Under a county public-defense contract, must the contract specify a fair and reasonable amount for investigation costs, including routine ones?

Plain-English summary

The inquiry concerned a lawyer paying the costs of routine investigation services under a county public-defender contract. The committee noted that under its rules of procedure it does not generally opine on past conduct and would not do so, and that it was not in a position to assess the reasonableness of the funding in a public-defender services contract or to involve itself in the negotiation of such a contract's terms. Because future conduct also appeared to be implicated, however, the committee advised that RPC 1.8(m)(1)(ii) requires a contract that, among other things, specifically designates a fair and reasonable amount for the costs of all investigation services, whether extraordinary or not.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee limited itself to the forward-looking requirement of RPC 1.8(m)(1)(ii). The opinion holds that a public-defense contract must specifically designate a fair and reasonable amount for the costs of all investigation services, and that this covers routine investigations, not only extraordinary ones. The committee declined to evaluate the inquirer's past conduct or to judge whether a particular contract's funding level is adequate, treating those as outside its role.

Common questions

Q: Must a public-defense contract address routine investigation costs, or only extraordinary ones?

A: All of them. The committee concluded RPC 1.8(m)(1)(ii) requires the contract to specifically designate a fair and reasonable amount for the costs of all investigation services, whether extraordinary or not.

Q: Will the committee say whether a particular contract's funding is adequate?

A: No. The committee said it is not in a position to assess the reasonableness of funding in a public-defender services contract or to involve itself in negotiating such a contract's terms.

Q: Did the committee rule on the lawyer's past conduct?

A: No. The committee said that under its rules of procedure it does not generally opine on past conduct and declined to do so, addressing only the implicated future conduct.

Background and rules framework

The opinion interpreted Washington RPC 1.8(m)(1)(ii) (the Washington-specific provision under Model Rule 1.8 governing public-defense contracts), focusing on its requirement that such a contract specifically designate a fair and reasonable amount for the costs of investigation services. The committee applied only that prospective requirement, declining to assess funding adequacy or past conduct.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.8(m)(1)(ii) (public-defense contracts; designating fair and reasonable investigation costs)

See also

• WA Ethics Op. 2185: disclosing dependency-case results to a funding agency
• WA Ethics Op. 2204: post-verdict communication with jurors

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1655

Original opinion text

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

Advisory Opinion: 2208
Year Issued: 2010
RPC(s): 1.8(m)(1)(ii)
Subject: Lawyer paying costs of routine investigation services under county contract

Under its rules of procedure, the RPC Committee does not generally opine on past conduct, and will not do so here. Moreover, the Committee is not in a position to assess the reasonableness of the funding in a contract for public defender services or to involve itself in the negotiations over the terms of such a contract, and declines to do so here. However, because future conduct also appears to be implicated in the inquiry, the Committee is in a position to advise the inquiring lawyer that RPC 1.8(m)(1)(ii) requires a contract that, among other things, specifically designates a fair and reasonable amount for the costs of all investigations services, whether extraordinary or not.