Can a court-appointed criminal defense lawyer take part in a county program that pays a flat fee plus court-approved costs and routes advance payments through the lawyer's trust account?

Plain-English summary

A lawyer who accepts appointments to represent indigent criminal defendants asked whether counsel could participate in a proposed county program governing compensation and the provision of other client services, given the rules on trust accounts, independent professional judgment, and client confidences. Under the program, the county contracts with private lawyers for a flat fee plus reasonable court-approved costs (half paid at appointment, the rest at completion); in aggravated-murder death-penalty cases the lawyer is paid at a designated hourly rate against a minimum budget negotiated with the court, with funds paid into the lawyer's trust account and drawn down as the lawyer invoices the county.

The committee found no inherent conflict between the county's proposal and counsel's obligations under RPC 1.14 (trust accounts), RPC 1.8(f) (independence when a third party pays), and RPC 1.6 (confidentiality). Because the proposal includes an advance fee deposit, counsel would have to comply with the trust-account rules as to that advance. Although counsel must by statute give the court enough information to determine whether requested fees and expenses are necessary for an adequate defense, the committee saw no reason why supplying that information would, of necessity, require disclosing client confidences or secrets contrary to RPC 1.6.

Assuming for argument that confidences or secrets would need to be disclosed, the committee identified protective procedures counsel could use: ex parte and sealed pleadings as recognized in CrR 3.1, appointment of a special master, or assignment of the review to a judge other than the trial judge (citing its earlier Formal Opinions 183, 188, and 195). On the program's reference to "negotiating" a minimum budget with the trial or appointing judge, the committee said it would not understand "negotiate" to let the court impose its views of proper defense strategy on appointed counsel, or to authorize counsel's subordination of independent professional judgment to such views (RPC 1.8(f)). The committee closed by cautioning that the proposal was very general and that it was neither approving particular rules the county might adopt nor the disclosure of specific information.

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 the trust-account rule (then RPC 1.14, now RPC 1.15) and related provisions. 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 county flat-fee-plus-costs compensation program for appointed criminal defense counsel as posing no inherent conflict with the trust-account, independence, and confidentiality rules, so long as the advance deposit is handled under the trust-account rule (RPC 1.14) and the information supplied to justify fees does not breach client confidences under RPC 1.6. The opinion treats the duty of independent professional judgment as the limit on the court's role: per the opinion, "negotiating" a budget cannot extend to the court dictating defense strategy or counsel subordinating independent judgment (RPC 1.8(f)). The committee expressly declined to approve any particular rule the county might adopt or any specific disclosure.

Common questions

Q: Does a county flat-fee program for appointed criminal defense violate the trust-account, independence, or confidentiality rules?

A: The committee found no inherent conflict between the county's proposal and counsel's obligations under RPC 1.14 (trust accounts), RPC 1.8(f) (independence), and RPC 1.6 (confidentiality), on the general facts presented.

Q: How must the lawyer handle the advance fee deposit the county pays?

A: Because the proposal includes an advance fee deposit, the committee said appointed counsel would need to comply with the rules governing trust-account management as to that advance (RPC 1.14).

Q: Does justifying fees and costs to the court force counsel to reveal client confidences?

A: The committee saw no reason why providing information sufficient for the court to determine that requested fees and expenses are necessary would, of necessity, require disclosing client confidences or secrets contrary to RPC 1.6; and if disclosure were needed, it pointed to protective procedures such as ex parte and sealed pleadings under CrR 3.1, a special master, or review by a judge other than the trial judge.

Q: Can the court use the budget "negotiation" to direct the defense?

A: No. The committee said it would not understand "negotiate" to let the court impose its views of proper defense strategy on appointed counsel, or to authorize counsel's subordination of independent professional judgment, citing RPC 1.8(f).

Q: Did the committee approve the county's specific rules?

A: No. The committee cautioned that the proposal was very general and that it was neither approving particular rules the county may adopt nor the disclosure of specific information; appointed counsel must determine whether particular rules allow ethically consistent conduct.

Background and rules framework

The opinion applies three Washington rules under the pre-2006 numbering. RPC 1.14 was Washington's trust-account rule, governing safekeeping and the handling of advance fee deposits; it corresponds to Model Rule 1.15 (and is RPC 1.15 under Washington's current numbering). RPC 1.8(f) (corresponding to Model Rule 1.8(f)) addresses accepting compensation for representing a client from someone other than the client and protecting the lawyer's independent professional judgment. RPC 1.6 (corresponding to Model Rule 1.6) governs confidentiality. The committee also referenced Criminal Rule (CrR) 3.1, which recognizes ex parte and sealed procedures, and its earlier Formal Opinions 183, 188, and 195.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information)
• Model Rule 1.8(f) / Washington RPC 1.8(f) (compensation from one other than the client; independent professional judgment)
• Model Rule 1.15 / Washington RPC 1.14 (pre-2006 numbering) (safekeeping property; trust accounts)

Court rules:

• Washington Criminal Rule (CrR) 3.1 (right to and assignment of counsel; ex parte and sealed procedures)

Other opinions cited:

• WSBA Formal Opinions 183, 188, and 195 (documenting services for compensation)

See also

• WSBA Ethics Op. 1966: Flat Fees and Trust Accounts
• WSBA Ethics Op. 1838: Nonrefundable Flat Fees
• WSBA Ethics Op. 2004: Client's Past Crime and Secrecy

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1250

Original opinion text

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

Advisory Opinion: 2000
Year Issued: 2003
RPC(s): RPC 1.14, 1.8(f), 1.6, CrR 3.1, Formal Opinions 183, 188, 195
Subject: County program governing lawyer`s compensation for representation of indigent criminal defendants

The inquiring attorney asks whether it would be ethically permissible for counsel assigned to represent indigent criminal defendants to participate in a proposed county program governing counsel’s compensation and the provision of other client services, in light of RPCs governing trust accounts, independent professional judgment, and client confidences. [Editors note: The county in question contracts with private lawyers to provide indigent criminal defense. The contracts for payment of a flat fee plus reasonable court-approved costs, with half paid at appointment and the rest upon completion of the case. In aggravated murder death penalty cases, the lawyer is paid on a designated hourly rate. A minimum budget for the case through the mitigation phase is negotiated by the lawyer with the court. That amount is paid into the lawyers trust account and drawn down as the lawyer invoices the county. A similar process is used to arrive at amount for the remainder of the case. Additional amounts are negotiated with the court at the designated hourly rate.]

There appears to be no inherent conflict between the county’s proposal and the trust account, independence and confidentiality obligations of counsel under RPC 1.14, 1.8(f) and 1.6 respectively. Because the proposal includes an advance fee deposit, appointed counsel would need to comply with regulations governing trust account management with respect to the fee advance. See RPC 1.14. Although assigned counsel is required by statute to provide sufficient information for the court to determine whether requested fees and expenses are necessary to provide an adequate defense, there would seem to be no reason why providing information sufficient for this purpose would, of necessity, compel disclosure of client confidences or secrets contrary to RPC 1.6.

Assuming for the sake of argument that confidences or secrets would need to be disclosed, there are procedures that counsel could use to protect those confidences and secrets; for example, ex parte and sealed pleadings, as recognized in CrR 3.1 might be employed; appointment of a special master by the court could be sought; or assignment of such review to a judge other than the trial judge would be potential solutions. The same would seem to be true with respect to providing information adequate to document that services for which compensation is claimed have been provided. See Formal Opinions 183, 188 and 195. Finally, although the county’s proposal refers to “negotiating” a minimum budget with the trial/appointing judge, we would not understand the term “negotiate” this context to contemplate the court imposing its views of proper defense strategy on appointed counsel, or to authorize appointed counsel’s subordination of independent professional judgment to such views. See RPC 1.8(f).

We caution that the proposal we have been asked to consider is very general, and that we are neither approving particular rules that the county may adopt nor the disclosure of specific information. Appointed counsel will have to determine whether particular rules continue to allow for conduct consistent with ethical obligations and the scope of information that ethically may be provided for purposes of securing compensation and other services.