Know How to Walk the Ethical Line

Posted over 5 years ago. Applies to Washington, 2 helpful votes

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Introduction

All attorneys have duties to their clients and ethical responsibilities to which they must adhere. However, it is possible for there to be a conflict between an attorney's duty to be a zealous advocate for their client and their ethical responsibilities as an officer of the court under the Rules of Professional Conduct (RPCs). In these cases it is extremely important to know how to walk the ethical line and maintain one's reputation. As an attorney, your reputation is all you have and your actions in these difficult situations of potential ethical conflict may end up defining your reputation for the future.

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Research

Much of how an attorney should act in these situations is controlled by the Rules of Professional Conduct ("RPCs"). However, an attorney should also be guided by personal conscience and the approval of professional peers. An attorney is responsible for understanding the RPCs, available online for free at http://www.courts.wa.gov/court_rules/ under the Rules of General Application section, and being aware of what he or she must do to comply with them. This can be somewhat daunting as there are rules governing every aspect of an attorney's professional behavior. However, there are many resources available that an attorney can turn to for advice, including the Washington State Bar Association ("WSBA"). The WSBA website has detailed information on their Ethics/Professional Responsibility Program and Formal Ethics Opinions.

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WSBA Ethics rules

The WSBA also has an ethics line that attorneys may call to seek clarification from the professional responsibility counsel. The number for the ethics line is 206-727-8284 or 800-945-WSBA ext. 8284. In addition to seeking advice from the WSBA, trusted professional peers are also an excellent source of counsel and advice for an attorney with an ethical question or concern. Ethical issues that potentially conflict with a client's desires can arise at any point during a case. In some cases, ethical issues are apparent before the attorney has even agreed to represent the prospective client. In other cases, ethical issues may not be apparent or even arise until the trial has already begun. This document is intended to be a general overview and introduction into some of the ethical issues that an attorney should carefully consider and be prepared to calmly and professionally address should they arise.

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Conflicts of Interest

The Rules of Professional Conduct establish minimum requirements, making it clear that a lawyer may not represent a client when the interest of that client is adverse to another client, RPC 1.7 (a)(1); when there is a risk that there may be limits flowing from the duty to another client, RPC 1.7 (a)(2)]; or when the representation is prohibited by law, RPC 1.7 (b)(1). Lawyers in the same firm shall not knowingly "represent a client when anyone of them, practicing alone would be prohibited from doing so by Rule 1.7." RPC 1.10(a). Conflicts of interest may not be immediately apparent and can arise at any time. Sometimes these conflicts occur under RPC 1.7 and/or RPC 1.8 and must be addressed by withdrawing your representation or obtaining a waiver from your client.

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Dealing Fairly With Conflicts Involving Multiple Parties

Some of the most serious conflicts can arise when dealing with multiple parties to the same case. Occasionally, multiple plaintiffs or multiple defendants on the same case will want you to represent all of them together. These situations must be approached with extreme caution. They are heavily regulated by the RPCs and can severely impair your clients ability to trust you. If there is even a suggestion that your clients have begun to have differing interests, then your clients ability to confide in you will be severely damaged. Before agreeing to represent multiple parties to the same case be certain to fully discuss the possibilities for conflict, explain how you will act if a conflict or the appearance of a conflict should arise, and obtain the appropriate waivers as required under RPCs 1.7 and 1.8.

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The Ethics of Disclosing Information Which Defeats Coverage

One of the more difficult ethical issues for an attorney to address is the handling of evidence that is prejudicial to your clients case, particularly evidence that is so prejudicial that it can even defeat coverage for your client. However, sometimes you will be required to disclose this information. The RPCs clearly state that an attorney shall not "unlawfully obstruct another party's access to evidence." RPC 3.4(1). The court rules for your jurisdiction will require you to disclose such prejudicial evidence in certain circumstances. You should carefully review and understand all of the rules surrounding the disclosure of evidence in your jurisdiction. The rules may require you to disclose information harmful to your client and you must be prepared to address such a situation with your client.

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Handling Prejudicial Evidence

Careful handling of prejudicial evidence is crucial to this process. How you handle prejudicial evidence will be noticed by other members of the legal community, and professionally handling such evidence in accordance with the RPCs will be positively noticed. Similarly, negligent handling of prejudicial evidence will be negatively noticed and often create conflict with your clients. Therefore, attorneys must be particularly careful when handling evidence that is prejudicial to their client's case. The mishandling of prejudicial evidence, even if inadvertent, can be both a discovery violation and a violation of RPC 3.4. RPC 3.4 covers fairness to opposing counsel and makes it a violation to unlawfully obstruct opposing counsel's access to evidence, or unlawfully alter, destroy, or conceal anything of evidentiary value. The vast majority of attorneys would never intentionally violate RPC 3.4.

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Talking to Witnesses Represented by Counsel

As a general rule, you should not speak to or communicate in any way with the opposing party. RPC 4.2 says that a lawyer may not communicate about the subject of the case with a person the lawyer knows to be represented by another attorney in the matter. If communication is required, be certain to obtain the consent of the person's counsel or a court order, and only communicate with the person in the presence of their counsel.

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Talking to Witnesses before they testify (Your client or unrepresented witnesses)

It is very important to talk to witnesses before they testify. Most witnesses have never testified before and have no idea what to expect. So, you should discuss what the rules of the courtroom are, and what to expect when testifying. During this discussion, it is common and acceptable to essentially conduct a witness interview and ask them questions as you would at trial. This lets the witness get an idea of what testifying will be like and gives you valuable information about the witness' demeanor and memory.

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Conclusion

Knowing how to walk the ethical line in situations where your duties as an officer of the court may conflict with the desires of your client is critical to maintaining the attorney-client relationship, your clients case, and preserving your reputation. The prudent attorney will obtain a solid understanding of the RPCs, research potential issues, and follow their conscience in the practice of law. It is extremely easy to create of the appearance of impropriety that damages the attorney-client relationship and your reputation. Therefore, attorneys should take care to do what they can to avoid creating such appearances. Failing to disclose an issue, even a minor one, can create serious problems and even more of an appearance of impropriety. The vast majority of ethical issues are inadvertently created and if addressed promptly and appropriately will cause minor problems if any. If in doubt, seek out advice.

Additional Resources

http://www.wsba.org/lawyers/ethics/default.htm

http://www.wsba.org/lawyers/ethics/formalopinions/default1.htm

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