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Flashcards in WA rules Deck (25)
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1

In re Simmons

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

2

Civil liability

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

3

Rule 11 (signed pleadings)

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

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

4

Rule 1.6

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

5

Rule 1.18 Duties to prospective clients

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

6

Attorney’s fees: Contingent Fees

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



7

Attoney's Fees: Retainer and Flat Fees

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

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

8

Cost recovery

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

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

9

Fee Splitting

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

10

Changing fee agreements:

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

11

WA 1.15 (a) and 1.15 (b)

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

12

Prosecuting in WA

WA doesn’t use dist. Attorney model
Prosecuting attorney model, can advise police but only prosecute when requested

13

Rule 8.3 Reporting Professional conduct (Reporting of ethical violations)

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

14

Duty of Care

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

15

Cotton v. Kronenberg

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

16

Eriks v. Denver

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

17

Confidentiality

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

18

Attorney Client Privilege

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

(1) the extent to which the transaction was intended to affect/benefit the plaintiff;

(2) the foreseeability of harm to the plaintiff;

(3) the degree of certainty that the plaintiff suffered injury;

(4) the closeness of the connection between the defendant's conduct and the injury;

(5) the policy of preventing future harm; and

(6) the extent to which the profession would be unduly burdened by a finding of liability.

19

Competence in a Criminal Case: Strickland v. Washington

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

20

Declining/Terminating Representation:

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

21

Disclosure

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

22

Covenant Judgements:

Olympic v. Steamship

23

Endorsements

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

24

How to prove Quantum Meriut

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

25

Random WA Facts to remember

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