COLUMN > From the Spindle
BY BRYAN HARNETIAUX
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Lawyer Disciplinary Proceeding and Standard for Determining “Knowing” Violation of Rules of Professional Conduct (RPC)
In In re Cross (slip op. #201, 993-5, decided Dec. 23, 2021), on review of a lawyer disciplinary proceeding, the Washington Supreme Court affirmed the Washington State Bar Association Disciplinary Board (Board) determination that lawyer Geoffrey Cross’s unauthorized disclosure of information relating to a former client was “knowing” rather than “negligent,” and upheld a nine-month suspension imposed by the Board.
Cross was charged with violating RPC 1.9(c)(2) (limitation on revealing information relating to former clients) and RPC 1.6(a) (limitation on revealing information relating to clients generally), by disclosing information about the former client to that client’s adverse party in a civil action. Cross, slip op. at 1-2. In the contested proceeding, the hearing officer determined that Cross’s disclosures were negligent in nature and imposed a sanction of reprimand. See id. at 7-8.11 Cross made no claim that his former client had consented to disclosure of the information he revealed. See Cross, slip op. at 6. While the Board adopted the hearing officer’s findings of fact, it reversed its determination that Cross acted negligently, instead concluding that his actions constituted “knowing” conduct. This conclusion triggered a presumptive sanction of suspension, and, after considering underlying aggravating and mitigating factors, the Board imposed the nine-month suspension. See id. at 8-9, 16. Cross appealed to the Washington Supreme Court. See id. at 9.
On review, the Supreme Court described the threshold issue as “whether Cross’s purposeful disclosure of this information to the adverse party should be considered ‘negligent,’ rather than ‘knowing,’ because Cross did not realize that the RPCs barred such disclosure.” Id. at 2.22 The court framed the overall inquiry as follows: “The crucial question in this case is whether Cross acted knowingly, thus warranting a presumption of suspension (whether or not his violation caused potential injury), or whether Cross acted negligently with potential injury, thus warranting a presumption of reprimand.” Cross, slip op. at 11. In a unanimous opinion authored by Justice Gordon McCloud, the court agreed with the Board’s determination that Cross had knowingly violated the two RPCs, and, after conducting its own review of the record on aggravating and mitigating factors, upheld the nine-month suspension. See id. at 2, 22.
Relying on American Bar Association standards, the court determined that for a lawyer to violate an RPC “knowingly” it is not necessary that the lawyer have actual knowledge of the violation. A knowing violation occurs if the lawyer knew or should have known that the conduct violated an ethical rule. See id. at 14-16.33 The court also noted that a lawyer’s duty of non-disclosure is not limited to “confidences,” but encompasses “all information relating to the representation, whatever its source.” Cross, slip op. at 14 (quoting RPC 1.6 cmt.) It concluded that the information revealed in this particular case, involving the pros and cons of filing a civil lawsuit, was privileged and confidential in nature. See id. at 14. This standard places upon lawyers faced with a potential ethical dilemma an affirmative duty to investigate fully the relevant RPCs in charting a course of action:
Cross knew that he was providing a declaration with “information relating to the representation” of his client to his client’s adversary—a serious act that would cause any reasonable lawyer to at least pause and look up the rules on former client disclosures.
Id. at 16.
Regarding the sanction for Cross’s misconduct, the court concluded that in light of the knowing violation, and its own assessment of the aggravating and mitigating factors, imposition of a nine-month suspension was appropriate. See id. at 16-22.
Admissibility of a Criminal Defendant’s Incriminating Cell Phone Text Messages Based Upon Recipient’s Consent
In State v. Bowman (slip op. #99062-0, decided Nov. 10, 2021), the Supreme Court was asked to decide whether, in a criminal prosecution for possession of methamphetamine with intent to deliver, law enforcement officers could legitimately access text messages from the defendant based upon the consent of the recipient of the messages, without obtaining a search warrant. Previously, in reversing a felony drug conviction, the court had held in State v. Hinton, 179 Wn.2d 862 (2014), that a criminal defendant whose text messages were seized on the recipient’s cell phone without a search warrant (or the recipient’s consent) could challenge the search under Washington Constitution Art. I, § 7, for violation of defendant’s private affairs. See Bowman, slip op. at 1-2, 10-11; see also Hinton, 179 Wn.2d at 882 (Johnson, J. concurring).
In Bowman, the court considered whether to extend Hinton to prohibit law enforcement from using information obtained from a consensual search of recipient’s cell phone in order to engage in a text message exchange on a different cell phone between the defendant and an undercover agent posing as the recipient. See Bowman, slip op. at 2. At trial, Bowman unsuccessfully sought to suppress evidence of the exchange, and was convicted. Bowman appealed the conviction, urging that the text message evidence was inadmissible under both Washington Constitution, Art. I § 7, and the Fourth Amendment to the United States Constitution. The Court of Appeals reversed the conviction based upon its reading of Hinton, and the Supreme Court granted the state’s petition for review. See Bowman, slip op. at 5-6.
The Supreme Court upheld use of the text message exchange under both the state and federal constitutions, and affirmed Bowman’s conviction. In a five-justice majority opinion, authored by Justice Stephens, the court held:
We reverse the Court of Appeals and reinstate Bowman’s conviction. While our decision in Hinton recognizes that an individual retains a privacy interest in text messages sent to a known associate’s cell phone, it does not bar police ruses that capitalize on lawfully obtained information. Here, [the recipient of the messages] consented to the search of his cell phone, and law enforcement acted with authority of law in viewing Bowman’s text messages on [the recipient’s] phone. The ruse that followed … did not violate Bowman’s privacy rights.
Bowman, maj. op. at 24. The majority explained that “[w]hile Bowman retained a privacy interest in the text messages he sent to [the recipient], [the law enforcement officer] acted with authority of law in viewing the text messages based on [the recipient’s] consent to search that phone. The ruse that followed simply capitalized on validly obtained information and did not intrude on Bowman’s private affairs.” Id. at 7-8.44 The majority also rejected other constitutional challenges to the admissibility of the text exchange evidence, and altered Bowman’s sentence in one respect by striking a discretionary supervision fee imposed by the trial court. See id. at 18-24.
A four-justice concurrence, authored by Justice Yu, agreed with the majority’s disposition of the case, but was careful to “emphasize that we are distinguishing this case from Hinton on a factual basis without disturbing its legal analysis … and the result here should not be misconstrued as a retreat from our strong commitment to Hinton’s protections.” Bowman, Yu, J., concurrence at 12. This concurrence seems to be based upon perceived limitations in the record and the issues raised by Bowman on review. For example, the concurrence noted:
While it is possible that such authority of law could be obtained with proper consent or a warrant, I doubt that it is present here. It is clear that [the recipient’s] consent to [the law enforcement officer] searching his phone cannot, in itself, provide sufficient authority of law for [the law enforcement officer] to assume [recipient’s] identity because “[a] consensual search may go no farther than the limits for which the consent was given.”
Id. at 16-17 (citation omitted). Nevertheless, the concurrence concluded that “given the limitations of the facts and issues presented in this case, we could not hold that [the law enforcement officer] violated Bowman’s article I section 7 rights. However, this issue, and many other related issues, will likely require further consideration if such investigatory tactics continue to be used in Washington.” Id. at 17.55 What Justice Yu seems to be alluding to is the absence of any argument by Bowman that the recipient’s consent did not contemplate that the text message exchange would be used as a basis for the ensuing ruse by the law enforcement officer, posing as the recipient. See Bowman, Yu, J., concurrence at 7, 9, 12-13, 15-17.
While both Bowman and Hinton address the issue of a participant’s privacy interests in text message exchanges in a criminal context, it is worth considering the potential application of the law developed in these cases in the civil realm.
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What is a ‘Spindle?’
To this day, in the Temple of Justice hallway between the clerk’s office and the courtroom, there’s a spindle on top of a wooden lectern where on any Thursday the Supreme Court’s newly issued opinions are placed for public viewing. This is the paper version of the “slip opinion” of the court. In the “old days,” before the internet, the press and media, or members of the public, would have to check the spindle to quickly access the latest decisions from the court. Although we now all have near-instant access to the court’s decisions via cyberspace, for reasons that seem more ceremonial than practical, the spindle remains—a small relic and enduring symbol of the open administration of justice. Caveat: This column is based on slip opinions of the court, which are not necessarily the court’s final decisions and are subject to change; the official opinions of the court are those published in the Washington Reports.
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Washington Supreme Court slip opinions are available at www.courts.wa.gov/opinions/.
1. Cross made no claim that his former client had consented to disclosure of the information he revealed. See Cross, slip op. at 6.
2. The court framed the overall inquiry as follows: “The crucial question in this case is whether Cross acted knowingly, thus warranting a presumption of suspension (whether or not his violation caused potential injury), or whether Cross acted negligently with potential injury, thus warranting a presumption of reprimand.” Cross, slip op. at 11.
3. The court also noted that a lawyer’s duty of non-disclosure is not limited to “confidences,” but encompasses “all information relating to the representation, whatever its source.” Cross, slip op. at 14 (quoting RPC 1.6 cmt.) It concluded that the information revealed in this particular case, involving the pros and cons of filing a civil lawsuit, was privileged and confidential in nature. See id. at 14.
4. The majority also rejected other constitutional challenges to the admissibility of the text exchange evidence, and altered Bowman’s sentence in one respect by striking a discretionary supervision fee imposed by the trial court. See id. at 18-24.
5. What Justice Yu seems to be alluding to is the absence of any argument by Bowman that the recipient’s consent did not contemplate that the text message exchange would be used as a basis for the ensuing ruse by the law enforcement officer, posing as the recipient. See Bowman, Yu, J., concurrence at 7, 9, 12-13, 15-17.