206.623.0068 | www.HilyerADR.com
Former trial lawyer and King County Superior Court Judge Bruce Hilyer
proudly announces the formation of Hilyer Dispute Resolution to serve those
that want efficient case resolution through mediation and arbitration.
• 35 years of experience as trial lawyer, King County Superior
Court Judge and neutral mediator/arbitrator.
• Distinguished performance record and reputation for balancing
creative thinking with real world practicalities.
• A diligent, inclusive and thoughtful approach to resolution of each case.
H DR
HILYER DISPUTE RESOLUTION
its in-house counsel from establishing
a part-time office in the jurisdiction.
(See comments 4 and 17 to RPC 5. 5).
But what other work-related routines
should be considered non-temporary?
RPC 5. 5(d) and its comments do
not resolve this ambiguity. In-house
counsel relying on RPC 5. 5(d) or any
other “temporary practice” exception
should avoid establishing permanent
offices and may want to also avoid
overtly fixed work routines outside the
home state. In states without a variant of Model Rule 5. 5(d), counsel must
carefully review the other available
temporary practice exemptions and
see if their anticipated legal work can
fit under one or more of them.
House Counsel Registration
Fortunately, many states are adopt-ing non-temporary solutions that free
in-house counsel to serve their multi-jurisdictional clients without these am-biguities, and to do so from a part-time
office with family pictures and other
personal touches.
In Washington, in-house counsel
have two options: 1) Admission by
Motion (whether in-house counsel or
private practice) as a fully licensed attorney under APR 3(c) if the attorney
has practiced three out of the last five
years or 2) a “limited house counsel
license” under APR 8(f). Oregon has a
similar program, Attorney Admission
Rule 16.05.
The license fees and MCLE requirements for “house counsel” admission
are the same as for fully licensed attorneys and, unfortunately, not all house
counsel admission rules are equally
useful. California’s In-House Counsel
Rule 9. 6, for example, requires the attorney to be a California resident.
CONFLICTS OF INTEREST
In-house counsel working on transactions must recognize the trips and traps
lurking in conflicts rules RPC 1. 7 and
RPC 1. 8. Conflicts can arise 1) between
clients, 2) between clients and non-clients who “subjectively believe” they
are clients, and 3) between the attorney
and the client.
Multiple Representation Conflicts
Regarding potential conflicts between
organizational clients who both want
the attorney to represent them in a
transaction, a key question will be
whether the clients’ interests are “an-
tagonistic” or “fundamentally aligned.”
See comments 28 and 29 to RPC 1. 7.
In general, affiliated clients are more
likely to be aligned where one owns
the other outright or they are under
common ownership. Conflicts between
such entities are more likely to be “con-
sentable.”
Trickier conflicts issues arise be-
tween affiliates where there is not
100 percent ownership alignment. As
comment 29 to RPC 1. 7 says, “In some
situations, the risk of failure is so great
that multiple representation is plainly
impossible.” Where antagonism is
possible, the risks must be acceptable;
where it’s already present, representa-
tion is unwise. If clients with a consent-
able conflict want to go ahead, all risks
must be clearly detailed in a thoughtful
written consent per RPC 1. 7(b)( 4).
