Do the ethics rules apply to a government lawyer in a job that does not require a law license, and what governs when a matter cannot be pursued in good faith?

Plain-English summary

The inquirer was a lawyer employed by the Department of Social and Health Services, Medical Assistance Administration, to defend client appeals of adverse denials of Medicaid medical services. The inquirer appeared before administrative law judges in hearings that produced a decision binding on the department unless appealed, and occasionally believed that a case should not, in good faith, be appealed. The position did not require a lawyer, although legal expertise was helpful.

The committee opined that the RPCs apply to all lawyers licensed in Washington, regardless of how the position is characterized with the employer. As to defending cases as directed by the employer, the committee said RPC 3.1 addresses the inquirer's responsibilities upon a determination that the matter cannot be defended in good faith. It added that RPC 1.2 and 1.4(b) require disclosure to and consultation with the client.

Currency note

This opinion was issued in 2001, 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Do the ethics rules apply to a lawyer in a government job that does not require a law license?

A: Yes. The committee opined that the RPCs apply to all lawyers licensed in Washington, regardless of how the position is characterized with the employer.

Q: What rule governs when a government lawyer believes a case cannot be pursued in good faith?

A: The committee pointed to RPC 3.1, which it said addresses the lawyer's responsibilities upon a determination that the matter cannot be defended in good faith.

Q: Does the lawyer have to tell the client agency?

A: The committee said RPC 1.2 and 1.4(b) require disclosure to and consultation with the client.

Background and rules framework

The opinion applies Washington RPC 3.1 (meritorious claims and contentions; corresponding to Model Rule 3.1) to a lawyer's determination that a matter cannot be defended in good faith. It reads that duty together with RPC 1.2 (scope of representation; Model Rule 1.2) and RPC 1.4(b) (communication; Model Rule 1.4), which the committee said require disclosure to and consultation with the client. The threshold point is that the RPCs bind every Washington-licensed lawyer regardless of the employer's job description.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.1 / Washington RPC 3.1 (meritorious claims and contentions)
• Model Rule 1.2 / Washington RPC 1.2 (scope of representation)
• Model Rule 1.4 / Washington RPC 1.4(b) (communication; explaining a matter to permit informed decisions)

See also

• OSB Ethics Op. 2005-59: Frivolous Joinder of Defendants
• NY State Bar Op. 1214: Frivolous Arguments and Withdrawal

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1183

Original opinion text

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

Advisory Opinion: 1943
Year Issued: 2001
RPC(s): RPC 1.2; 1.4(b); 3.1
Subject: Application of RPCs; meritorious claims

The inquirer is a lawyer employed by the Dept. of Social and Health Services, Medical Assistant Administration, to defend client appeals of adverse denials of Medicaid medical services. The inquirer appears before administrative law judges in hearings that result in a decision binding on the department unless appealed. Occasionally the inquirer believes that a case should not, in good faith, be appealed. The position does not require a lawyer, although legal expertise is helpful in the job.

The committee opined that the RPCs apply to all lawyers licensed in Washington, regardless of the characterization of the position with the employer. As to the inquirer’s defense of cases as directed by the employer, RPC 3.1 addresses the inquirer’s responsibilities upon the determination by the inquirer that the matter cannot be defended in good faith. RPC 1.2 and 1.4(b) require disclosure to and consultation with the client.