WACDL ANNUAL CONVENTION FOCUS ON ETHICS” SAMPLE PROBLEM

By Stephen Hayne

On January1, you receive a call from a prospective client facing DUI and DWLS charges. He needs immediate representation due to a January 3 arraignment date. The client, Harley Davidson, advises that he has heard you are “the best” and that
money is no object”. Harley explains that he has been out of town closing a huge business deal and was thus unable to find an attorney until the last minute. You squeeze Harley in for an appointment the next morning.

During your initial review, Harley explains that he has a couple of “bogus” prior arrests for prior DUIs but was never convicted. He doesn’t know why his license is allegedly suspended and blames it on the DOL, claiming it must be a mistake. Harley claims he only had a couple of beers (despite the two .19 breath tests), was driving fine, and, “besides the cop didn’t actually see drive. Me and Gloria were already out the car at a 7-11 parking lot when he pulled in.” Harley insists that he does nor have a drinking problem and doesn’t need any of those “stupid classes.” Harley all but begs to take the case, once again emphasizing that money is no problem.

You don’t really like or trust Harley and it’s clear he has a tough case in a tough court. On the other hand, it’s the end of the month and the bank balance is low. Despite misgivings, you agree to handle his arraignment conditioned on his written promise to pay the retainer fees as soon as the “deal” closes, or at the latest, by the end of the month.

When the police reports come, your suspicious are confirmed, the case is a real rat. From beginning to the end, the evidence is overwhelming and there are no legal issues to impede the state’s juggernaut. The cop claims he followed Harley with his lights and siren on for a quarter mile before Harley pulled into the 7-11 and staggered from the driver’s seat. He flunked all the FST’s and didn’t have a license due to two priors and a breath test refusal.

On top of that Harley has become a real nuisance; calling daily, complaining about lying cops and conspiracies, refusing to follow your advice and demanding continuances into the next millennium. It’s been eight weeks since the arraignment and he still hasn’t paid the retainer, claiming his commission is being held up in escrow and will be released “any day now’

With the trial date rapidly approaching, it is clear that Harley has one choice; got to trial. Miraculously, Harley calls to inform you that he has found Gloria and that she’ll testify that she was actually driving, not Harley (in obvious conflict with what he initially told you). While talking on the phone with Harley, your legal assistant hands you a note reminding you that his trial is two weeks away and that he hasn’t paid a dime toward the retainer fee. Harley now informs you that his business deal “fell through” but he is good for the fee and will make payments after he’s found not guilty. You know from experience that you’re never going to get a dime out of Harley and rue the day you took his case. At this point, what are your options?

1. Do you have grounds for withdrawal?
2. Can you condition your appearance at trial on payment?
3. Can you refuse to represent Harley on breach of contract grounds?
4. Can you condition continued representation on Harley providing you with collateral prior to trial?
5. Can you condition your continued representation on Harley’s agreement to waive jury (thus saving you considerable time and expense)?
6. Can you withdraw based on Gloria’s apparent perjury?
7. What if Harley insists on testifying that Gloria was driving?
8. Can you refuse to call Gloria and/ or Harley at trial?
9. Can you take a dive at the trial?
10. Can you threaten to take a dive if he doesn’t pay?
11. Can you hire a couple of goons to have a “chat” with Harley?
12. Can you threaten Harley with criminal prosecution for suborning perjury?

WACDL ANNUAL CONVENTION “DEALING WITH HARLEY DAVIDSON”

By Stephen Hayne

Unfortunately, once the case has been set for trial, CrRLJ 3.1 (e) prohibits withdrawal without permission of the court:

Withdrawal of Lawyer. Whenever a case has been set for trial, no lawyers shall be allowed to withdraw except upon consent of the court for good cause shown upon substitution of another lawyer or upon the defendant’s knowing and voluntary decision to proceed without a lawyer.

Since Harley is way too smart to volunteer to represent himself when he already has you as his indentured servant, you need “good cause” for withdrawal and another lawyer willing to take him off your hands. Assuming that you could find someone with a law degree dumb enough to substitute, do you have good cause for both withdrawal and the necessary continuance which would follow? Concerning Harley’s attempt to stiff you on the fee, some hope can be found in RPC 1.15, which allows withdrawal “if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation in fulfilled.” The problem is we waited until two weeks before trial and it’s doubtful any judge would consider a warning to pay or find another lawyer at this late date “reasonable.” After all, whether you cab pay the rent isn’t of much concern to someone with a comfortable seat at the public trough.

All things considered, you’re probably stuck trying to try the case if your motive for withdrawal is financial. And there really isn’t anything you can do for force Harley over the money to provide collateral before jury selection begins. On the other hand, Harley’s proferred perjury is another matter all together. Although many commentators hold the view that a defense lawyer’s loyalty to the client superceeds all but the most blatant attempt to defraud the court and jury*. I take a more conservative approach; simply not to jeopardize my reputation for the sake of any client’s desire to commit perjury.
While I would refuse to disclose a client’s confidence or the specific basis of my motion to withdraw, neither would I assist Harley in proffering the clearly perjured testimony. What to do?
There is ample authority in the RPCs for withdrawal under these circumstances, starting with RPC 1.2 (d):

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and make counsel or assist a client to make a good faith to determine the validity, scope, meaning or application of the law.

(e): When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall conduct with the client regarding the relevant limitations of a lawyer’s conduct.

Thus, you and Harley need to have a serious discussion about the limits of your representation. While it is relevant whether you get paid or not, you need to advise him that you cannot allow him or his witness to commit perjury. You may quote Harley the provisions of RPC 1.6 (b) concerning the revealing of “confidences”

Finally, some refuge can be found in RPC 2.1 [the lawyer as advisor]:

In representing a client, a lawyer shall exercise independent professional judgement and render candid advice. In rendering advice, a lawyer may refer not only to law, but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.

Finally, the RPCs clearly require candor in dealing with the judge. That rule provides as follows:

(a) A lawyer shall not knowingly:

(1) Make a false statement of material fact or law to a tribunal;
(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client unless such disclosure is prohibited by rule 1.6;
(3) Offer evidence that the lawyer knows to be false.
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*See Ethical Problems Facing the Criminal Defense Lawyer, American Bar Association Criminal Justice Section, Chapters 1, 6, 10 and 11.

RPC 1.3

TITLE 1
CLIENT-LAWYER RELATIONSHIP

RULE 1.1

COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

RULE 1.2

SCOPE OF REPRESENTATION

(a) A lawyer shall abide by a client’s decisions concerning the on objectives of
representation, subject to sections (c), (d), and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive the jury trial and whether the client will testify.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral view or activities.

(c) A lawyer may limit the objectives of the representation if the client consents after consultation

(d) A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer know is criminal or fraudulent, but a lawyer may discuss the legal consequences of any 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

(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult the client regarding the relevant limitations on the lawyer’s conduct.

RULE 1.3

DILIGENCE

A lawyer shall act with reasonable diligence and promptness in representing a client.

RPC 1.6

(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.

RULE 1.7

CONFLICT OF INTEREST; GENERAL RULE

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

1. The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
2. Each client consents in writing after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure)

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:

1. A lawyer reasonably believes the representation will not be adversely affected; and
2. The client consents in writing believes after consultation and a full disclosure of the material facts (following authorization from the other client to make such a disclosure). When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantage and risks involved.

RULE 1.8

CONFLICT IF INTERERT; PROHIBITED TRANSACTIONS; CURRENT CLIENT

A lawyer who is representing a client in a matter:

1. The Foundation shall prepare an annual report to the Supreme Court of Washington that summarizes the Foundation’s income, grants and operating expenses,
   implementation of its corporate purposes, and any problems arising in the administration of the program establishes by section (c) of this rule.
2. The provisions of section (c) shall not relieve a lawyer or law firm from any obligation imposed by these rules with respect to safe keeping of clients’ funds, including the requirements of section (b) that a lawyer shall prompt notify a client of the receipt of his or her funds and shall promptly pay or deliver to the client is entitled to receive.

(d) Escrow and other funds held by a lawyer incident to the closing of nay real estate or personal property transaction are client funds subject to this rule regardless of whether the lawyer, the law firm, or the parties view the funds as belonging to clients or nonclients.

Comment by the Court

Escrow or other funds incident to the closing of real personal property transactions are subject to this rule regardless of whether the lawyer views the funds as belonging to clients.

RULE 1.15

DECLINING OR TERMINATING REPRESENTATION

(a) Except as stated in section (c), a lawyer shall not represent a client or where
representation has commenced, shall not withstanding RCW 2.44.040, withdrawal from the representation of a client if:

1. The representation will result in violation of the Rules of Professional Conduct or
   the other law;
2. The lawyer’s physical or mental condition materially impairs his ability to
   represent the client; or
3. The lawyer is discharged.
   

(b) Except as stated in section (c), a lawyer may withdraw from representing a client
if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:

1. The client persists in a course of action involving the lawyer’s services that the
   lawyer reasonably believes is criminal or fraudulent;
2. The client has used the lawyer’s services to perpetrate a crime or fraud;
3. The client insists upon pursuing an objective that the lawyer considers repugnant
   or imprudent;
4. The client fails substantially to fulfill an obligation to the lawyer considers
   regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
5. The representation will result in an unreasonable financial burden on the lawyer
   or has been rendered unreasonably difficult by the client; or
6. Other good cause for withdrawal exists.

(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) A lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

TITLE 2

COUNSELOR

RULE 2.1

ADVISOR

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral economic, social and political factors, that may be relevant to the client’s situation.

RULE 2.2

INTERMEDIARY

(a) A lawyer may act as a intermediary between clients if:

1. The lawyer consults with each client concerning the implications involved, and the effect on the attorney-client privileges, and obtains each client’s written consent to the common representation;
2. The lawyer reasonably believes that the matter can be resolved on terms compatible with the clients’ best interests, that each client will be able to make adequately informed decisions in the matter and that there is little risk of material prejudice to the interest of any of the clients if the contemplated resolution is unsuccessful; and
3. The lawyer reasonably believes that the common representation can be undertaken
   impartially and without improper effect on other responsibilities the lawyer has to any of the clients.