Can a deputy prosecuting attorney do pro bono legal work?

Plain-English summary

A deputy prosecuting attorney asked how proposed RPC 6.1, on pro bono work, would affect deputy prosecutors in Washington, and whether RCW 36.27.060 allows deputy prosecutors to do pro bono work. The committee said the RPC in question was a proposed rule only, not yet adopted by the Supreme Court and not yet in effect; because the committee's purpose is to advise members on the propriety of their conduct under the Rules of Professional Conduct, an inquiry directed at a proposed rule was outside the matters it may consider. The committee added that the question about the Revised Code of Washington raised a legal question also beyond its purview.

By way of clarification of a previous letter, the committee added that there is no reason under RPC 1.6 why a deputy prosecuting attorney cannot do conflict-free pro bono work. It said again that it could not opine on whether such work would violate RCW 36.27.060 or any other ordinance or statute.

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 adopted the current RPC 6.1 on voluntary pro bono service). 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 Treat this page as historical context, not current guidance.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 the deputy prosecutor's questions about proposed RPC 6.1 and about RCW 36.27.060 as outside its purview, the first because the rule was only proposed and not yet in effect, the second because it was a legal question. Per the opinion's clarification, there is no reason under RPC 1.6 why a deputy prosecuting attorney cannot do conflict-free pro bono work; the committee expressly did not opine on whether such work would violate the statute or any ordinance.

Common questions

Q: Does anything in the ethics rules stop a deputy prosecutor from doing pro bono work?

A: The committee said there is no reason under RPC 1.6 why a deputy prosecuting attorney cannot do conflict-free pro bono work.

Q: Did the committee decide whether a state statute allows a deputy prosecutor to do pro bono work?

A: No. The committee said the question about RCW 36.27.060 raised a legal question beyond its purview, and that it could not opine on whether such work would violate that statute or any other ordinance or statute.

Q: Why didn't the committee analyze proposed RPC 6.1?

A: The committee said RPC 6.1 was a proposed rule only, not yet adopted by the Supreme Court and not in effect, so an inquiry directed at it was outside the matters the committee may consider.

Background and rules framework

The inquiry concerned proposed RPC 6.1 (corresponding to Model Rule 6.1, voluntary pro bono service), which had not yet been adopted in Washington when the opinion issued, and RCW 36.27.060, a statute on the duties of deputy prosecuting attorneys. The committee confined its substantive response to RPC 1.6 (corresponding to Model Rule 1.6, confidentiality), stating that nothing in it bars a deputy prosecutor's conflict-free pro bono work, and declined to address the proposed rule and the statute.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information)
• Model Rule 6.1 / proposed Washington RPC 6.1 (voluntary pro bono service; not yet adopted at the time, and not analyzed by the committee)

Statutes:

• RCW 36.27.060 (deputy prosecuting attorneys) (the committee declined to opine on it as a legal question)

See also

• WSBA Ethics Op. 1217: Pro Bono Volunteers' Conflicts
• WSBA Ethics Op. 1289: Pro Bono Adverse to Firm Clients
• WSBA Ethics Op. 1542: Prosecutor and Civil Forfeiture

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1255

Original opinion text

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

Advisory Opinion: 2002
Year Issued: 2003
RPC(s): RPC 6.1
Subject: pro bono work by deputy prosecuting attorney

(1)The inquirer, who is a deputy prosecuting attorney asks how the provisions of proposed RPC 6.1, regarding pro bono work, would affect deputy prosecutors in Washington and whether RCW 36.27.060 allows deputy prosecutors to do pro bono work.

The RPC in question is a proposed rule only at this time. The purpose of the committee is to advise members of the Bar upon the propriety of their conduct under the Rules of Professional Conduct. Since the inquiry is directed at a proposed rule, not yet adopted by the Supreme Court and not yet in effect, the inquiry is outside the purview of matters the committee may consider. The inquiry concerning the Revised Code of Washington raises a legal question that is also beyond the purview of the committee.

(2) By way of clarification of our previous letter, the following is offered: there is no reason under RPC 1.6 why a deputy prosecution attorney cannot do conflict-free pro bono work. We may not opine as to whether or not such work would violate RCW 36.27.060 or other ordinance or statute.