criminal law," did not misstate the law, but was nonetheless improper as exceeding the court's jury instructions.

        Counsel is not permitted to impart to the jury his or her own personal knowledge about an issue in the case under the guise of either direct or cross-examination if such information is not otherwise admitted into evidence. State v. Denton, 58 Wn. App. 251, 792 P.2d 537 (1990).

        d. Misrepresentation of Jury Role and Burden of Proof. It is misconduct for a prosecutor to argue that, in order to acquit a defendant, the jury must find that the prosecution's witnesses are either lying or mistaken. State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996).

        e. Incorrect/Incomplete Information - Effects of Verdict. Prosecutorial argument that an accused may receive probation (instead of imprisonment) is generally improper. Such comment may distract the jury from its function of determining whether the defendant was guilty or innocent beyond a reasonable doubt by informing them, in substance, that it does not matter if their verdict is wrong because the judge may correct its effect. State v. Torres, 16 Wn. App. 254, 262, 545 P.2d 1069 (1976).

        f. Inflammatory Emotional Remarks. It is improper for the prosecutor's argument to introduce extraneous inflammatory rhetoric, personal opinions, or facts unsupported by the record. State v. Music, 79 Wn.2d 699, 489 P.2d 159 (1971).

          i. Name Calling. The prosecutor's remark in rebuttal that the defense counsel was being paid by the defendant to twist the words of witnesses was improper. State v. Negrete, 72 Wn. App. 62, 863 P.2d 137 (1993), review denied, 123 Wn.2d 1030, 877 P.2d 695 (1994).

          In State v. Wilson, 16 Wn. App. 348, 555 P.2d 1375 (1976), it was improper for the prosecutor to refer to the victim as "that little angel" and to say of the defendant that, "to call him a beast would insult the entire animal kingdom," and "I say that he is not fit to be a member of the human race." It was also improper for a prosecutor to ask a witness to express an opinion as to whether or not a police officer was lying, as it makes it appear that an acquittal would be proper only if the jurors concluded that the officer was deliberately giving false testimony. State v. Casteneda-Perez, 61 Wn. App. 354, 810 P.2d 74 (1991).

          ii. Speculating. It was improper for the prosecutor to inflame the jury by speculating about what could have happened during a robbery. State v. Harvey, 34 Wn. App. 737, 664 P.2d 1281 (1983) ("what could have happened could have been a 'hostage' situation").

          The Washington State Supreme Court held as misconduct the prosecutor's closing remarks which included statements which associated the defendant with an organization of mad men who kill indiscriminately. The court described that as being both inaccurate and not within the record, but also being so flagrantly appealing to passion and prejudice that it necessitated reversal, because no curative instruction could have overcome the prejudice resulting from the improper argument. State v. Belgarde, 110 Wn.2d 504, 755 P.2d 174 (1988).

          iii. "Not Guilty" Would Send a Message. The prosecutor was held to have denied the defendant who was accused of child molestation a fair trial by commenting in closing argument, that a "not guilty" verdict would send a message to children that reporting adults for sexual impropriety was ineffective, as children would not be believed. State v. Powell, 62 Wn. App. 914, 816 P.2d 86, review denied, 118 Wn.2d 1013, 824 P.2d 491 (1991).

          iv. Recital of List of Prominent Murder Victims. It was censurable for the prosecutor in a firearms case to make reference in closing argument and on rebuttal to the firearm murders of prominent persons even though the court held that these comments did not make the trial inherently unfair. United States v. Endicott, 803 F.2d 506 (9th Cir. 1986).

          v. Appeals for Sympathy. Appeals to jury sympathy and compassion have likewise been subject of misconduct complaints. In State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990), the defendant complained because the prosecutor apologized to the victim's mother for having mispronounced the victim's name. The defendant's argument was that the apology focused attention on the victim's mother in an effort to create sympathy. In that case, however, the court ruled that since the defendant neither objected nor offered curative instruction, his objection was waived.

      4.   Permissible Closing Argument Areas.

        a. Comment on Defendant's Silence - Exception. As an exception to the proposition that comment on post-arrest silence is improper, it is permissible when the defendant at trial insists that he did provide his explanation to the police. Doyle v. Ohio, 426 U.S. 610, 619 n. 11, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

        b. Facts That Arouse Indignation. In State v. Fleetwood, 75 Wn.2d 80, 448 P.2d 502 (1968), the court held that a prosecutor is not muted just because the acts committed arouse natural indignation. In that case, a prosecution for robbery and assault of an 87-year-old woman, the prosecutor's argument that the defendant had stated that he was a member of the FBI, and that the victim of the assault was an 87-year-old woman, did not so inflame the jury that a fair trial was impossible.

        c. Emotional Event. As pointed out by the court in State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989), sometimes the very nature of the crime renders its narration an emotional event. Rice does, however, point out that "[a]lthough reference to the heinous nature of a crime and its affect on the victims can be proper argument, the prosecutor's duty is to insure a verdict free of prejudice and based on reason."

        d. Provoked Prosecutor Statements. In State v. Dennison, 72 Wn.2d 842, 435 P.2d 526 (1967), the court indicated that even where the remarks of a prosecutor would otherwise be improper, grounds for reversal were lacking where the remarks were invited, provoked or occasioned by the defense counsel, unless remarks went beyond pertinent reply and brought before the jury extraneous matters not in the record or were so prejudicial that instruction would not cure them.

        e. Attack On Credibility. Although it is not proper for the prosecutor, in arguing before the jury, to insert his or her personal belief, it is proper for him or her to comment on the credibility of witnesses or the inferences that may be drawn from the evidence. State v. Walton, 5 Wn. App. 150, 486 P.2d 1118 (1971).

        Even though the prosecutor should not imply that the jury should infer guilt from a defendant's prior convictions, the prosecutor may address prior convictions before the jury to attack the credibility of a defendant who testified. State v. Harrison, 72 Wn.2d 737, 435 P.2d 547 (1967).

        Once the defendant elects to testify on his own behalf, he places himself in the same footing as any other witness, and comment on his testimony and credibility may be made by the prosecution in closing argument. State v. Scott, 58 Wn. App. 50, 791 P.2d 559 (1990).

        f. Lack of Corroboration for an Alibi. The prosecutor may comment on the fact that a potential witness did not appear to corroborate an alibi. State v. Bourgeois, 82 Wn. App. 314, 917 P.2d 1101 (1996).

        g. Defendant Tailored Testimony. State v. Smith, 82 Wn. App. at 335, 917 P.2d 1108 (1996), held that so long as the comment did not focus on the right to be present at trial, it was not improper for a prosecutor to question the defendant about his ability to see all the photographs, read all the discovery, and hear all the other testimony before he crafted his testimony to fit with the rest of the evidence.

    F.   Burdens and Consequences of Misconduct.

    The court can impose several remedies when the prosecutor engages in misconduct, depending on the degree of misconduct and the circumstances.

      1. Admonishment and Instruction. When it is clear to the court that prosecutorial misconduct is occurring and the defense makes no objection, the court must evaluate whether the failure to object is strategic, incompetence or the result of "the attorney's fear that an objection would only focus attention on an aspect of the case unfairly prejudicial to his client." Where this is manifestly the case, the judge may choose "to interrupt, admonish the offender and instruct the jury to disregard the improper argument." United States v. Sawyer, 347 F.2d 372, 374 (4th Cir. 1965). A different approach is "to call the prosecutor to the bench, admonish . . . and ask defense counsel if he wishes an instruction." Gershman, Prosecutorial Misconduct, § 13.2(b)(1) (1994). A third approach is an order in limine against specific misconduct that the trial court may be able to anticipate.

      2. Censure. Prosecutor's comments that may not constitute conduct that makes the trial inherently unfair may nevertheless be censurable. United States v. Endicott, 803 F.2d 506 (9th Cir. 1986).

      3. Contempt Sanctions. Misconduct that occurs in the face of a warning is a violation that the trial court may address with contempt sanctions. State v. Neidigh, 78 Wn. App. 71, 895 P.2d 423 (1985). See also RCW 7.21.050. The virtue of contempt as a sanction is that it "can be easily administered, interferes only marginally with the criminal proceeding, punishes the prosecutor rather than society, and can be adjusted according to the severity of the misconduct." Gershman, Prosecutorial Misconduct, § 13.3 (1994). A further virtue is that the appellate court then has the opportunity to affirm the application of an effective remedy without circumventing or altering the harmless error inquiry. State v. Neidigh, 78 Wn. App. 71, 80, 895 P.2d 423 (1995).

      4. No Prejudice - No Reversal. Improper prosecutorial conduct is not grounds for reversing a conviction where the conduct did not influence the jury's verdict. State v. Brown, 76 Wn.2d 352, 458 P.2d 165 (1969).

        a. Context. Whether an improper statement in closing argument prejudiced the defendant depends upon the context in which it was used and the effect it was likely to have on the jury. State v. Rose, 62 Wn.2d 309, 382 P.2d 513 (1963). In State v. Day, 51 Wn. App. 544, 754 P.2d 1021 (1988), the court found the prosecutor's calling the defendant's testimony "a pack of lies" not to be improper when taken in context.

        b. Trial Court Discretion. In State v. Guizzotti, 60 Wn. App. 289, 803 P.2d 808 (1991), the court noted that whether improper prosecutorial argument necessitates mistrial is within the discretion of the trial court.

        c. Objection - Curative Instruction. In considering whether the misconduct requires reversal, the court will look to see whether there was an objection by the defense and whether a request for a curative instruction was made. State v. Barrow, 60 Wn. App. 869, 874-75, 809 P.2d 209, review denied, 118 Wn.2d 1007, 822 P.2d 288 (1991).

        In egregious cases, even with a curative instruction, the court may order a mistrial. In State v. Copeland, 130 Wn.2d 244, 922 P.2d 1304 (1996), the court held that the giving of a curative instruction does not end the court's inquiry. "If misconduct is so flagrant that no instruction can cure it, there is, in effect, a mistrial and a new trial is the only and mandatory remedy." State v. Belgarde, 110 Wn.2d 504, 516-17, 755 P.2d 174 (1988) (quoting State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956)).

        d. Burden on Defense. A defendant seeking a mistrial based on improper prosecutorial argument has the burden of showing that the prosecutor's remarks were improper and that a substantial likelihood exists that the misconduct affected the jury's verdict thereby depriving the defendant of a fair trial. The appellate courts review the trial court's determination only for abuse of discretion. State v. Guizzotti, 60 Wn. App. 289, 803 P.2d 808 (1991).

        e. Prejudice Must Be Clear, Inference vs. Opinion. The court, in State v. Papadopoulos, 34 Wn. App. 397, 662 P.2d 59 (1983), indicated that prejudicial error will not occur unless it is clear and unmistakable that counsel is not arguing an inference from the evidence but is expressing a personal opinion. See also State v. Swan, 114 Wn.2d 613, 790 P.2d 610 (1990).

      5.  Reverse the Conviction if Misconduct Too Flagrant. Prosecutorial misconduct will require reversal of a conviction even though no curative instruction was requested only if the conduct is so flagrant and ill-intended that the error can not be deemed to be harmless. State v. Charlton, 90 Wn.2d 657, 585 P.2d 142 (1978).

      If an admonition could not have neutralized the prejudice of misconduct, even where there was no objection, and there is a substantial likelihood that the alleged prosecutorial misconduct affected the verdict, the conviction should be reversed. State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994).

      6. Dismissal under CrRLJ 8.3(b). Rule 8.3(b) of the Criminal Rules for Courts of Limited Jurisdiction (CrRLJ) authorizes a trial court to dismiss any criminal prosecution "on its own motion in furtherance of justice." This rule parrots the language of the Superior Court Criminal Rule (CrR) 8.3 (b).

      The purpose of CrR 8.3(b) is to insure that an accused person is fairly treated. State v. Whitney, 96 Wn.2d 578, 67 P.2d 956 (1981).

        a. Discretionary - Manifest Abuse of Discretion. The power of the court to dismiss a charge under CrRLJ 8.3(b) is discretionary and is reviewable only for manifest abuse of discretion. State v. Dailey, 93 Wn.2d 454, 610 P.2d 357 (1980). However, a dismissal of a prosecution in the interests of justice constitutes an abuse of discretion if there is no evidence of arbitrary prosecutorial action, governmental misconduct, or mismanagement of the case. State v. Underwood, 33 Wn. App. 833, 658 P.2d 50 (1983).

        Discretion is abused when the trial court's decision is manifestly unreasonable or is exercised on untenable grounds for untenable reasons. State v. Blackwell, 120 Wn.2d 822, 830 P.2d 1017 (1993).

        b. Reasons in Written Order. The court must set forth its reasons in a written order when dismissing a criminal prosecution under CrR 8.3(b), although the court need not enter any findings of fact. State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976).

        c. Rights of the Accused Must Be Prejudiced. Absent a finding of prejudice to the defendant, dismissal of criminal charges is not warranted. State v. Koerber, 85 Wn. App. 1, 931 P.2d 904 (1996).

        d. Extraordinary Remedy. According to R. Ferguson, Washington Criminal Practice and Procedure, Section 2213 (1984), the grounds which will ordinarily support an order of dismissal pursuant to CrR 8.3(b) are arbitrary action or misconduct by the prosecution, which may include selective prosecution and constitutional violations, failure to comply with discovery rules, and destruction of evidence. Dismissal of criminal charges is an extraordinary remedy for prosecutorial misconduct, and will be granted only when the prejudice to the rights of the accused to a fair trial cannot be remedied by granting a new trial. See also Seattle v. Orwick, 113 Wn.2d 823, 830, 784 P.2d 161 (1989).

        e. Truly Egregious Cases. The trial court's authority to dismiss under CrR 8.3(b) is limited to truly egregious cases of mismanagement or misconduct by the prosecutor, and it does not extend to acts of simple negligence. State v. Duggins, 68 Wn. App. 396, 401, 844 P.2d 441 (1993).

    G.   Liability for Prosecutor Misconduct.

    As noted in Robinson v. Seattle, 119 Wn.2d 34, 68, 830 P.2d 318 (1992), reconsideration denied, quoting from Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 1944, 114 L.Ed.2d 547 (1991), "[i]t was suggested in Donovan [Donovan v. Reinholt, 433 F.2d 738, 744 (9th Cir. Calif. 1970)] that even the city attorney who advises disregard of a court order would be liable rather than immune from suit." Other courts have declined to extend qualified immunity to section 1983 [42 USC Section 1983] defendants by holding that disobedience of a court order was not a discretionary act entitled to immunity. See Front Royal & Warren Cy. Ind. Park Corp. v. Front Royal, Va., 708 F. Supp. 1477 (W.D.Va. 1989).

    Generally, the shield of qualified immunity from 42 USC Section 1983 liability does not extend to those officials who knowingly violate law. Robinson v. Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992), reconsideration denied.

      1. Prosecutorial Immunity. As stated by the court in State v. Savage, 127 Wn.2d 434, 450, 899 P.2d 1270 (1995), "[i]n 1966, this court noted that prosecuting attorneys are individually immune, as a matter of public policy, from prosecution for acts done in their official capacity. Creelman v. Svenning, 67 Wn.2d 882, 884, 410 P.2d 606 (1966)." The court held that the public policy which requires quasi-judicial immunity for prosecutors also requires immunity for the state and county for the acts of the prosecutors in their official capacity. Creelman, 67 Wn.2d at 885. The court also held that the statutory abrogation of sovereign immunity (RCW 4.92.090) did not constitute a bar to extension of prosecutorial immunity.

        a. Absolute Immunity. The Supreme Court has granted prosecutors absolute immunity for "initiating a prosecution and in presenting the State's case." Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct 984, 995, 47 L.Ed.2d 128 (1976).

        b. Qualified Immunity. As noted in Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct 984, 995, 47 L.Ed.2d 128 (1976), the court left standing appellate case law holding that absolute immunity did not apply to a prosecutor's investigative function. In Robinson v. Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992), reconsideration denied, relying on Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), the court said "[i]t is incongruous to allow prosecutors to be absolutely immune from liability for giving advice to the police, but to allow police officers only qualified immunity for following the advice."

        In Babcock v. State, 116 Wn.2d 596, 606, 618, 809 P.2d 143 (1991), the court held that public officials or employees involved in investigative work were entitled to a qualified immunity. See also Sintra, Inc. v. Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992).

        c. Qualified - Absolute Immunity Distinction. As noted in Burns v. Reed, 500 U.S. 478, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991), the prosecutor"s participation in a probable cause hearing in was held absolutely immune. The distinction is based on the function the prosecutor performs.

        d. Prosecutor Statement in Certificate of Probable Cause. In the recent U. S. Supreme Court case, Kalina v. Fletcher, ____ U.S. ____, 118 S.Ct. 502, ____ L.Ed.2d ____ (1997), the court held that absolute prosecutorial immunity does not protect a prosecutor who allegedly made false statements of fact in an affidavit supporting an application for an arrest warrant. The prosecutor has qualified immunity. The court held that "[t]estifying about facts is the function of the witness, not of the lawyer. No matter how brief or succinct it may be, the evidentiary component of an application for an arrest warrant is a distinct and essential predicate for a finding of probable cause. Even when the person who makes the constitutionally required Oath or affirmation is a [prosecutor], the only function that [the prosecutor] performs is that of a witness." See supra Chapter 6, Section II.A.

        e. Investigative Function. Although the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 431, 96 S.Ct 984, 995, 47 L.Ed.2d 128 (1976), upheld absolute immunity for prosecutors initiating prosecution and in presenting the prosecutor's case, it purposefully left standing appellate case law holding that qualified, not absolute immunity, applied to a prosecutor's investigative function.

    H.   Sentencing.

      1. ABA Standards for Sentencing.

      Standard 3-6.1 Role in Sentencing. The prosecutor should make fairness, not the severity of sentences, the index of his or her effectiveness. ABA Standards of Criminal Justice, Standard 3-6.1.

      Standard 3-6.2 Information Relevant to Sentencing. The prosecutor should assist the court in basing its sentence on complete, relevant and accurate information. The prosecutor should disclose unprivileged mitigating information to the court and to the defense. ABA Standards of Criminal Justice, Standard 3-6.2.

      2. Prosecutor's Role, Sound Advice with Advocacy. United States v. Brown, 500 F.2d 375, 377 (4th Cir.1974), describes the prosecutor's role in sentencing as reasonably being expected to be the sound advice, expressed with some degree of advocacy, of a government officer familiar both with the defendant and with his record and cognizant of his public duty as a prosecutor.

      3. Prosecutor's Obligation in Making Recommendation. In making a promised sentencing recommendation pursuant to an agreement, the prosecutor may not engage in conduct which suggests terms contrary to those agreed upon under plea agreement. However, the prosecution fulfilled its obligation by simply making the promised sentencing recommendation. The prosecutor is not otherwise obligated to affirmatively advocate for the sentence recommendation. State v. Coppin, 57 Wn. App. 866, 791 P.2d 228 (1990).

      However, where the trial court solicited the recommendation of the police officer (asking for a bigger penalty than agreed to by prosecutor and defendant), it was error for the court to refuse the request by the defense counsel that the prosecutor be permitted to address the court in support of the agreed recommendation. State v. Peterson, 29 Wn. App. 655, 630 P.2d 480 (1981).

      4. Sentencing Based on Materially False Information. In United States v. Hanna, 49 F.3d 572 (9th Cir. Wash. 1995), the court held that the Constitutional guarantee of due process is fully applicable at sentencing, and, thus, a defendant's due process rights would be violated where materially false or unreliable information were used at sentencing. In such a case, vacation of the sentence is required.

    I.  Mistrials.

      1. Mistrials Where Retrial Barred.

        a. Mistrial Caused by Misconduct. The general rule is that, where the defendant moves for a mistrial, the double jeopardy clause does not bar a retrial. State v. Lewis, 78 Wn. App. 739, 745, 898 P.2d 874 (1995), citing Oregon v. Kennedy, 456 U.S. 667, 672-073, 102 S.Ct. 2083, 2087-88, 72 L.Ed.2d 416 (1982). However, as noted in State v. Cochran, 51 Wn. App. 116, 122, 752 P.2d 1194, review denied, 110 Wn.2d 1017 (1988), citing State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983), reprosecution may be barred where the mistrial is caused by prejudicial, official misconduct, whether caused intentionally or by indifference in the results.

        b. Prosecutor Negligence. Where a mistrial was declared because the prosecutor was grossly negligent in reading the defendant's grand jury testimony to jury, retrial after the mistrial would have been double jeopardy. United States v. Martin, 561 F.2d 135, 21 CrL 2526 (ith Cir. 1997). In Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed 2d 100 (1963), the court held that double jeopardy barred retrial where, after the jury was sworn, the prosecutor moved for discharge of the jury on the ground that a key prosecution witness was not present who the prosecutor knew could not be found and had not been served with a subpoena.

    J.   Appeals.

      1. Prosecutor's Appellate Role. As noted by Joseph F. Lawless, Jr. in PROSECUTORIAL MISCONDUCT Law-Procedure-Forms (1985), there are no ethical standards which specifically address the prosecutor as appellate counsel. In that regard, the author suggests that most ethical considerations involving appellate work by prosecutors can be handled similarly to the way other areas of prosecutorial misconduct are handled. However, he does identify areas where prosecutors may be engaged in misconduct in handling appeals. These include vindictive pursuit of an appeal and the addition of facts to the appeal which are not included in the record.

      2. Retrial after Appeal - Exception for Misconduct. In State v. Cochran, 51 Wn. App. 116, 751 P.2d 1194, review denied, 110 Wn.2d 1017 (1988), the court stated that where a conviction is reversed on appeal, reprosecution is generally permissible; however, a bar against retrial is appropriate where prosecutorial misconduct is intended to provoke a request for mistrial, citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). Although this rule generally applies to mistrials, this exception should apply with equal weight to appellate reversals resulting from prosecutorial misconduct. See United States v. Singer, 785 F.2d 228, 239 (8th Cir. 1986), cert. denied, 479 U.S. 833, 107 S.Ct. 273, 93 L.Ed.2d 249 (1986).

IV.   DISSEMINATION OF INFORMATION IN THE PROSECUTOR'S POSSESSION

    A. Introduction. As part of their duties within the criminal justice system, criminal prosecutors come into possession of many different types of information about people. Some of those people are former, current, or potential future criminal defendants, victims, or witnesses. Although that information is not necessarily subject to the attorney-client privilege, it is quite often private or sensitive in nature. Thus, while traditional ethical considerations of privileged communications may not apply, there are other legal considerations which are at least tangentially ethics-related.

    B. Disclosure as Part of Criminal Discovery. Disclosure to defense counsel as part of the criminal discovery process is governed by CrR 4.7 and CrRLJ 4.7.

    C. Disclosure Other than as Part of Criminal Discovery. Disclosure of information, other than through the criminal discovery process, is governed by three considerations: the public disclosure law; the Washington State Criminal Records Privacy Act; and the rights of victims of domestic violence.

      1. Public Disclosure Law. For disclosure requirements and limitations under the public disclosure laws, see supra the discussion at Chapter 2, Section IV. Among the limits to the disclosure requirements for public records, RCW 42.17.250, et seq., which are especially applicable to criminal cases:

        a. Intelligence Gathering. The disclosure requirements may be limited regarding certain intelligence information gathered by law enforcement, under RCW 42.17.310(d).

        b. Identity of Crime Victims or Witnesses. The disclosure requirements may be limited regarding the identity of crime victims or witnesses under certain circumstances, under RCW 42.17.310(e).

        c. Washington State Criminal Records Privacy Act. The disclosure requirements may be limited by the application of the Washington State Criminal Records Privacy Act [hereinafter, "CRPA"], found in Chapter 10.97 RCW. For example, public records need not be disclosed under RCW 42.17.250, et seq., if disclosure is exempt or prohibited under another statute, which could include the CRPA. See RCW 42.17.260(1). Also, the disclosure limitations under RCW 42.17.310 neither "affect a positive duty of an agency to disclose or a positive duty to withhold information which duty to disclose or withhold is contained in any other law." RCW 42.17.311.

    D.   Disclosure Limitations under the CRPA. For disclosure issues relating to criminal history information (which might, under certain circumstances, affect your response to a public records request under Chapter 42.17 RCW), you should review the CRPA in its entirety. Chapter 10.97 RCW. You should analyze any such request under not only Chapter 42.17 RCW and the CRPA, but also any other privacy laws which might apply.

      1. Definitions. The relevant definitions under the CRPA are contained in RCW 10.97.030. While all of the definitions are important in applying the CRPA, you might want to pay special attention to the definitions of "criminal history record information," "nonconviction data," and "conviction data." Also, be sure to review RCW 10.97.030(5) for the definition of "criminal justice agency," which should include most, if not all, criminal prosecutors' offices.

      Practice Tip: You should begin any CRPA analysis by determining which portions of the record are criminal history record information, and therefore subject to the CRPA, and which are not.

      2. Conviction Data and Pending Cases. Generally speaking, conviction data and criminal history record information regarding pending cases may be disseminated without restriction. RCW 10.97.050(1), (2).

      Practice Tip: Bear in mind that a record may contain both conviction and nonconviction data. If so, it is likely that only a portion of the record is subject to dissemination under the CRPA. For example, suppose a police report in a pending assault case recites that the suspect has five prior arrests for residential burglary, but has never been convicted of that crime. That portion of the report relating to the pending assault charge may be disseminated under the CRPA; that portion relating to the arrests which did not lead to convictions may not. If the report does not say whether the arrests led to convictions, you would be well advised to try to find out the answer as part of your analysis.

      Practice Tip: If a defendant successfully completes a deferred sentence and the Court dismisses the charge, does the criminal history record become nonconviction data? According to a 1997 opinion of the Attorney General, the record retains its status as conviction data. See AGO 1997 No. 1. See WA Ops. Atty Gen. 1997-1.

      Practice Issue: What about the status of a deferred prosecution which has been granted under Chapter 10.05 RCW? The answer probably depends upon the status of the case at the time of the request. Arguably, a deferred prosecution petition which is successfully completed is nonconviction data, since the case has been dismissed. But if the petition can be used to enhance a DUI sentence (see RCW 46.61.5055), then arguably the dismissal is still a disposition adverse to the subject. On the other hand, one could argue that, during the two-year period that the petition is pending, it is "currently being processed" by the criminal justice system, and is therefore a pending matter. See RCW 10.97.030(2)-(3) for definitions of conviction and nonconviction data. There is no simple answer, and you should apply the CRPA separately to each document requested.

          i. While the petition is pending, it should be permissible under the CRPA to disseminate any criminal record history information. That would likely include the police report (or those portions of it which are criminal record history information). As to the petition and the treatment plan, they are not necessarily criminal record history information subject to a CRPA analysis. But whether they are or not, you need to consider any other applicable privacy laws.

          For example, a deferred prosecution petition alleging alcoholism must contain a case history and written assessment prepared by an approved alcoholism treatment program as designated in Chapter 70.96A RCW. See RCW 10.105.020(1). The registration and other records of treatment agencies designated under Chapter 70.96A RCW are confidential, subject to some limited exceptions. RCW 7.96A.150(1). Moreover, the obligations and protections under federal regulations are extended to treatment programs approved under RCW 70.96A.090. See RCW 70.96A.150(3).

          As another example, Chapter 70.02 RCW relates to medical records. If medical records subject to that chapter come into your hands in your capacity as a law enforcement agency (RCW 70.02.050(b)), you have to maintain their security consistent with the other provisions of that statute, and that is on a need-to-know basis. RCW 70.02.050(1), (3). See also 38 U.S.C. § 7332 (confidentiality of alcohol treatment records of the Department of Veteran Affairs).

          ii. Once the defendant has successfully completed the deferred prosecution and the case is dismissed, records regarding the deferred prosecution are, at least arguably, nonconviction data. The case has been dismissed with prejudice, and deferred prosecutions are not listed among the types of dismissals which are considered "dispositions adverse to the subject" within the definition of "conviction data." On the other hand, a deferred prosecution can be used to enhance the mandatory minimum sentence on a DUI committed within five years of the violation date of the deferred prosecution matter. See RCW 46.61.5055. Arguably the dismissal is still a disposition adverse to the subject on that basis.

          iii. If five years have elapsed from the date of the incident which is the subject of the deferred prosecution, the defendant has successfully completed the deferred prosecution, and the court has dismissed the matter, then it is most likely nonconviction data under the CRPA.

      3.   Nonconviction Data and Criminal Justice Agencies. Criminal history record information which includes nonconviction data may be disseminated to a criminal justice agency by another criminal justice agency for a purpose related to the administration of criminal justice. RCW 10.97.050(3).

      Practice Issue: What happens if the civil division of a city attorney's office requests that the criminal division provide a copy of a police report from a previously dismissed case, for purposes of civil litigation? Your criminal division would be well advised to decline the request. Even if one assumes that the city attorney's office, as a whole, is a criminal justice agency, there is a problem. The report is being requested for civil purposes, not for purposes related to the administration of criminal justice. RCW 10.97.050(3) does not appear to permit dissemination in this situation.

      4. Nonconviction Data under Other Limited Circumstances. There are other limited circumstances under which criminal history record information which includes nonconviction data may be disseminated.

        a. General Examples. These include dissemination to implement a law or court rule, pursuant to a contract for the provision of services related to the administration of criminal justice, and pursuant to a research agreement which meets the requirements of the CRPA. See RCW 10.97.050(4)-(6).

        Practice Tip: For your own protection, you would be well advised to prepare affidavit or declaration forms for requestors to sign when requesting nonconviction data under one or more of these limited circumstances. The specific form should recite the requirements and any use limitations spelled out in the relevant CRPA section.

      5.  Discretionary Disclosure to Crime Victims. A criminal justice agency may, in its discretion, disclose to the victim of a crime the suspect's identity, along with "such information as the agency reasonably believes may be of assistance to the victim in obtaining civil redress." RCW 10.97.070(1).

        a. General Requirements. Note that this "victim exception" requires that the victim must have suffered physical loss, damage, or "injury compensable through civil action." Id. Disclosure is discretionary, and may be given without regard to whether the suspect is an adult or juvenile, and without regard to whether charges were filed, declined, or dismissed. Id.

      Practice Issue: What if the victim seeks the information to obtain an anti-harassment order against the defendant? Does behavior which gives rise to potential injunctive relief constitute "injury compensable through civil action?" The CRPA provides no clear answer. If you take a more expansive reading of the CRPA and plan to provide information based on the circumstances of a particular case, you might want to have the requestor confirm in writing the information which supports your conclusion. Because disclosure under this exception is discretionary, you may want to take the more conservative approach and deny the request.

      Practice Issue: What if the victim of a domestic violence assault wants to use the information as part of a civil child custody action? Is a child custody action a form of civil redress for a domestic assault? Does it matter whether the children actually witnessed the assault? The answer is the same as in the practice issue above.

      6.  Updating Information Before Dissemination. The requirements for updating information prior to dissemination, and for keeping track of information which is disseminated, are set out in the CRPA at RCW 10.97.040 and 10.97.050(7).

    E.  Domestic Violence Victims. Victims of domestic violence have the right to be apprised of the filing or the declining of domestic violence charges. See generally Chapter 10.99 RCW.

      1. Statutory Requirements. RCW 10.99.060 provides that:

      The public attorney responsible for making the decision whether or not to prosecute shall advise the victim of that decision within five days, and, prior to making that decision shall advise the victim, upon the victim's request, of the status of the case. Notification to the victim that charges will not be filed shall include a description of the procedures available to the victim in that jurisdiction to initiate a criminal proceeding.

      2. Victim Complaint Procedures. For procedures relating to filing misdemeanor or gross misdemeanor charges by a citizen, see CrRLJ 2.1(c).

      3. Application to Municipal Prosecutors. In light of the broad statement on legislative intent, found in RCW 10.99.010, and the definition of domestic violence, found in RCW 10.99.020, it seems clear that the victim contact requirement is intended to apply to municipal and county prosecutors alike.

V.   THE PROSECUTOR OR DEFENSE ATTORNEY AS A WITNESS

The provisions of RPC 3.7 apply equally to criminal and civil cases. See supra the discussion of this rule at Chapter 3, Section III.

    A. Attorney Called by Opposing Party. RPC 3.7(c) permits a lawyer to act as an advocate at trial if the lawyer is called as a witness by the opposing party and the court rules that the lawyer may continue to act as an advocate.

    Practice Tip: Avoid the problem in the first place by having a non-attorney present with you when you interview witnesses. That way, the defense can subpoena that person instead of you. If you are unable to do so, and receive a subpoena, consider offering to stipulate to the testimony your opponent wishes to elicit. Even if your opponent declines the stipulation, you will be in a better position to argue to the court that you should be allowed to continue to act as trial counsel.

VI.  CONFLICT OF INTEREST

    A. RPC 1.7 - Conflict of Interest; General Rule.

      1. Summary of the Rule. RPC 1.7 encourages client loyalty by precluding a lawyer from representing clients with adverse interests unless both clients consent. The rule also precludes representation without full disclosure and consent if the attorney's own interests or his other duties to another party could conflict with the client's interests. RPC 1.7 also contains a rule for private attorneys representing governmental agencies which provides that the attorney represents the discrete agency or unit unless otherwise provided for. See supra Chapter 3, Section III.A. for a discussion regarding civil issues.

      2. Application in Criminal Prosecution.

        a. Application of RPC 1.7 is Litigated Most Often in Civil Cases. In criminal cases, most disputes arise under RPC 1.9 as discussed in Chapter 3, Section IV.C.

        b. Defense Attorneys - Conflicts of Interest. In criminal practice, conflicts may arise when public defenders represent clients with potentially competing interests. The public prosecutor needs to be alert to these potential conflicts of interest, and if necessary, move to disqualify the public defender. Failure to have the public defender disqualified might lead to a reversal based on ineffective assistance of counsel.

        c. Two Rules Where Conflict Arises. Two basic rules have emerged from cases where defense attorneys have represented clients with competing interests.

          i. Affirmative Duty to Determine if Conflict Exists. If the trial court knows or reasonably should know of a potential conflict of interest, then it has an affirmative duty to determine whether a conflict actually exists. If the court fails to inquire, then reversal is required.

          ii. Reversal Required if Conflict Adversely Affects Case. Reversal is always required where a defendant shows that "an actual conflict of interest adversely affected his lawyer's performance." In both situations the defendant need not show that he was prejudiced. In re Richardson, 100 Wn.2d. 669, 677, 675 P.2d 209 (1983) (citations omitted).

        d.  No Civil Representation by Prosecutor. To comply with RPC 1.7, a prosecutor should not undertake civil representation of a victim after having prosecuted the accused; nor representation of any party in the course of the attorney's private practice which could conflict with his or her public practice. WSBA Formal Ethics Opinions, Opin. No. 1 (1950); WSBA Formal Ethics Opinions, Opin. No. 74 (1960).

        e. Representation Permissible Where No Participation by City Attorney. It is not a violation of RPC 1.7 when city attorneys, their partners or associates represent defendants or juveniles in actions that are not brought or initiated by the City and when the facts are not investigated by representatives of the City employing the City Attorney. WSBA Formal Ethics Opinions, Opin. No. 161 (1975).

      3.  Case Law Summary.

        a. Cases Involving Relatives. A prosecutor's nephew committed the crime of robbery. The nephew sought to have the prosecutor's office disqualified because of their relationship. Nothing in the record indicated a past professional relationship between the nephew and prosecutor, nor participation by the related prosecutor in the current criminal action. The court determined that no rule of professional conduct was implicated. The defendant also raised an "appearance of fairness" challenge. The court concluded the "appearance of fairness doctrine" did not apply, and if it did, it was not violated. State v. Ladenburg, 67 Wn. App. 749, 840 P.2d 228 (1992).

        b. See infra Section VI.C.3.

    B.   RPC 1.8 - Conflict of Interest; Prohibited Transactions; Current Client.

      1. Summary of the Rule. RPC 1.8 restricts dealings with a client which may benefit the lawyer to the disadvantage of the client. This rule complements RPC 1.7 by regulating business transactions between clients and lawyers, giving of gifts, transfer of literary rights, payment for attorney services, family relationships between lawyers to an action, and acquisition of an interest in litigation.

      2. Application in Prosecution Function. To prevent possible reversal on appeal, a prosecutor who is related to a defense attorney must ensure compliance with RPC 1.8 when the defense attorney is representing a client that is being prosecuted by the related prosecutor.

      3. Case Law Summary. There is no case law regarding application of RPC 1.8 in criminal cases. See supra Chapter 3, Section I.B. for a discussion of civil case law.

    C.  RPC 1.9 - Conflict of Interest; Former Client.

      1. Summary of the Rule. RPC 1.9 prevents a lawyer from taking a position that is adverse to his or her former client in the same or a substantially related matter. This prevents a lawyer from "switching sides" and/or using client confidences or secrets to the disadvantage of a former client. The rule ensures that clients can divulge confidences and secrets to their lawyer, knowing those communications may never be used against them.

      2. Application in Criminal Prosecution.

        a. Prosecutors Formerly Defense Attorneys. Prosecutors who have formerly defended must be alert to whether: (1) they had an attorney-client relationship with the defendant, and (2) the matter now pending is the "same or substantially related" matter.

        b. Same or Substantially Related Matters. Matters are "the same or substantially related" if confidential or secret information which has been gained in the former representation could be used adversely to the former client in the pending matter.

      3.  Case Law Summary.

        a. Former Representation. Public Defender Association's former client agreed to testify on behalf of the State in return for a favorable sentencing recommendation. The attorney for the defendant later learned the former client's true identity and discovered the PDA's office had represented this person on a theft charge. The former client knowingly waived the attorney-client privilege and the public defender was not disqualified. According to RPC 1.9(a) and RPC 1.10, a lawyer is not disqualified from representing a client where an adverse witness was represented in a prior action by someone from the same firm, unless: (1) the current action is substantially related to the prior action, (2) the interests of the current and former clients are materially adverse, and (3) the former client has not waived the attorney-client privilege arising from the previous representation. The court also held that information that would be available in discovery or is otherwise a matter of public record is not a "confidence" or "secret." State v. Ramos, 83 Wn. App. 622, 922 P.2d 193 (1996). See also RPC 1.10.

        b. Factors Required for Reversal. Attorney for defendant filed notice of appearance, reviewed the police report, discussed the matter with the defendant's stepfather but did not confer with the defendant prior to substitution of counsel. Attorney was subsequently appointed to represent codefendant with conflicting defense. Both defendants failed to bring the conflict to the court's attention. Both appealed because of trial counsel's earlier representation of codefendant. Although RPC's may have been violated, reversal was not required because there was no evidence that (1) (a) counsel had an actual conflict (b) adversely affecting counsel's performance; or (2) the trial court knew or reasonably should have known of a particular conflict and failed to inquire into whether an actual conflict existed. The presumption of prejudice does not apply to an attorney's conflict of interest arising under RPC 1.9 (a) if the matter is raised for the first time after entry of judgment. In such cases the client must show actual prejudice. State v. White, 80 Wn. App. 406, 907 P.2d 310 (1995), rev. denied, 129 Wn.2d 1012 (1996).

        c. Representation in Unrelated Matters. Public defender sought disqualification because a witness for the prosecution had been represented by the PDA's office on a unrelated matter. RPC 1.9(b) does not disqualify an attorney from representing different clients in matters that are not substantially related absent a showing that the attorney in the present representation likely would use confidences or secrets relating to the former representation to the disadvantage of the former client. State v. Hunsaker, 74 Wn. App. 38, 873 P.2d 540 (1994). See also Teja v. Saran, 68 Wn. App. 793, 846 P.2d 1375 (1993), rev. denied, 122 Wn.2d 1008 (1993).

        d. Former Representation - Substantial Relationship to Present Issue. Defense counsel and another attorney at one time had a partnership and currently have a financial relationship. The other attorney had at one time represented the State's witness in a criminal matter; the defendant's counsel did not participate in that matter. An attorney is not disqualified under the conflict of interest provisions of RPC 1.9 based on the fact that an adverse party or witness is a former client of a former law partner of the attorney when the matters involved in the former representation are not substantially related to any present issue and the attorney acquired no confidences material to the present issue as a result of the former representation. State v. Early, 70 Wn. App. 452, 853 P.2d 964 (1993), rev. denied, 123 Wn.2d 1004 (1994).

        e. Former Representation - Offense Charged. Prosecutor in his public capacity had previously represented the County Auditor's office. The Auditor was charged with multiple crimes. For a conflict of interest to arise under RPC 1.9, the prosecutor must have "previously personally represented or been consulted professionally by an accused with respect to the offense charged" or closely related matters. State v. Greco, 57 Wn. App. 196, 787 P.2d 940 (1990), rev. denied, 114 Wn.2d 1027 (1990).

        f. Former Representation - Consideration of Prior Confidences. Prosecutor, sometime prior to taking office as the prosecuting attorney, had represented defendant on auto theft and assault charges. Defendant murdered the victim, and the prosecuting attorney sought the death penalty. A prosecuting attorney is disqualified from acting in a criminal case if the prosecuting attorney has previously personally represented or been consulted professionally by an accused with respect to the offense charged or in relationship to matters so closely interwoven therewith as to be in effect a part thereof. In this matter, the prosecutor could have considered confidences from his prior representation in making nondelegable discretionary decisions regarding his decision to seek the death penalty. This case is unusual because it is a capital case. The court held that in other conflict cases, "if the prosecuting attorney separates himself or herself from all connection with the case and delegates full authority and control over the case to a deputy prosecuting attorney, we perceive no persuasive reason why such a complete delegation of authority and control and screening should not be honored if scrupulously maintained. There is a difference between the relationship of a lawyer in a private law firm and a lawyer in a public law office  .  .  .  accordingly, where a deputy prosecuting attorney is for any reason disqualified from a case, and is thereafter effectively screened and separated from any participation or discussion of matters concerning which the deputy prosecuting attorney is disqualified, then the disqualification of the entire prosecuting attorney's office is neither necessary nor wise." State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988).

        g. See supra Chapter 3, Section I.C.2 for a discussion of the Hunsaker, Greco and Stenger cases.

    D.   RPC 1.10 - Imputed Disqualification; General Rule.

      1. Summary of the Rule. This rule generally regulates lawyers associated with law firms; and prevents the firm from doing what an individual lawyer otherwise could not do because of an attorney-client relationship. The rule assures that client confidences and secrets will not be used adversely to the client's interest by members of the lawyers present or former firm. The rule also provides for "screening." It is important to note that although an individual attorney may be disqualified, the firm may, but not necessarily, be disqualified. The rule references RPC 1.6, 1.7, 1.8(c), 1.9 and 2.2. See supra the discussion at Chapter 6, Section V.C., regarding whether a prosecutor's office is a law office for disqualification. See also State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1990) (discussion of difference between lawyer in a public law office and lawyer in a private law firm).

      2. Application in Criminal Prosecution.

        a. A prosecuting attorney who has represented a defendant in other criminal charges cannot oversee the prosecution of the defendant in a capital case where the death penalty is sought. In other matters where the prosecuting attorney's former representation is so "interwoven" with the current case, or there are other ethical considerations, if that prosecutor separates himself or herself from all connection with the case and delegates full authority and control over the case to a deputy, the entire office need not be disqualified from prosecuting the defendant.

        b. Cross reference this rule with RPC 1.7 and RPC 1.9.

      3.  Case Law Summary.

      See supra Chapter 3, Section I.C.2. and Chapter 6, Section VI.C.3 for discussions of State v. Ramos, 83 Wn. App. 622, 922 P.2d 193 (1996); Hunsaker; and Stenger.

    E.  RPC 1.11 - Successive Government and Private Employment.

      1. Summary of the Rule.

        a. Restrictions on Move Between Public/Private Practice. This rule places restrictions upon lawyers moving between public and private practice. A lawyer in his or her private practice (including his or her firm) or government practice, shall not represent a client if the lawyer participated personally and substantially as a lawyer in a related matter involving that client. Also, a lawyer who has gained confidential government information may not represent a client if his or her knowledge of the government information could be used to the material disadvantage of the adverse party. The rule provides for exceptions in the following circumstances: if the government consents, if the attorney is effectively screened, or if the law otherwise permits representation. Negotiation for employment is also regulated under this rule.

        b. State Officers and Employees. See RCW 42.52.080 regarding post public service employment of state officers and employees.

        c. See also supra Chapter 3, Section I.E and Chapter 3, Section IV, for discussion of civil issues.

      2.  Application in Criminal Prosecution.

        a. Prosecutor Moving to Defense. Prosecutors who are "switching sides" must ensure that they do not undertake representation of a defendant in a matter in which they participated as a prosecutor unless the government consents. However, the lawyer's new firm may be able to represent the defendant if the lawyer is effectively screened from participation in the matter.

        b. Defender Moving to Prosecution. A prosecutor who has represented a defendant in a matter may not participate in prosecuting the former client.

      3.  Case Law Summary. See supra Chapter 3, Section I.C.2. and Chapter 6, Section VI.C.3. for a discussion of Stenger.

    F.  RPC 1.12 - Former Judge, Arbitrator or Mediator.

      1. Summary of the Rule. A lawyer shall not represent a client in a matter in which the lawyer participated as a judge, arbitrator, mediator, or law clerk unless all parties consent to representation after full disclosure. Nor shall the lawyer who has served in an adjudicative position in a matter negotiate for employment with a party or such party's counsel. This rule generally parallels RPC 1.11. The lawyer's firm is also disqualified unless the requirements of the rule are met.

      2. Application in Criminal Prosecution. RPC 1.12 places certain restrictions upon lawyers who serve or have served in a formal or informal capacity trying to resolve a matter. If a prosecutor has served as a mediator between disputants, such as fighting neighbors, or assisted in negotiating a settlement between private parties in lieu of prosecution, the lawyer may be disqualified from prosecuting the case if the settlement fails.

      3. Case Law Summary.

        a. Prosecutor as Mediator. A prosecutor acted as a mediator between two neighbors who could not get along. When the mediation efforts failed, the prosecutor initiated charges against one of the disputants. The court held filing of charges by the mediating prosecutor violated the Appearance of Fairness Doctrine. This was because a judicial proceeding is valid under the doctrine only if a reasonably prudent and disinterested observer would conclude that all the parties obtain a fair, impartial and neutral hearing. A prosecutor is a quasi-judicial officer and must act in accordance with the doctrine. Because the prosecutor served as a mediator and clearly had a relationship to the matter, he should have been disqualified from prosecuting the case under RPC 1.12 (a). The court reaffirmed that by screening the disqualified prosecutor, another prosecutor could have prosecuted the defendant. State v. Tolias, 84 Wn. App. 696, 929 P.2d 1182 (1997).


List of Authorities

Cases

  • Alpha Inv. Co. v. Tacoma, 13 Wn. App. 532, 536 P.2d 674 (1975)
  • Amoss v. Universitv of Washington, 40 Wn. App. 666, 700 P.2d 350 (1985)
  • Anti-Monopoly v. Hasbro, 1995 WL 649934 (S.D.N.Y 1995), not reported in Fed. Supp
  • Babcock v. State, 116 Wn.2d 596, 809 P.2d 143 (1991)
  • Barrv v. Johns, 82 Wn. App. 865, 920 P.2d 222 (1996)
  • Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)
  • Berger v. United States, 295 U.S. 78 (1935)
  • Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978)
  • Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)
  • Bryant v. Joseph Tree, Inc., 119 Wn.2d 21O, 829 P.2d 1099 (1992)
  • Buckley v. Fitzsimmons, 509 U.S. 259 (1993)
  • Burns v. Reed, 500 U.S. 478, 111 S. Ct. 1934, 114 L.Ed 2d 547 (1991)
  • Cathcart v. Anderson, 85 Wn.2d 102,530 P.2d 313 (1975)
  • Columbian Pub. Co. v. City of Vancouver, 36 Wn. App. 25, 671 P.2d 280 (1983)
  • Comden v. Superior Court, 576 P.2d 971 (Cal. 1978)
  • Cottonwood Estates, Inc. v. Paradise Builders, Inc., 624 P.2d 296 (Ariz. 1981)
  • Crandon v. State, 897 P.2d 92 (Kan. 1995)
  • Creelman v. Svenning, 67 Wn.2d 882, 410 P.2d 606 (1966)
  • Cummings v. Sherman, 16 Wn.2d 88, 132 P.2d 998 (1943)
  • Dawson v. Dalv, 120 Wn.2d 782, 845 P.2d 995 (1993)
  • Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989)
  • Dietz v. Doe, 131 Wn.2d 835 (1997)
  • Dike v. Dike, 75 Wn.2d 1, 448 P.2d 490 (1968)
  • Donovan v. Reinholt, 433 F.2d 738 (9th Cir. Calif. 1970)
  • Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed 2d 100 (1963)
  • Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 224O, 49 L.Ed.2d 91 (1976)
  • Dyson v. United States, 418 A.2d 127 (D.C. App. 1980)
  • Eastern Technologies Inc. v. Chem-Solv. Inc., 128 F.R.D. 74, 76 (E.D. Pa. 1989)
  • Escalante v. Sentrv Ins. Co., 49 Wn. App. 375, 743 P.2d 832 (1987), rev. denied, 109 Wn.2d 1025 (1988)
  • Farnham v. Crista Ministries, 116 Wn.2d 659, 807 P.2d 830 (1991)
  • Feeney v. Commonwealth of Massachusetts, 366 N.E.2d 1262 (Mass. 1977)
  • Fisher v. Clem, 25 Wn. App. 303, 607 P.2d 326 (1980)
  • Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982)
  • Ford v. State, 628 S.W. 2d 340 (Ark. Ct. App. 1982)
  • Foster v. Barbour, 613 F.2d 59 (4th Cir. 1980)
  • Front Roval & Warren CY. Ind. Park Corp. v. Front Royal, Va., 708 F. Supp. 1477 (W.D.Va. 1989)
  • Galloway v. Superior Court of District of Columbia, 816 F.Supp. 12 (D.D.C., 1993), 1 ADD 663, 2 AD Cas 577
  • Georgetown Manor. Inc. v. Ethan Allen, Inc., 753 F. Supp. 936, 938 (S.D. Fla. 1991)
  • Hafemehl v. Universitv of Washington, 29 Wn. App. 366, 628 P.2d 846 (1981)
  • Harris v. Pierce County, 84 Wn. App. 222, 928 P.2d 1111 (1996)
  • Hearn v. Rav, 68 F.R.D. 574 (E.D. Wash. 1975)
  • Heidebrink v. Moriwaki, 104 Wn.2d 392,706 P.2d 212 (1985)
  • Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)
  • Hoppe v. King Countv, 95 Wn.2d 332,622 P.2d 845 (1980)
  • Hoquiam v. Employment Relations Comm'n, 29 Wn. App. 319, 628 P.2d 1314 (1981)
  • Hoquiam v. PERC, 97 Wn.2d 481, 646 P.2d 129 (1982)
  • Howitt v. Superior Court, 5 Cal. Rptr. 2d 196 (Cal. App. 4 Dist. 1992)
  • Hunt v.Blackburn, 128U.S.464,9S.Ct. 125,32L.Ed.488(1888)
  • Imbler v. Pachtman, 424 U.S. 409, 96, S.Ct. 984, 47 L.Ed.2d 128 (1976)
  • In re Ballou, 48 Wn.2d 539, 295 P.2d 316 (1956)
  • In re Caffrev, 63 Wn.2d 1, 385 P.2d 383 (1963)
  • In re Coons, 41 Wn.2d 599, 250 P.2d 976 (1952)
  • In re Eddleman, 63 Wn.2d 775, 289 P.2d 296 (1964)
  • In re Firestorm 1991, 129 Wn.2d 130, 916 P.2d 411 (1996)
  • In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910 (8th Cir. 1997),
  • cert. denied, 1997 U.S. LEXIS 3898 (June 23, 1997)
  • In re Lathan, 654 P.2d 1110 (Or. 1982)
  • In re Professional Ethics Opinion 452, 432 A.2d 829 (N.J. 1981)
  • In re Richardson, 100 Wn.2d. 669, 675 P.2d 209 (1983)
  • In re Sealed Case, 877 F.2d 976 (D.C. Cir. 1989)
  • In Re Vetter, 104 Wn.2d 779, 711 P.2d 284 (1985)
  • In re Witt, 96 Wn.2d 56, 633 P.2d 880 (1981)
  • Kalina v. Fletcher, U.S. , 118 S.Ct. 502, L.Ed.2d (1997)
  • Kansas Citv Power & Light Co. v. Pittsburg Midwav Coal Min. Co., 133 F.R.D. 171 (D. Kan. 1989)
  • Kloepfer v. Commission on Judicial Performance, 49 Ca. 3d 826, 782 P.2d 239 (1989)
  • Knutsen v. Miller, 28 Wn.2d 837, 184 P.2d 255 (1947)
  • Kyles v. Whitlev, 514 U.S. 410, 115 S.Ct. 1555, 131 L. Ed. 2d 490 (1995)
  • Lois Sportswear v. Levi Straus & Co F.R.D. 103 (S.D. N.Y. 1985) 14
  • Mason County v. PERC, 54 Wn. App. 36, 771 P.2d 1185 (1989), rev. denied, 113 Wn.2d 1013, 779 P.2d 730 22
  • Matter of Kerr, 86 Wn.2d 655, 548 P.2d 297 (1976)
  • Matter of Opinion No. 415, 81 N.J. 318, 407 A.2d 1197 (1979)
  • Matter of Recall of Estey, 104 Wn.2d 597, 707 P.2d 1338 (1985)
  • McCarthur v. Bank of New York, 524 Fed. Supp. 1205 (S.D. N.Y. 1981)
  • Medical Disciplinarv Board v. Johnston, 99 Wn.2d 466, 663 P.2d 457 (1983)
  • Monroe Township Board of Adjustment v. Mavor and Township Committee, 511 A.2d678 (N.J. 1986)
  • Nichols v. Snohomish Countv, 109 Wn.2d 613, 746 P.2d 1208 (1987)
  • Northport v. Northport Townsite Co., 27 Wash. 543, 68 Pac. 204 (1902)
  • Odmark v. Westside Bank Corp. Inc., 636 F. Supp. 552 (W.D. Wa. 1986)
  • Office of Disciplinarv Counsel v. Collins, 643 N.E.2d 1082 (Ohio 1994)
  • Osborn v. Grant Countv, 130 Wn.2d 615, 926 P.2d 911 (1996)
  • Overlake Fund v. Bellevue, 70 Wn. App. 789, 855 P.2d 706 (1993), rev. denied, 123 Wn.2d 1009 (1994)
  • Ovler v. Boles, 368 U.S. 448, 81 S.Ct. 502, 7 L.Ed.2d 446 (1962)
  • Pappas v. Hollowav, 114 Wn.2d 198, 787 P.2d 30 (1990)
  • People v. Superior Court Cty of San Bernandino, 86 Cal. App. 3d 180, 150 Cal. Rptr. 156 (Cal. Ct. App. 1978)
  • People v. Wilev, 165 I11.2d 259, 651 N.E. 189 (1995)
  • Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830 (E.D. Pa. 1962)
  • Port of Seattle v. Rio, 16 Wn. App. 718,559 P.2d 18 (1977)
  • Port Townsend Publishing Co. v. Brown, 18 Wn. App. 80, 567 P.2d 664 (1977)
  • Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991)
  • PUD 1 v. International Insurance Company, 124 Wn.2d 799, 881 P.2d 1020 (1994)
  • Robinson v. Seattle, 119 Wn.2d 34, 830 P.2d 318 (1992), reconsideration denied
  • Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)
  • Seattle Northwest Securities Corp. v. SDG Holdin~ Co., 61 Wn. App. 725, 812 P.2d 488 (1991)
  • Seattle v. Orwick, 113 Wn.2d 823, 784 P.2d 161 (1989)
  • Seattle v. State, 100 Wn.2d 232, 68 P.2d 1266 (1983)
  • Servais v. Port of Bellingham, 127 Wn.2d 820, 904 P.2d 1124 (1995)
  • Seventh Elect Church v. Rogers, 102 Wn.2d 527, 688 P.2d 506 (1984)
  • Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)
  • Sherman v. State, 128 Wn.2d 164, 905 P.2d 355 (1995)
  • Sherrod v. United States 478 A.2d 644 (D.C. App.1984)
  • Shriver v. Baskin-Robins Ice Cream Co. Inc., 145 F.R.D. 112 (D. Colo. 1992)
  • Sintra. Inc. v. Seattle, 119 Wn.2d 1, 829 P.2d 765 (1992)
  • Sobol v. Capital Management Consultants, Inc., 126 P.2d 335 (Nev. 1986)
  • State ex ref. Goldsmith v. Super. Ct. of Hancock Ctv, 386 N.E. 2d 942 (Inc. 1979)
  • State ex ref. Long v. McLeod, 6 Wn. App. 848, 496 P.2d 540, rev. denied, 81 Wn.2d 1004 (1972)
  • State ex. ref. Nebraska State Bar Ass'n v. Neumister, 449 N.W.2d 17 (Neb. 1989)
  • State v. Allen, 57 Wn. App. 134, 788 P.2d 1084 (1990)
  • State v. Anderson, 41 Wn. App. 85, 702 P.2d 481 (1985)
  • State v. Ashcraft, 71 Wn. App. 444, 859 P.2d 60 (1993)
  • State v. Barrow, 60 Wn. App. 869, 809 P.2d 209, rev. denied, 118 Wn.2d 1007, 822 P.2d 288 (1991)
  • State v. Belgarde, 110 Wn.2d 504, 755 P.2d 174 (1988)
  • State v. Blackwell, 120 Wn.2d 822, 830 P.2d 1017 (1993)
  • State v. Bourgeois, 82 Wn. App. 314, 917 P.2d 1101 (1996)
  • State v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906, 80 A.L.R.4th 989 (1990)
  • State v. Brown, 76 Wn.2d 352, 458 P.2d 165 (1969)
  • State v. Burch, 65 Wn. App. 828, 830 P.2d 357 (1992)
  • State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976)
  • State v. Campbell, 103 Wn.2d 1, 691 P.2d 929 (1984), cert. denied, 471 U.S. 1094, 105 S.Ct. 2169, 85 L.Ed.2d 526 (1985)
  • State v. Carlisle, 73 Wn. App. 678, 871 P.2d 174 (1994)
  • State v. Carr, 160 Wash. 74, 294 P. 1016 (1930)
  • State v. Case, 49 Wn.2d 66, 298 P.2d 500 (1956)
  • State v. Casteneda-Perez, 61 Wn. App.354, 810 P.2d 74 (1991)
  • State v. Charlton, 90 Wn.2d 657,585 P.2d 149 (1978)
  • State v. Clausell, 474 So.2nd 1189 (Flat 1985)
  • State v. Cochran,51 Wn. App. 116, 752 P.2d 1194, rev. denied, 110 Wn.2d 1017 (1988)
  • State v. Copeland, 130 Wn.2d 244, 922 P.2d 1304 (1996)
  • State v. Coppin, 57 Wn. App. 866,791 P.2d 228 (1990)
  • State v. Dailev, 93 Wn.2d 454, 610 P.2d 357 (1980)
  • State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984)
  • State v. Davis, 38 Wn. App. 600, 686 P.2d 1143 (1984)
  • State v. Day, 51 Wn. App. 544, 754 P.2d 1021 (1988)
  • State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990)
  • State v. Dennison, 72 Wn.2d 842, 435 P.2d 526 (1967)
  • State v. Denton, 58 Wn. App. 251, 792 P.2d 537 (1990)
  • State v. Duggins, 68 Wn. App. 396, 844 P.2d 441 (1993)
  • State v. Earlv, 70 Wn. App. 452, 853 P.2d 964 (1993), rev. denied, 123 Wn.2d 1004 (1994)
  • State v. Easter, 130 Wn.2d 228, 922 P.2d 1285 (1996)
  • State v. Fackrell,44 Wn.2d 874, 271 P.2d 679 (1954)
  • State v. Fleetwood, 75 Wn.2d 80, 448 P.2d 502 (1968)
  • State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076 (1996)
  • State v. Frederiksen, 40 Wn. App. 749, 700 P.2d 369 (1985)
  • State v. Gibson, 75 Wn.2d 174,449 P.2d 692 (1969)
  • State v. Grant, 83 Wn. App. 98, 920 P.2d 609 (1996)
  • State v. Greco, 57 Wn. App. 196, 787 P.2d 940 (1990), rev. denied, 114 Wn.2d 1027, 793 P.2d 974
  • State v. Greve, 67 Wash.App. 166, 834 P.2d 656 (1992), rev. denied, 121 Wn.2d 1005, 848 P.2d 1263 (1993)
  • State v. Guizzotti, 60 Wn. App. 289, 803 P.2d 808 (1991)
  • State v. Hansen, 122 Wn.2d 712, 862 P.2d 117 (1993)
  • State v. Harrison, 72 Wn.2d 737, 435 P.2d 547 (1967)
  • State v. Harvey, 34 Wn. App. 737, 664 P.2d 1281 (1983)
  • State v. Hunsaker, 74 Wn. App. 38, 873 P.2d 540 (1994)
  • State v. Huson, 73 Wn.2d 660, 440 P.2d 192 (1968)
  • State v. Ingels, 4 Wn.2d 676, 104 P.2d 944 (1940)
  • State v. Jacobsen, 74 Wn.2d 36, 442 P.2d 629 (1968)
  • State v. James, 63 Wn.2d 71, 385 P.2d 558 (1963)
  • State v. Johnson, 702 S.W. 2d 65 (Mo. 1985)
  • State v. Johnson, 80 Wn. App. 337, 908 P.2d 900 (1996)
  • State v. Jones, 71 Wn. App. 798, 863 P.2d 85, reconsideration denied, 124 Wn.2d 1018, 881 P.2d 254 (1993)
  • State v. Koerber, 85 Wn. App. 1, 931 P.2d 904 (1996)
  • State v. Ladenburg, 67 Wn. App. 749, 840 P.2d 228 (1992)
  • State v. Lane, 125 Wn.2d 825, 889 P.2d 929 (1995)
  • State v. Lewis, 78 Wn. App. 739, 898 P.2d 874 (1995)
  • State v. Mak, 105 Wn.2d 692, 718 P.2d 407, reconsideration denied, cert.
  • denied,479 U.S. 995, 107 S. Ct. 599, 93 L. Ed.2d 599 (1986)
  • State v. Metcalf, 14 Wn. App. 232, 540 P.2d 459 (1975), rev.
  • denied, 87 Wn.2d 1009 (1976)
  • State v. Miller, 32 Wn.2d 149, 201 P.2d 136 (1948)
  • State v. Montgomery, 56 Wash. 443, 105 P. 1035 (1909)
  • State v. Music, 79 Wn.2d 699, 489 P.2d 159 (1971)
  • State v. Negrete, 72 Wn. App. 62, 863 P.2d 137 (1993), rev. denied, 123 Wn.2d 1030, 877 P.2d 695 (1994)
  • State v. Neidigh, 78 Wn. App. 71, 895 P.2d 423 (1985)
  • State v. Papadopoulos, 34 Wn. App. 397, 662 P.2d 59 (1983)
  • State v. Parker, 74 Wn.2d 269,444 P.2d 796 (1968)
  • State v. Peterson, 29 Wn. App. 655, 630 P.2d 480 (1981)
  • State v. Powell, 126 Wn.2d 244, 893 P.2d 615 (1995)
  • State v. Powell, 62 Wn. App. 914, 816 P.2d 86, rev. denied, 118 Wn.2d 1013, 824 P.2d 491 (1991)
  • State v. Prybi1, 211 N.W.2d 308 (Iowa 1973)
  • State v. Pryor, 67 Wash. 216, 121 P. 56 (1912)
  • State v. Ramos, 83 Wn. App. 622, 922 P.2d 193 (1996)
  • State v. Rhodes, 82 Wn. App. 192, 917 P.2d 149 (1996)
  • State v. Rice, 110 Wn.2d 577, 757 P.2d 889 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 707 (1989)
  • State v. Richards, 97 Wash. 587, 167 Pac. 47 (1917)
  • State v. Rose, 62 Wn.2d 309, 382 P.2d 513 (1963)
  • State v. Rupe, 101 Wn.2d 664, 683 P.2d 571 (1984)
  • State v. Russell, 125 Wn.2d 24, 882 P.2d 747 (1994)
  • State v. Sanchez, 72 Wn. App. 821, 867 P.2d 638 (1994)
  • State v. Sargent, 40 Wn. App. 340, 698 P.2d 598 (1985)
  • State v. Savage, 127 Wn.2d 434, 899 P.2d 1270 (1995)
  • State v. Scott, 58 Wn. App. 50, 791 P.2d 559 (1990)
  • State v. Simonson, 82 Wn. App. 226, 917 P.2d 599 (1996)
  • State v. Smith, 74 Wn.2d 744, 446 P.2d 571 (1968)
  • State v. Smith, 82 Wn. App. at 335, 917 P.2d 1108 (1996)
  • State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988)
  • State v. Sullivan, 60 Wn.2d 214, 373 P.2d 474 (1962)
  • State v. Susan, 152 Wash. 365, 278 Pac. 149 (1929)
  • State v. Swan, 114 Wn.2d 613, 790 P.2d 610 (1990)
  • State v. Tolias, 84 Wn. App. 696, 929 P.2d 1178 (1997)
  • State v. Torres, 16 Wn. App. 254, 554 P.2d 1069 (1976)
  • State v. Traweek, 43 Wn. App. 99, 715 P.2d 1148 (1986)
  • State v. Tweedv, 165 Wash. 281, 5 P.2d 335 (1931)
  • State v. Twitchell, 61 Wn.2d 403, 378 P.2d 444 (1963)
  • State v. Underwood, 33 Wn. App. 833, 658 P.2d 50 (1983)
  • State v. Walton, 5 Wn. App. 150, 486 P.2d 1118 (1971)
  • State v. White, 80 Wn. App. 406, 907 P.2d 310 (1995), rev. denied, 129 Wn.2d 1012 (1996)
  • State v. Whitney, 96 Wn.2d 578, 67 P.2d 956 (1981)
  • State v. Wilson, 16 Wn. App. 348, 555 P.2d 1375 (1976)
  • State v. Wood, 44 Wn. App. 139, 721 P.2d 541 (1986)
  • State v. Wright, 78 Wn. App. 93, 895 P.2d 713, rev. denied, 127 Wn.2d 1024, 904 P.2d 1157 (1995)
  • Stern v. Daniel, 47 Wash. 96, 91 P. 552 (1907)
  • Suarez v. Newquist, 70 Wash. App. 827, 855 P.2d 1200 (1993)
  • Teja v. Saran, 68 Wn. App. 793, 846 P.2d 1375 (1993), rev. denied,122 Wn.2d 1008 (1993)
  • Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993),
  • rev. denied, 123 Wn.2d 1027, 877 P.2d 694 (1994)
  • U.S. v. State of Oregon, 699 F. Supp. 1456, (D. Oregon, 1988), aff'd, 913 F.2d 576, cert. denied, 501 U.S. 1250, 111 S. Ct. 2889, 115 L. Ed. 2d 1054
  • United States ex rel Macon v. Yeager, 476 F. 2d 613 (3rd Cir. 1973), cert. denied, 414U.S.855,38L.Ed.2dlO4,94S.Ct. 154(1973)
  • United States v. Alverson, 666 F.2d 431 (9th Cir. 1982)
  • United States v. Brown 500 F.2d 375 (4th Cir.1974)
  • United States v. Cerone, 452 F.2d 274 (7th Cir. 1971)
  • United States v. Endicott, 803 F.2d 506 (9th Cir. 1986)
  • United States v. Hanna, 49 F.3d 572 (9th Cir. Wash. 1995)
  • United States v. Hubbard, 493 F. Supp. 206 (D.D.C. 1979)
  • United States v. Jackson, 935 F.2d 832 (1991)
  • United States v. Martin, 561 F.2d 135, 21 CrL 2526 (8th Cir. 1977) United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)
  • United States v. Sawver, 347 F.2d 372 (4th Cir. 1965)
  • United States v. Shoupe, 548 F.2d 636 (6th Cir. 1977)
  • United States v. Singer, 785 F.2d 228 (8th Cir. 1986), cert. denied, 479 U.S. 833, 107 S.Ct. 273, 93 L.Ed.2d 249 (1986)
  • United States v. Tucker, 267 F.2d 212 (3rd Cir. 1959)
  • United States v. Wolfson, 634 F.2d 1217 (9th Cir. 1980)
  • Upjohn Companv v. United States, 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677 (1981)
  • Washington Medical Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 663 P.2d 457 (1983)
  • Washington State Physicians Insurance Exchange v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993)
  • Westerman v. Carv, 125 Wn.2d 277, 885 P.2d 827 (1994)
  • Westinghouse Electric Corp. v. Republic of Philippines, 951 F.2d 1414 (3rd Cir. 1991)
  • Withrow v. Larkin, 421 U.S. 35, 95 S. Ct. 1456, 43 L.Ed.2d 712 (1975)
  • Wright v. Group Health Hosp., 103 Wn.2d 192, 691 P.2d 564 (1984)
  • Zehring v. Bellevue, 99 Wn.2d 488, 663 P.2d 823 (1983)

Statutes

  • 142 USC Section 1983
  • 28 USC Section 535
  • 29 USC Section 794
  • 38 USC Section 7332
  • 42 USC Section 12132
  • 42 USC Section 1983
  • Chapter 10.05 RCW
  • Chapter 10.97 RCW, Washington State Criminal Records Privacy Act
  • Chapter 10.99 RCW
  • Chapter 11.28 RCW
  • Chapter 42.17 RCW, Public Disclosure Act
  • Chapter 42.20 RCW
  • Chapter 42.22 RCW
  • Chapter 42.23 RCW
  • Chapter 42.30 RCW, Open Public Meetings Act
  • Chapter 42.40 RCW
  • Chapter 42.41 RCW
  • Chapter 42.52 RCW
  • Chapter 43.10 RCW
  • Chapter 70.02 RCW
  • Chapter 70.96A RCW
  • Chapter 9A.68 RCW
  • RCW 10.101.040
  • RCW 10.105.020
  • RCW 10.29.080
  • RCW 10.29.130
  • RCW 10.97.030
  • RCW 10.97.040
  • RCW 10.97.050
  • RCW 10.97.070
  • RCW 10.99.010
  • RCW 10.99.020
  • RCW 12.40.025
  • RCW 12.40.080
  • RCW 13.40.090
  • RCW 2.06.090
  • RCW 2.08.185
  • RCW 2.28.030
  • RCW 2.28.040
  • RCW 2.32.090
  • RCW 2.48.200
  • RCW 2.56.020
  • RCW 3.34.040
  • RCW 3.58.020
  • RCW 35.17.150
  • RCW 35.20.170
  • RCW 35.20.200
  • RCW 35.23.111
  • RCW 35.27.070
  • RCW 35.27.250
  • RCW 36.16.030
  • RCW 36.22.110
  • RCW 36.24.170
  • RCW 36.27.0052
  • RCW 36.27.020
  • RCW 36.27.030
  • RCW 36.27.040
  • RCW 36.27.050
  • RCW 36.27.060
  • RCW 36.28.110
  • RCW 36.93.061
  • RCW 4.92.090
  • RCW 41.14.170
  • RCW 41.17.310
  • RCW 41.20.067
  • RCW 41.26.110
  • RCW 42.13.310
  • RCW 42.17.250
  • RCW 42.17.260
  • RCW 42.17.310
  • RCW 42.17.311
  • RCW 42.20.010
  • RCW 42.20.020
  • RCW 42.23.020
  • RCW 42.23.030
  • RCW 42.23.040
  • RCW 42.23.060
  • RCW 42.23.070
  • RCW 42.30.010
  • RCW 42.30.020
  • RCW 42.30.030
  • RCW 42.30.060
  • RCW 42.30.110
  • RCW 42.41.030
  • RCW 42.52.020
  • RCW 42.52.030
  • RCW 42.52.040
  • RCW 42.52.050
  • RCW 42.52.080
  • RCW 42.52.120
  • RCW 42.52.130
  • RCW 42.52.140
  • RCW 42.52.150
  • RCW 42.52.160
  • RCW 42.52.480
  • RCW 43.10.060
  • RCW 43.10.065
  • RCW 43.10.090
  • RCW 43.10.115
  • RCW 43.10.120-130
  • RCW 43.10.125
  • RCW 43.10.130
  • RCW 43.43.858
  • RCW 43.70.075
  • RCW 46.61.5055
  • RCW 49.60.210
  • RCW 5.60.060
  • RCW 51.12.102
  • RCW 51.24.110
  • RCW 65.12.065
  • RCW 7.21.050
  • RCW 7.60.020
  • RCW 7.96A.150
  • RCW 70.02.050
  • RCW 70.96A.090
  • RCW 70.96A.150
  • RCW 73.16.061
  • RCW 9.94A.080
  • RCW 9.94A.430460
  • RCW 9A.68.010
  • RCW 9A.68.020
  • RCW 9A.68.030
  • RCW 9A.80.010
  • RCW Titles 11, 13, 26
  • WAC 296-14-900 - 940

Other Authorities

  • 2 L. Orland, Washington Practice (3d ed. 1972)
  • 3 A.L. Orland, Wash. Practice, Rule Practice (3d ed. Supp. 1991)
  • ABA Code of Professional Responsibility EC 7-14
  • ABA/BNA Lawvers' Manual on Professional Conduct, Vol. 1, No. 32, pp. 705-7, reporting D.C. Bar Committee on Legal Ethics Opinion No. 148, January 22, 1985
  • American Bar Association. Annotated Model Rules of Professional Conduct (3rd ed. 1996)
  • American Bar Association. Standards of Criminal Justice (2ded. 1980)
  • Aronson, R., "An Overview of the Law of Professional Responsibility: The Rules of Professional Conduct Annotated and Analyzed," 61 Wash. L. Rev. 823 (1986)
  • Cramton, R.C., The Lawyer as a Whistleblower: Confidentiality and the Government Lawyer, 2 Georgetown J. of Ethics 291, 298 (1991)
  • Curran, Stephen, Government Lawyers and Conflicts of Interest, 3 Georgetown Journal of Legal Ethics, 191, 196-98 (1989)
  • Donahoe, Keith W., The Model Rules and the Government Lawyer. A Sword or Shield? A Response to the D.C. Bar Special Committee on Government Lawver and The Model Rules of Professional Conduct, 2 Georgetown Journa] of Ethics 987 (1989)
  • Ferguson, R., Washington Criminal Practice and Procedure (1984)
  • Gershman, Prosecutonal Misconduct (1994)
  • Government Lawvers and Conflicts of Interest, 3 Georgetown Journal of Legal Ethics, 191, 191-192 (1989)
  • Lawless, Joseph F., Jr., PROSECUTORLAL MISCONDUCT Law-Procedure-Forms (1985)
  • Lawry, Robert P., Confidences and the Government Lawyer, 57 North Carolina Law Review 625 (1979)
  • Lawry, Robert P., Who is the Client of the Federal Government Lawyer? An Analysis of the Wrong Question, 37 Federal Bar Association 61 (1975)
  • McDonald, William F., The Prosecutor 19 (1979)
  • Moss, Barbara J., Ethical Prohibitions Against A Lawyer Serving As Both Advocate And Witness, 23 Memphis State U. Law Review, 555 (1993)
  • MRSC publication, The Open Meetings Act, Report No. 39, Municipal Research & Services Center of Washington (September 1997)
  • Public Records Disclosure for Washington Cities and Towns, Report No. 34 (1996)
  • Resolving Prosecutor Conflicts, 6 Georgetown Journal of Legal Ethics 415495 (1993)
  • Wolfram, Charles W., Modern Legal Ethics, 450 (West Publishing Co. 1986)

Rules2, 4, 84

  • CR 11
  • CR 26
  • CrR 4.7
  • CrR 8.3
  • CrRLJ 2.1
  • CrRLJ 4.7
  • CrRLJ 8.3
  • ER 404
  • RPC 1.10
  • RPC 1.11
  • RPC 1.12
  • RPC 1.14
  • RPC 1.15
  • RPC 1.2
  • RPC 1.4
  • RPC 1.5
  • RPC 1.6
  • RPC 1.7
  • RPC 1.8
  • RPC 1.9
  • RPC 2.1
  • RPC 2.2
  • RPC 3.1
  • RPC 3.2
  • RPC 3.3
  • RPC 3.4
  • RPC 3.5
  • RPC 3.6
  • RPC 3.7
  • RPC 3.8
  • RPC 4.2
  • RPC 4.3
  • RPC 5.1
  • RPC 5.3
  • RPC 6.1
  • RPC 6.2
  • RPC 7.1
  • RPC 7.5

Constitutional Provisions

  • Article 1, Section 11 of the Washington State Constitution
  • Article I, Section 7 of the Washington State Constitution
  • Fourth Amendment of the U. S. Constitution
  • United States Constitution, Article II, Section 4
  • Wash. Const., art. XXXI, § 1
  • Wash. Const. art. VIII, §§ 5, 7
Opinions
  • ABA Standing Committee on Ethics and Professional Responsibility, Fonnal Opinion 339 42
  • ABA Standing Committee on Ethics and Professional Responsibility, Informal Opinion 83-1503.40
  • AGLO 1971 No. 64
  • AGLO 1972,No. 3
  • AGO 1986,No.16
  • AGO 1997 No. 1
  • AGO 49-51 No. 269
  • WA Ops. Atty Gen. 1997-1
  • WSBA Formal Ethics Opinions, Opin. No. 1 (1950)
  • WSBA Formal Ethics Opinions, Opin. No. 104 (1962)
  • WSBA Formal Ethics Opinions, Opin. No. 121 (1963)
  • WSBA Formal Ethics Opinions, Opin. No. 132 (1965)
  • WSBA Formal Ethics Opinions, Opin. No. 149 (1971)
  • WSBA Formal Ethics Opinions, Opin. No. 161 (1975)
  • WSBA Formal Ethics Opinions, Opin. No. 174 (1981)
  • WSBA Formal Ethics Opinions, Opin. No. 29 (1954)
  • WSBA Fonnal Ethics Opinions, Opin. No. 3 (1951)
  • WSBA Formal Ethics Opinions, Opin. No. 59 (1959)
  • WSBA Formal Ethics Opinions, Opin. No. 59 (1959)
  • WSBA Formal Ethics Opinions, Opin. No. 74 (1960)
  • WSBA Formal Ethics Opinions. Opin. No. 81 (1960)
  • WSBA Formal Ethics Opinions, Opin. No. 87 (1960)
  • WSBA Formal Ethics Opinions, Opin. No. 98 (1961)
  • WSBA Informal Ethics Opinion 88-2

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