SCOPE

As amended through August 27, 2024

SCOPE

[14] The Rules of Professional Conduct for LLLTs are rules of reason. They should be interpreted with reference to the purposes of legal representation (within the LLLT's authorized scope of practice) and of the law itself. Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define proper conduct for purposes of professional discipline. Others, generally cast in the term "may" are permissive and define areas under the Rules in which the LLLT has discretion to exercise professional judgment. No disciplinary action should be taken when the LLLT chooses not to act or acts within the bounds of such discretion. Other rules define the nature of relationships between the LLLT and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define an LLLT's professional role. Many of the Comments use the term "should." Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.

[15] The Rules presuppose a context in which the LLLT's role has been or will be shaped. That context includes court rules relating to matters of licensure, laws defining specific authorization and obligations of LLLTs, and substantive and procedural law in general. The Comments are sometimes used to alert LLLTs to their responsibilities under such other law.

[16] Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by lawyer, client, peer, and public opinion, and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform an LLLT, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law within the authorized scope of an LLLT's practice.

[17] For purposes of determining the LLLT's authority and responsibility, principles of substantive law external to these Rules determine whether a client-LLLT relationship exists. Most of the duties flowing from the client-LLLT relationship attach only after the client-LLLT relationship is formed. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the LLLT agrees to consider whether a client-LLLT relationship shall be established. See Lawyer RPC 1.18 and Washington Comment [11] thereto. Whether a client-LLLT relationship exists for any specific purpose can depend on the circumstances and is a question of fact.

[18] [Reserved.]

[19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of an LLLT's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that an LLLT often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors, and whether there have been previous violations.

[20] Violation of a Rule should not itself give rise to a cause of action against an LLLT, nor should it create any presumption in such a case that a legal duty has been breached. The Rules are designed to provide guidance to LLLTs and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. The fact that a Rule is a just basis for an LLLT's self-assessment, or for sanctioning an LLLT under the administration of a disciplinary authority, does not imply that a party who is adverse to an LLLT's client in any proceeding or transaction has standing to seek enforcement of the Rule. Nevertheless, since the Rules do establish standards of conduct by LLLTs, an LLLT's violation of a Rule may be evidence of breach of the applicable standard of conduct.

[21] The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Comments are intended as guides to interpretation, but the text of each Rule is authoritative.

Additional Washington Comments (22 - 25)

[22] Nothing in these Rules is intended to change existing Washington law on the use of the Rules of Professional Conduct in a civil action, see Hizey v. Carpenter, 119 Wn. 2d 251,830 P.2d 646 (1992), or to suggest how that law applies to the obligations of LLLTs. See alsoAPR 28(K)(1).

[23] The Rules of Professional Conduct for LLLTs are modeled on Washington's Rules of Professional Conduct for lawyers (Lawyer RPC). The structure of these Rules, like the Lawyer RPC, generally parallels the structure of the American Bar Association's Model Rules of Professional Conduct. When an entire provision that appears in the Lawyer RPC is deleted for purposes of these Rules, the deletion is signaled by the phrase "Reserved." The reservation of a rule or portion of a rule that appears in the Lawyer RPC does not necessarily mean that the conduct of an LLLT in that area is unregulated; the conduct may be regulated under APR 28 or another rule. Should a situation arise where a rule or portion of a rule is reserved but the counterpart rule in the Lawyer RPC addresses the conduct, the LLLT should look to the relevant Lawyer RPC and comments to that rule for guidance. In general, when a Rule has a counterpart in the Lawyer RPC, the comments to that Lawyer RPC may be looked to as a guide to interpretation of that Rule to the extent that both the Lawyer RPC and the LLLT RPC are substantially similar and the content of the comments is applicable to the conduct of an LLLT.

[24] Comment [18] of Scope is reserved. The corresponding Comment of the Lawyer RPC relates to the specific role and authority of certain lawyers in government service, and is not applicable to the professional role of an LLLT.

[25] The Fundamental Principles of Professional Conduct and the Preamble and Scope sections of these Rules were adapted from the corresponding parts of the Lawyer RPC with only minor modifications. These provisions express the role of an LLLT as a legal professional acting within the justice system. With the exception of the reservation of Comment [18], modifications relate to the limited scope of an LLLT's license to deliver legal services, and the corresponding limitations on the role that an LLLT will have in the development of certain aspects of the legal profession, such as advocacy and development of the common law.