Can a government lawyer argue to a court that another lawyer's assignment is ethical, in response to that lawyer's ethics-based objection?

Plain-English summary

The inquiry arose where a prosecutor is required to begin competency procedures against a charged criminal defendant. An assigned lawyer had argued that it is unethical for the lawyer to accept a court assignment to represent a criminal defendant alleged to be mentally incompetent, contending that because of the defendant's disability the defendant cannot personally "consent" to the lawyer receiving compensation through an indigent-defense program (citing RPC 1.8(f)) and cannot "authorize" the lawyer's actions (citing RLD 1.1(d)). The government lawyer asked whether it is ethical to oppose that argument and argue to the court that the assignment is ethical and would not violate the assigned lawyer's duties under the Rules.

The committee concluded that a lawyer may raise and argue ethical issues to a tribunal, and that such conduct is not a violation of RPC 8.4(a).

Currency note

This opinion was issued in 1999, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. Washington's RPC 8.4 (misconduct) was carried into the 2006 revisions, and the Rules for Lawyer Discipline (RLD) referenced in the inquiry were later superseded by the Rules for Enforcement of Lawyer Conduct (ELC), so verify the current rules before relying on them.

Common questions

Q: Can a lawyer argue ethics questions to a court?

A: Yes. The committee concluded that a lawyer may raise and argue ethical issues to a tribunal.

Q: Is arguing the other lawyer's ethics a violation of RPC 8.4(a)?

A: No. The committee concluded that such conduct is not a violation of RPC 8.4(a).

Background and rules framework

The opinion addressed the question under Washington RPC 8.4(a) (it is professional misconduct to violate or attempt to violate the Rules, or to knowingly assist or induce another to do so), corresponding to ABA Model Rule 8.4(a). The committee treated advocacy of an ethical position before a tribunal as permissible rather than as inducing a violation of the Rules.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(a)

See also

• WA Ethics Op. 1876: Lawyers' Sick-Out or Strike
• WA Ethics Op. 1858: Approval to File a Bar Complaint
• WA Ethics Op. 1871: Government Lawyer Conflict

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1083

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1889
Year Issued: 1999
RPC(s): RPC 8.4(a)
Subject: Responding to opposing counsel's arguments about ethical duties

The inquirer asked for guidance in situations where [a prosecutor] is required to begin competency procedures against a charged criminal defendant.

The issue concerns a lawyer’s argument that is unethical for him to accept an assignment from the court to represent a criminal defendant alleged to be mentally incompetent. The lawyer is asserting that due to the defendant’s disability, the defendant is unable to personally "consent" to the lawyer receiving compensation through an indigent defense program, citing RPC 1.8(f), and for the same reason, cannot "authorize" the lawyer’s actions on his behalf, citing RLD 1.1(d).

The question posed is: Is it ethical for the government lawyer to oppose the assigned lawyer’s argument and thereby argue to the court that such an assignment is ethical and would not violate the assigned lawyer’s duties and obligations under the RPC’s?

It is the position of the RPC Committee that a lawyer may raise and argue ethical issues to a tribunal and that such conduct is not a violation of RPC 8.4(a).