Can a public defender take on a client's second, unrelated matter with the client's consent, and must the public defender first contact the lawyer already assigned to that second matter?

Plain-English summary

The inquirer asked two questions. First, whether a public defender already representing a client on a matter before a court may represent that same client on a different, unrelated matter before the same court when the client consents on the record but a different attorney had been assigned to the second matter. Second, whether the public defender must contact the client's attorney on the second matter before asking the client to consent to the public defender's representation, when the second matter is heard by the same court as the first.

On the first question, the committee said a public defender may represent a client on more than one matter if the client consents and the public defender is competent to represent the client on each matter. Nothing in the Rules of Professional Conduct prohibits this, so long as the public defender meets the requirements for representation in RPC 1.1 (competence), 1.2 (scope), 1.3 (diligence), 1.4 (communication), 1.6 (confidentiality), 1.7 and 1.8 (conflicts of interest), and 1.13 (client under a disability, in the pre-2006 numbering). The committee noted its earlier State of Washington Ethics Advisory Opinion 02-22, which recognized that a represented client may nonetheless choose to proceed pro se on the same matter, with the judge noting the representation and the waiver on the record.

On the second question, the committee said the Rules of Professional Conduct do not require the public defender to contact the attorney assigned to the second matter before discussing the representation with the client. RPC 4.2 regulates a lawyer's communications with a party known to be represented by counsel, but the committee said its purpose is to prevent improper contact with an opposing party. Quoting Wright v. Group Health Hospital, 103 Wn.2d 192 (1984), the committee read RPC 4.2 to bar communication only where the lawyer has an interest in the matter adverse to the represented party. Because the public defender is not adversarial to the client, RPC 4.2 does not prohibit the public defender from communicating with the client about the second matter even though the client is represented by different counsel on it.

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which renumbered and revised several of the rules cited here (for example, the client-with-diminished-capacity rule, then RPC 1.13, is now RPC 1.14). 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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated a public defender's representation of a client on multiple matters as permitted with the client's consent, conditioned on competence and the conflict, confidentiality, and related rules. Per the opinion, the no-contact rule, RPC 4.2, does not apply to the public defender's communications with the client about a second matter handled by other assigned counsel, because RPC 4.2 reaches contact with an adverse represented party and the public defender is not adverse to the client.

Common questions

Q: Can a public defender represent the same client on more than one matter?

A: The committee said yes, a public defender may represent a client on more than one matter if the client consents and the public defender is competent to handle each matter, provided the competence, conflict, confidentiality, and related rules are met.

Q: Must the public defender contact the other lawyer assigned to the second matter before discussing it with the client?

A: No. The committee said the Rules of Professional Conduct do not require the public defender to contact the attorney assigned to the second matter before discussing the representation with the client.

Q: Doesn't RPC 4.2 bar contact with a person represented by another lawyer?

A: The committee said RPC 4.2's purpose is to prevent improper contact with an opposing party; it applies where the lawyer has an interest in the matter adverse to the represented party. Because the public defender is not adversarial to the client, RPC 4.2 does not prohibit the communication.

Q: Does the client need to consent on the record?

A: The question assumed the client consents on the record, and the committee's first holding turns on client consent; it also cited Ethics Advisory Opinion 02-22, where a judge notes the representation and any waiver of counsel on the record.

Background and rules framework

The opinion interprets RPC 4.2 (corresponding to Model Rule 4.2), the rule against communicating about the subject of a representation with a person the lawyer knows to be represented by another lawyer in the matter, absent that lawyer's consent or authorization by law. The committee read the rule, consistent with Wright v. Group Health Hospital, to apply only where the contacting lawyer's interest in the matter is adverse to the represented party. The first holding rests on the general framework for undertaking a representation: RPC 1.1 (competence) and 1.7 (conflicts), among the related rules the committee enumerated (1.2, 1.3, 1.4, 1.6, 1.8, and 1.13). Rule numbers reflect Washington's pre-2006 numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 4.2 / Washington RPC 4.2 (communication with a person represented by counsel)
• Model Rule 1.1 / Washington RPC 1.1 (competence)
• Model Rule 1.7 / Washington RPC 1.7 (conflict of interest)
• Washington RPC 1.2, 1.3, 1.4, 1.6, 1.8, and 1.13 (scope, diligence, communication, confidentiality, conflicts, and client under a disability; pre-2006 numbering), listed by the committee as the requirements for multi-matter representation

Cases:

• Wright v. Group Health Hospital, 103 Wn.2d 192 (1984), scope of the no-contact rule

Other opinions cited:

• Washington Ethics Advisory Opinion 02-22 (represented client may proceed pro se; judge notes representation and waiver on the record)

See also

• WSBA Ethics Op. 1000: Contact With Represented Party
• WSBA Ethics Op. 1274: Contacting City Employees
• WSBA Ethics Op. 1307: Adverse Party Contacts You Directly

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1253

Original opinion text

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

Advisory Opinion: 2010
Year Issued: 2003
RPC(s): RPC 4.2
Subject: public defender, communication with represented parties

The inquirer asked:

(1) Whether a public defender who is representing a client on a matter before a court may represent the same client on a different and unrelated matter before the same court when the client consents to the public defender’s representation on the record, but a different attorney had been assigned to represent the client on the second matter?

(2) Whether the public defender must contact the client’s attorney on the second matter before asking for the client’s consent to the public defender representing the client on the second matter when the second matter is being heard by the same court as the first matter?

The committee opined the following:

(1) A public defender may represent a client on more than one matter if the client consents to such representation and the public defender is competent to represent the client on each matter.

(2) The Rules of Professional Conduct do not require the public defender to contact the attorney assigned to represent the client on the second matter prior to discussing such representation with the client.

The committee’s opinion is based on the following: Some courts may enter into agreements to hear matters such as release or bail issues that are before other courts. A client who has more than one matter pending in more than one court may have more than one attorney assigned to handle each of the matters. Because of the authority given to a court to adjudicate a matter that did not originate in that court, the assigned counsel for each matter may not be present when all of the client’s matters are adjudicated.

DISCUSSION

A. A public defender may represent a client on more than one matter if the client consents.

There is nothing in the Rules of Professional Conduct that prohibits a public defender from representing a client on more than one matter if the client consents so long as the public defender meets the requirements for representation in RPCs 1.1 (competence), 1.2 (scope of representation), 1.3 (diligence), 1.4 (communication), 1.6 (confidentiality), 1.7 and 1.8 (conflicts of interest) and 1.13 (disability).

State of Washington Ethics Advisory Opinion 02-22 implicitly recognizes that a client who is represented by counsel on a matter may nevertheless choose to represent himself pro se on the same matter. The opinion holds that a judge will not violate the Code of Judicial Conduct by accepting such representation. The judge need only make it known on the record that (1) the judge is aware of the representation and (2) that the defendant has chosen to waive his right to counsel.

B. A public defender undertaking to represent a client on more than one matter need not contact the client’s assigned attorney before doing so.

RPC 4.2 regulates an attorney’s communications with a party known to be represented by counsel. However, RPC 4.2 is not implicated here as the purpose of RPC 4.2 is to prevent improper contact with an opposing party represented by counsel. RPC 4.2 states:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

RPC 4.2 is meant to prohibit communication with a represented party about a “matter” if an attorney has an interest in the “matter” (i.e., has an interest in the matter or represents a party with an interest in the matter that is opposite to that of the represented party.) If the attorney seeks to communicate with a party about a matter and the attorney clearly has no interest whatsoever in the matter upon which he seeks to communicate, then such communication would not be prohibited by RPC 4.2. See Wright v. Group Health Hospital, 103 Wash.2d 192, 197 (1984); see also Barrie Althoff, Ethics and the Law: Communicating With Represented Persons (2000).

Because the public defender is not adversarial to the client, RPC 4.2 does not prohibit the public defender from communicating with the client about the second matter even though the client is represented by different counsel.