Wash. R. Prof'l. Cond. 1.0A

As amended through November 30, 2022

Rule 1.0A - TERMINOLOGY

(a) "Belief" or "believes" denotes that the person involved actually supposed the fact in question to be true. A person's belief may be inferred from circumstances.

(b) "Confirmed in writing," when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of "informed consent." If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

(c) "Firm" or "law firm" denotes a lawyer, lawyers, an LLLT, LLLTs, or any combination thereof in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers or LLLTs employed in a legal services organization or the legal department of a corporation or other organization.

(d) "Fraud" or "fraudulent" denotes conduct that has a purpose to deceive and is fraudulent under the substantive or procedural law of the applicable jurisdiction, except that it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

(e) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

(f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

(g) "Partner" denotes a member of a partnership a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.

(h) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.

(i) "Reasonable belief" or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.

(j) "Reasonably should know" when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.

(k) "Screened" denotes the isolation of a lawyer or an LLLT from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer or LLLT is obligated to protect under these Rules, the LLLT Rules of Professional Conduct, or other law.

(l) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.

(m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.

(n) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and electronic communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

[Former Rule 1.0, adopted effective September 1, 1985; Amended effective September 1, 1990; September 1, 2006. Renumbered Rule 1.0A and amended effective April 14, 2015; Amended effective September 1, 2016.]

Wash. R. Prof'l. Cond. 1.0A

Adopted effective 4/14/2015; Amended effective 6/4/2019.

Comment

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a written confirmation at the time the client gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. If a lawyer has obtained a client's informed consent, the lawyer may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.

See also Washington Comment [11].

Firm

[2] Whether two or more lawyers constitute a firm within paragraph (c) can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm, they should be regarded as a firm for purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the Rule that information acquired by one lawyer is attributed to another.

[3] [Washington revision] With respect to the law department of an organization, there is ordinarily no question that the members of the department constitute a firm within the meaning of the Rules of Professional Conduct. There can be uncertainty, however, as to the identity of the client. For example, it may not be clear whether the law department of a corporation represents a subsidiary or an affiliated corporation, as well as the corporation by which the members of the department are directly employed. A similar question can arise concerning an unincorporated association and its local affiliates.

[4] Similar questions can also arise with respect to lawyers in legal aid and legal services organizations. Depending upon the structure of the organization, the entire organization or different components of it may constitute a firm or firms for purposes of these Rules.

See also Washington Comments [12] and [13].

Fraud

[5] When used in these Rules, the terms "fraud" or "fraudulent" refer to conduct that is characterized as such under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. This does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. For purposes of these Rules, it is not necessary that anyone has suffered damages or relied on the misrepresentation or failure to inform.

See also Washington Comment [14].

Informed Consent

[6] [Washington revision] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g., Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the Rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client's or other person's options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of another lawyer. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by another lawyer in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by another lawyer in giving the consent should be assumed to have given informed consent.

[Comment 6 amended effective April 14, 2015.]

[7] [Washington revision] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of Rules require that a person's consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in writing," see paragraphs (n) and (b). Rule 1.8(a) requires that a client's consent be obtained in a writing signed by the client. See also Rule 1.5(c)(1) (requiring that a contingent fee agreement be "in a writing signed by the client"). For a definition of "signed," see paragraph (n).

See also Washington Comment [15].

Screened

[8] [Washington revision] This definition applies to situations where screening of a personally disqualified lawyer or LLLT is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12, 1.18, or 6.5.

[9] [Washington revision] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer or LLLT remains protected. The personally disqualified lawyer or LLLT should acknowledge the obligation not to communicate with any of the other lawyers or LLLTs in the firm with respect to the matter. Similarly, other lawyers or LLLTs in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer or LLLT with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers or LLLTs of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer or LLLT to avoid any communication with other firm personnel and any contact with any firm files or other information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer or LLLT relating to the matter, denial of access by the screened lawyer or LLLT to firm files or other information, including information in electronic form, relating to the matter and periodic reminders of the screen to the screened lawyer or LLLT and all other firm personnel.

[Comment 9 amended effective April 14, 2015; September 1, 2016.]

[10] [Washington revision] In order to be effective, screening measures must be implemented as soon as practical after a lawyer, LLLT, or law firm knows or reasonably should know that there is a need for screening.

See also Washington Comment [16].

[Comment 10 amended effective April 14, 2015.]

Additional Washington Comments (11 - 17)

Confirmed in Writing

[11] Informed consent requires that the writing be articulated in a manner that can be easily understood by the client.

Firm

[12] Although the definition of "firm" or "law firm" in Rule 1.0A(c) differs from the definition set forth in the Terminology section of Washington's former Rules of Professional Conduct, there is no intent to change the scope of the definition or to alter existing Washington law on the application of the Rules of Professional Conduct to lawyers in a government office.

[Comment 12 amended effective April 14, 2015.]

[13] An office or subdivision of an organization employing lawyers who are pointed or assigned to represent indigent members of the public is considered a separate law firm if it is fully independent from othe4r units of the organization, including physical separation and no shared access to client information.

[Comment 13 adopted effective September 1, 2018.]

Fraud

[14] Model Rule 1.0A(d) was modified to clarify that the terms "fraud" and "fraudulent" in the Rules of Professional Conduct do not include an element of damage or reliance.

[Comment 14 amended effective April 14, 2015.]

Informed Consent

[15] In order for the communication to the client to be adequate it must be accomplished in a manner that can be easily understood by the client.

Screened

[16] See Rules 1.10 and 6.5 for specific screening requirements under the circumstances covered by those Rules.

Other

[17] For the scope of the phrase "information relating to the representation of a client," which is not defined in Rule 1.0A, see Comment [19] to Rule 1.6.

[Comment 16 amended effective April 14, 2015.]

[Comments adopted effective September 1, 2006; Amended April 14, 2015; September 1, 2016; September 1, 2018.]