Wash. R. Prof'l Conduct 1.0A

(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.]

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.]