Can a criminal defense lawyer file a motion to vacate a drug conviction (after State v. Blake) for a former defendant without a current attorney-client relationship or the person's consent?

Plain-English summary

After State v. Blake (2021) struck down Washington's strict-liability drug-possession statute, convictions under the former law are void or voidable, but vacatur is not automatic; a defendant must move to vacate. The committee addressed whether a criminal defense lawyer may file such a motion on behalf of a person with a Blake-affected conviction without the person's specific knowledge and consent, and without a current attorney-client relationship, where the person cannot be located.

The committee answered no, on two independent grounds. First, a lawyer may not act on behalf of a client without a current attorney-client relationship; the question itself acknowledged that no such relationship existed. The committee relied on In re Stansfield, where a lawyer who filed a claim for a widow before receiving authorization violated former RPC 1.2(f), and noted that being well-intentioned or believing the action is in the person's best interest does not justify acting without authority. Second, even with an attorney-client relationship, a lawyer cannot act without the client's authorization; under RPC 1.2(f) a lawyer must obtain client authority to act on the client's behalf, as in In re Marshall, where filing an appeal without the clients' authorization violated the rule. So a lawyer must have the client's informed consent to seek vacatur.

The committee added that seeking vacatur is not risk-free, for example it could undermine a plea agreement that let the prosecutor pursue other dismissed charges, so proceeding without communicating with the client risks violating RPC 1.1 (competence), RPC 1.2(a) (client objectives), and RPC 1.4(a)-(b) (communication and the duty to explain so the client can make informed decisions). The committee noted limited exceptions it did not resolve: in rare circumstances a lawyer may act for a client who cannot be located under the "law or court order" exception in RPC 1.2(f) (citing WSBA AO 2225), and the State itself may move to vacate under CrR 7.8(b). It also clarified the opinion does not prevent lawyers or public defense agencies from contacting affected individuals to establish a relationship and obtain consent.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee held that a lawyer needs both a current attorney-client relationship and the client's informed consent to move to vacate a conviction, and may not proceed on a good-faith belief that vacatur serves the person's best interest. The opinion grounds the bar in RPC 1.2(f) (acting without authority) and ties the communication failure to RPC 1.1, 1.2(a), and 1.4. It leaves open the narrow "law or court order" exception in RPC 1.2(f) for an absent client and notes the State may move under CrR 7.8(b); it expressly permits outreach to affected individuals to establish a relationship and obtain consent.

Common questions

Q: Can a defense lawyer vacate a Blake drug conviction for a former client without contacting them?

A: No. The committee held a lawyer must have a current attorney-client relationship and the client's informed consent to move to vacate a conviction, so a lawyer cannot file the motion for a former, uncontacted client.

Q: Does it matter that vacatur is clearly in the person's interest?

A: No. The committee held, citing In re Stansfield, that a lawyer may not act without authority even when motivated by the client's best interest.

Q: What rules are at risk if the lawyer proceeds without the client?

A: The committee held that acting without authority risks violating RPC 1.2(f), and that proceeding without communicating also risks RPC 1.1 (competence), RPC 1.2(a) (objectives), and RPC 1.4 (communication and explanation), in part because vacatur can carry risks such as undermining a plea agreement.

Q: Can a lawyer or public defender reach out to affected people?

A: Yes. The committee clarified the opinion does not prevent lawyers or public defense agencies from contacting individuals affected by Blake to establish a lawyer-client relationship and obtain informed consent to move to vacate.

Background and rules framework

The opinion interprets Washington RPC 1.2(f) (acting as a lawyer without authority; Washington has no direct Model Rule counterpart, the closest Model Rule principle being the agency limits in Model Rule 1.2) together with RPC 1.2(a) (Model Rule 1.2(a), client objectives), RPC 1.1 (Model Rule 1.1, competence), and RPC 1.4 (Model Rule 1.4, communication). The legal backdrop is State v. Blake, 197 Wn.2d 170 (2021), and CrR 7.8(b) on motions to vacate.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.2(f) (acting as a lawyer without authority)
• Model Rule 1.2(a) / Washington RPC 1.2(a) (client objectives and authority)
• Model Rule 1.1 / Washington RPC 1.1 (competence)
• Model Rule 1.4 / Washington RPC 1.4 (communication; duty to explain)

Statutes and rules:

• Former RCW 69.50.4013 (drug possession); Washington CrR 7.8(b) (motions to vacate)

Cases:

• State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), strict-liability drug-possession statute unconstitutional
• In re Disciplinary Proceeding Against Stansfield, 164 Wn.2d 108 (2008); In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317 (2007), acting without client authority

Other opinions cited:

• WSBA Advisory Opinion 2225 (2012): continuing to represent an absent immigration client when withdrawal is denied

See also

• ABA Formal Op. 492: obligations to prospective clients
• WA Ethics Op. 2225: attorney withdrawal in immigration matters

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1714

Original opinion text

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

Advisory Opinion: 202506
Year Issued: 2025
RPC(s): 1.0A, 1.1, 1.2, 1.3, 1.4
Subject: Informed Consent Required To Vacate Criminal Convictions

Page 1 of 4 Title: Informed Consent Required To Vacate Criminal Convictions Year Issued: 202506 RPC(s): 1.0A, 1.1, 1.2, 1.3, 1.4 Summary: This advisory opinion discusses whether a criminal defense attorney needs to have a lawyer-client relationship and informed consent to vacate a drug conviction. Facts: Under former RCW 69.50.4013, possession of a controlled substance – even if unintentional and unknowing – was a felony. The Washington Supreme Court in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), held that this strict liability drug possession statute violated the due process clauses of the state and federal constitutions. As a result, such convictions are void or voidable, but orders of vacation are not automatic or self-executing. The defendant can file a motion to vacate a drug possession conviction that fell under the former drug possession law. This advisory opinion discusses whether a criminal defense lawyer may file a motion to vacate on behalf of an individual with such drug convictions, without the defendant’s specific knowledge and consent and in the absence of a current lawyer-client relationship if the defendant cannot be located. [n.1] Page 2 of 4 Short Answer: A lawyer must have a current lawyer-client relationship in order to act on behalf of a criminal defendant. Without a client’s informed consent, a lawyer lacks authority to seek to vacate a conviction. Authority: (1) A lawyer may not act on behalf of a client in the absence of a current attorney/client relationship. The question presented acknowledges the lack of an existing lawyer-client relationship. [n.2] A lawyer cannot act where there is not a client relationship. See In re Disciplinary Proceedings Against Stansfield, 164 Wn.2d 108, 187 P.3d 254 (2008) (lawyer who requested permission to represent widow who lived in Guatemala but filed a claim before receiving authorization and widow’s authorized representative hired other counsel, negligently violated former RPC 1.2(f)). Thus, a lawyer may not move to vacate a defendant’s conviction without a lawyer-client relationship. [n.3] (2) Even if a lawyer has a lawyer-client relationship, the lawyer cannot act on a client’s behalf without authorization from the client. The Washington Supreme Court has held that under RPC 1.2(f), [n.4] a lawyer must obtain client authority in order to act on the client’s behalf. In re Disciplinary Proceeding Against Marshall, 160 Wn.2d 317, 157 P.3d 859 (2007) (finding a lawyer willfully violated former RPC 1.2(f) by filing an appeal without two clients’ authorization). Accordingly, a lawyer must have the client’s informed consent to seek vacatur. [n.5] To be clear, regardless of how well-intentioned, a lawyer may not represent a client without authorization simply because the lawyer believes it is in the client’s “best interest” to do so. See Stansfield, supra, 164 Wash. 2d at 115 (fact that attorney was “motivated by a desire to protect [widow and estate] from others who might take advantage of them” did not justify acting without specific authority). Further, seeking to vacate a conviction is not without risk. For example, moving to vacate a conviction could undermine a plea agreement that allows the prosecutor to pursue other dismissed charges. Thus, representing a client Page 3 of 4 without direct communication and/or authorization also risks a violation of RPC 1.1 (competence), RPC 1.2(a) (client objectives), RPC 1.4(a) (client communication), and RPC 1.4(b) (duty to explain to allow client to make informed decisions). Without discussing the issue with the client in advance, the lawyer may be proceeding without complete information that may undermine their representation and lead to the lawyer failing to provide competent representation. Analyzing these rules, a lawyer should not seek to vacate a conviction without a current lawyer-client relationship. Further, the lawyer should only seek a vacatur of a void or voidable conviction with the client’s knowledge and consent. The lawyer who acts without client authority risks a violation of RPC 1.2(f). [n. 6] Endnotes: 1. There may be judicial or legislative solutions available which are outside the scope of this advisory opinion. 2. In a criminal defense representation where the lawyer-client relationship may cease to exist where the lawyer represented the client at one point is a fact-specific determination beyond the scope of this opinion. 3. In rare circumstances, a lawyer may represent a client who cannot be located, consistent with the known objectives of the client, pursuant to the “law or a court order” exception in RPC 1.2(f). See WSBA AO 2225 (2012) (lawyer must continue to represent absent immigration client, consistent with the known objectives of the client, if a judge denies withdrawal motion); see also Comment [17] to RPC 1.2 (RPC 1.2(f) does not prohibit a lawyer from acting when ordered to continue representation by a tribunal). It is beyond the scope of this Advisory Opinion to comment on the extent to which a lawyer may act to vacate a criminal conviction on behalf of an absent former client under the “by law” or “court order” exceptions of RPC 1.2(f), where the client has not had an opportunity to communicate and give informed consent to the representation. 4. RPC 1.2(f) provides: A lawyer shall not purport to act as a lawyer for any person or organization if the lawyer knows or reasonably should know that the lawyer is acting without the authority of that person or organization, unless the lawyer is authorized or required to so act by law or a court order. Comment [15] to RPC 1.2(f) notes: Acting as a Lawyer Without Authority [15] Paragraph (f) was taken from former Washington RPC 1.2(f), which was deleted from the RPC by amendment effective September 1, 2006. The mental state has been changed from Page 4 of 4 “willfully” to one of knowledge or constructive knowledge. See Rule 1.0A(f) & (j). Although the language and structure of paragraph (f) differ from the former version in a number of other respects, paragraph (f) does not otherwise represent a change in Washington law interpreting former RPC 1.2(f). 5. The ethics rules do not prohibit the State from moving to vacate a judgment affected by Blake. “[T]he State generally has the authority to move to vacate a judgment under CrR 7.8 (b).” State v. Hall, 162 Wash. 2d 901, 905, 177 P.3d 680, 682 (2008). 6. This opinion does not prevent lawyers or public defense agencies from contacting individuals impacted by the Blake decision to establish a lawyer-client relationship and obtain informed consent to move to vacate a judgment.