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. 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 of concern. As a general rule, attorneys should always conduct additional research when confronted with ethical issue, consult the RPCs, and be guided by their own conscience.
Conflicts of Interest
The Rules of Professional Conduct make it clear that a lawyer may not represent a client when the interest of that client is adverse to another client. Conflicts of interest may not be immediately apparent and can arise at any time. Be aware of this and be prepared to conduct conflict checks if new information arises. The conflict may only become apparent late into the discovery process or during the deposition of witnesses. If such a conflict does arise, then you have a duty to withdraw unless it is possible to obtain waivers from your clients. Whenever a situation arises when you may want to obtain a waiver, be sure to research the issue thoroughly to make sure obtaining a waiver is permissible in those circumstances. If obtaining a waiver is permissible, then you will want to communicate with your client(s) and make certain they are fully informed as to all of the possible consequences and benefits of signing a waiver.
Handling Prejudicial Evidence
Attorneys must be particularly careful when handling evidence that is prejudicial to their client's case in preparation for trial. 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. Even the inadvertent or completely unknowing holding back of evidence, particularly evidence prejudicial to your case, from opposing counsel creates a very unpleasant appearance of impropriety and raises the risk of additional costly litigation and a bar complaint. Therefore, it is prudent to handle prejudicial evidence with extreme care. Every move should be documented, particularly its delivery to opposing counsel, so that there is not even the semblance of impropriety.
Talking to Witnesses Represented by Counsel
As a general rule, you should not speak 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.
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. However, there are ethical considerations in talking to a witness before they testify. RPC 4.3 governs your communication, on behalf of your client, with unrepresented persons. Attorneys must not imply they are disinterested in any way, and should take care to make it very clear who they represent and in what capacity. For all these reasons, it is best to go out of your way to make sure the witness knows who you represent.
Every aspect of the legal profession has numerous ethical considerations. 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. Therefore, attorneys should take care to do what they can to avoid creating such appearances, and promptly bring any issues to the attention of the court and to opposing counsel. 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 is inadvertently created and if addressed appropriately will cause much less problems. If in doubt, seek out advice.
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