HB1891 creates a new civil cause of action against criminal defense counsel in limited circumstances. A person injured by an individual who had previously been arrested for a violent offense and was later released before trial may sue that person’s defense attorney if the release and resulting injury are alleged to have occurred because counsel advocated for release without adequately considering the risk of public harm. The bill defines “criminal defense counsel” broadly to include attorneys licensed in Washington who represent people accused of or charged with violent offenses, and it ties “violent offense” to existing Washington law.
The bill sets out what a court must consider in determining whether counsel adequately considered the risk, including a written and published assessment of the accused person’s criminal record, risk of future violence, vulnerability of prior or likely future victims, and the adequacy of alternatives to custody. It also states that no legal immunity may be used as a defense, authorizes actual damages, nominal damages, costs, attorney’s fees, declaratory relief, and injunctive relief, and imposes personal liability on defendants found to have intentionally, knowingly, or recklessly disregarded the risk of public harm. The action must be brought within three years of accrual, and the bill applies only to causes of action arising on or after its effective date.
The bill also amends existing state provisions governing defense and indemnification of state and local officers, employees, volunteers, and foster parents. In general, it preserves existing defense and indemnity rules for public officials acting in good faith within the scope of their duties, but it adds language preventing the state or local governments from paying certain costs or judgments in actions brought under the new section when the defendant is found to have acted with the specified disregard for public harm. It further provides that judgments for nonpunitive damages in certain government-defense contexts are to be satisfied only from the governmental entity, while preserving existing procedures for defense and payment approvals in other cases.
The overall sentiment reflected by the bill text is strongly protective of public safety and victims, with the legislation framed as a remedial measure intended to hold defense counsel accountable when advocacy for release allegedly leads to serious harm. Because there are no committee transcripts or recorded votes provided, there is no direct evidence of support or opposition from legislators in the available materials. The structure and findings embedded in the bill suggest an intent to narrow immunity and expand liability, which would likely be controversial among criminal defense attorneys and civil liberties advocates.
The main point of contention is the bill’s departure from traditional protections for attorneys acting within the scope of representation. Critics would likely focus on the elimination of immunity, the potential chilling effect on zealous defense advocacy, and the difficulty of proving that counsel failed to adequately consider risk or acted with reckless disregard. Supporters would likely emphasize accountability, victim protection, and the need to prevent foreseeable harm when a violent offender is released before trial.
HB1891 would create a new chapter in Title 4 RCW establishing a new tort remedy against criminal defense counsel and would amend existing RCW provisions on state and local defense/indemnification to account for claims brought under that new chapter. It would expose certain defense attorneys to personal liability, damages, fees, and injunctive relief, while limiting the ability of public entities to cover defense costs or judgments in specified circumstances. The bill would also affect how courts evaluate release-related advocacy in violent-offense cases by requiring consideration of risk-assessment factors and by expressly rejecting immunity defenses.
The bill’s tone is strongly pro-public-safety and victim-centered, and it appears designed to respond to concerns about violent offenders being released before trial. Because no committee testimony or votes are included, there is no recorded legislative debate to gauge formal support or opposition. Based on the text alone, the measure seems likely to draw a polarized response: support from those prioritizing accountability and prevention of harm, and opposition from those concerned about attorney independence, due process, and the chilling effect on criminal defense representation.
The central controversy is whether criminal defense counsel should face civil liability for advocating pretrial release when a released person later causes injury. Opponents would likely argue that the bill undermines the adversarial system, conflicts with longstanding immunity principles, and may discourage attorneys from making lawful release arguments on behalf of clients. Supporters would likely argue that attorneys should be accountable when they allegedly ignore obvious risks to public safety and that victims deserve a remedy when foreseeable harm follows release advocacy. The bill’s removal of immunity and its requirement that counsel have “adequately considered” public-harm risk are the most contentious features.