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WSBA News and Information
Supreme Court Adopts Changes to Rules of Professional Conduct on Fees and Fee Agreements
In 1990, in an attempt to clarify the distinction between client fee payments that must be held in a trust account and those that should not be, the WSBA Board of Governors approved Formal Ethics Opinion No. 186, entitled "The Proper Handling of Advance Fee Deposits and Retainers." In 2005, Formal Opinion 186 was withdrawn following the Supreme Court's decision in In re Discipline of DeRuiz, 152 Wn.2d 558, 99 P.3d 881 (2004), in which the Court disciplined a lawyer for failing to returned unearned money, rejecting the lawyer's argument that a flat fee paid in advance for specific services was a "retainer" earned at the point of receipt. The withdrawal of Formal Opinion 186 created a void in guidance for lawyers with respect to the proper handling of advance fee payments. For this reason, in October 2007, the WSBA Board of Governors submitted suggested amendments to RPC 1.5 and RPC 1.15A to clarify these issues.
On October 28, 2008, following a public comment period, the Court adopted amendments to RPC 1.5 and 1.15A. A new paragraph (f) in RPC 1.5 creates two exceptions to the general rule that fees paid in advance of services remain the property of the client and must be kept in trust. The exceptions are: (1) availability retainers, and (2) flat fees for specified services. The rule, for both types of fee agreements, requires a writing signed by the client. Flat fees require an additional disclosure substantially similar to the form set out in the rule, the purpose of which is to advise the client that the fee will immediately be placed into the lawyer's operating account, that payment of a flat fee in advance does not impair the client's right to terminate the client-lawyer relationship, and that the flat fee structure does not extinguish the possibility that the client may, or may not, have the right to a refund. The rule also requires the lawyer to take reasonable and prompt action to resolve a dispute relating to a designated flat fee or retainer. Companion amendments to RPC 1.15A clarify that except for a fee properly characterized as a retainer or flat fee under RPC 1.5(f), a lawyer must deposit fees paid in advance into a trust account, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
The amendments, which were published in the advance sheets on November 18, 2008, became effective upon publication. A link to the complete text of the amendments is available at www.courts.wa.gov/court_rules/?fa=court_rules.adopted.
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The recent stress in financial markets and the banking industry has raised many questions about the security of funds held by lawyers on behalf of their clients. While the Federal Deposit Insurance Corporation (FDIC) continues to insure bank accounts from bank insolvencies, there are limits to the insurance coverage, and exceeding those limits could expose client funds to certain risks. Click here to read more.
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The October 2008 edition of News Flash is now available online. Click here to read it.
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The Board of Governors Bylaw Review Committee held its first meeting on October 7, 2008. The Committee considered: (1) simplifying the current license-fee structure by creating two tiers for active service rather than the current five; (2) simplifying the late-fee structure; (3) changing "Emeritus" status to "Emeritus/Pro Bono"; and (4) waiving the annual fee for Emeritus/Pro Bono and requiring "Emeritus/Pro Bono" members to perform at least 80 hours of pro bono service annually with a qualified legal services provider. These matters will be before the Board for possible action at its December 5-6 meeting. Click here for more information.
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Lawyers' Fund for Client Protection 2008 Report Now Available
The 2008 Lawyers' Fund for Client Protection is now available online. Click here to read it.
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Summer 2008 Bar Exam Pass List Results
The summer 2008 bar exam pass list results are available online. Click here for the pass list and here for passage percentages.
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Voting for Judges Website
The "Voting for Judges" website is a valuable nonpartisan source of judicial-evaluation information for candidates running for judicial office. Originally developed in 2006, the site now includes information on candidates for Supreme Court, the Court of Appeals, and Superior Courts throughout the state.
The WSBA is pleased to join other organizations in helping to sponsor this important source of information. We encourage you to share this website with your clients, neighbors, and friends.
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Members of the Washington State Public Employees' Retirement System (PERS) with service credit earned while serving as an elected or appointed judge or justice may be able to increase their PERS retirement benefit by purchasing a higher benefit multiplier for the service credit earned during their judicial career. Only PERS members who are not currently serving as a judge and have not started receiving their PERS monthly benefit are eligible for this program. For more information, see http://www.drs.wa.gov/Member/publications/
pers/persjudicialincrease.htm or contact the PERS Judicial Benefit Team at 360-664-7966; 800-547-6657, ext. 47966; or recep@drs.wa.gov.
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Lawyers Beware of Trust-Account Scam
Click here for information on a trust-account scam that was recently reported in the media.
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Washington state deployed approximately 3,500 of our National Guard members to Iraq in August. Deployment places additional demands on military personnel and their families, and Washington lawyers can offer their skills to assist our citizen soldiers, their family members, and our fellow attorneys in uniformed service. A network of civilian attorney volunteers throughout the state, Attorneys Assisting Citizen-Soldiers and Families, has been formed to provide limited legal services to these individuals. For more information on how you can help, click here. Also see http://aacf.wordpress.com.
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2008 Legislative Bill Referrals to Sections
The 2008 Legislative Bill Referrals to Sections are now available online. Click here to view them.
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The Washington Pattern Jury Instruction Committee is pleased to announce that the website providing pattern jury instructions available at no charge is now up and running, and can be accessed at http://government.westlaw.com/linkedslice/default.asp?SP=WCCJI-1000. For more information, see "Pattern Jury Instructions: Free Public Access on Trial Basis," published in the April issue of Bar News.
A new chapter of pattern jury instructions has been posted online. The new chapter is on Blakely instructions, to be used for SRA sentencing proceedings that involve juries. The new chapter can be found both on Westlaw and on the new public website. Questions about the website should be directed to Rick Neidhart at Rick.Neidhardt@courts.wa.gov.
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The WSBA is pleased to provide links to county bar associations' publications. We invite all county bar associations in Washington to be included, so information can be shared, and your activities publicized, with members throughout the state. Click here to go to the County Bar Association Publications page. If you would like your publication included, please e-mail Stephanie Perry at stephaniep@wsba.org.
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Click on the links below for more information on this opportunity for service.
Office of Public Defense Advisory Committee - applications accepted until December 31, 2008
Chief Hearing Officer - applications accepted until January 15, 2009
Washington State Access to Justice Board - applications accepted until position is filled
University of Washington School of Law's Immigrant Families Advocacy Project - ongoing
Bellevue Youth Court Seeking Volunteer Attorneys - ongoing
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The WSBA is pleased to announce the adoption of a new mission statement, guiding principles, and strategic goals for the next three years. Over recent months, the Long Range Planning Committee, chaired by Sixth-District Governor Sal Mungia, performed a systematic review of the WSBA's goals, and proposed a revised way of looking at the organization – who the WSBA is, why it exists, and where it should be spending its resources and energy. Watch for an article in the December issue of Bar News by Executive Director Paula Littlewood and Governor Sal Mungia entitled "Into the Future: New Clarity and Focus for the WSBA's Path."
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Watch the November Edition of The Docket on TVW
The WSBA, along with the WSBA Business Law; Labor and Employment Law; and Real Property, Probate and Trust sections, sponsors a monthly legal-affairs program on TVW, The Docket. The November 2008 episode premiered on Sunday, November 2, at 8 p.m., and will be rebroadcast throughout the month.
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A guide, Ensuring Equal Access for People with Disabilities: A Guide for Washington Courts, has been developed by the Access to Justice Board's Impediments to Access to Justice Committee. The Guide is an important compendium of laws, information, and suggestions for assuring equal access for all, and it includes suggested means of accommodation.
Click here to see the brochure that accompanies the guide.
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Help Educate the Public About the Law
Writing editorials, visiting classrooms, and presiding over mock trials are just a few ways lawyers and judges can help the public better understand the legal system. For information about public legal education volunteer opportunities and resources, see the volunteering page on the Council on Public Legal Education website.
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The "Random Acts of Professionalism" Program allows lawyers and judges to honor others in the profession whose conduct has upheld the spirit of the Creed of Professionalism.
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