(dissenting) — The majority’s cavalier approach to this case is well illustrated by its characteriza*845tion that this is “simply a dispute between attorneys and clients regarding the right to attorneys’ fees.”
No characterization can obscure the fact that what this case actually involves is the secret acceptance of $802,814.16 by the highest legal officer of the state and his deputy. These funds were received without the knowledge, consent or approval of any of the antitrust litigants. This violates the canons of ethics and the attorneys’ oath of office.
This court has an opportunity to interpret and affirm the high fiduciary duties of lawyers, but the majority largely avoids the issues by reliance on a highly technical appellate rule.
While the 6-month trial, represented by about 13,000 pages of testimony, resulted in many legal questions being raised on appeal there is only one core issue and that is whether a lawyer can share fees without the knowledge, consent and approval of his client. The canons and the authorities all say no. The majority stands alone in saying yes.
Public respect for the legal profession will be no higher than the ethical standards which are demanded of each lawyer. Moreover, it cannot be forgotten that we are here reviewing the professional conduct of our highest elected legal officer, an attorney chosen to represent all Washington citizens, the Attorney General. Thus, the entire legal profession is under scrutiny in this litigation, for “if. gold rust, what shall poor iron do?” Chaucer, The Canterbury Tales, The Prologue. At issue is the fundamental nature of a lawyer’s fiduciary duty to his client. Standing alone, the concession by the former Attorney General and his assistant that they received $802,814.16 in private funds during their employment by the state coupled with the contention that their nonstate “clients” knew nothing of such compensation leaves no doubt as to the immense public significance of the court’s decision herein. By ignoring much of the uncontroverted testimony and by relying on a highly tech*846nical procedural rule, the majority puts its stamp of approval on conduct which so clearly violates the fiduciary duties of a lawyer that it should be so held as a matter of law. The sanctity of a jury verdict is used by the majority to obscure the major issue in the case. The majority’s recitals of what the jury could have believed do not justify the verdict if there should have been a contrary ruling as a matter of law, or if the jury instructions contained error. I believe both errors occurred as to O’Connell and Faler.
It is appropriate to set forth additional operative facts before discussing the legal theories upon which I base my dissent.
In his capacity as Attorney General, John J. O’Connell learned of federal action concerning price fixing among electrical equipment manufacturers. In pursuit of possible antitrust litigation, a meeting of representatives of various municipal corporations was called by O’Connell and held on January 5, 1961, in the Attorney General’s office. A memo summarizing that meeting was mailed to various municipalities. It contains these summaries:
It was agreed by the group that each representative would bring before his local legislative body the need for authorization to the Attorney General to act for and on behalf of the municipality as legal counsel . . .
(Italics mine.) Attached thereto was a sample ordinance which included the following language:
An Ordinance pertaining to the recovery of certain claims; empowering the Attorney General of the state of Washington to act for and on behalf of (city or P.U.D.) in the recovery of those claims; . . .
The Attorney General of the State of Washington has commenced the preliminary study necessary to institute action on behalf of the state of Washington and this (city or P.U.D.) believes that it is in the public interest that all affected municipalities join with the Attorney General in such action.
[I]t is believed that (city or P.U.D.) should join with other affected municipalities in authorizing the Attorney *847General to act as their legal counsel for this purpose, in order to consolidate efforts and minimize the expense.
. . . The Attorney General of the state of Washington, together with the members of his staff, are appointed and empowered as special counsel, to act for and on behalf of the [municipality] . . .
It is uncontroverted that there was absolutely no express disclosure to the various plaintiffs that O’Connell and his deputy Faler were to share fees with Alioto, who was ultimately engaged to prosecute the cases. O’Connell received $530,401.05 and Faler received $272,413.11.
O’Connell argues that he was acting as a private attorney and that the municipalities must have known that he was representing them as such because he could not legally represent them as the Attorney General. But the pertinent question is not whether in retrospect this court agrees that O’Connell could not legally represent the nonstate plaintiffs as Attorney General in the antitrust litigation; rather, the question is whether those plaintiffs believed that O’Connell was representing them in his capacity as Attorney General.
The documents in evidence created the overwhelming impression that O’Connell was acting as Attorney General in behalf of all plaintiffs. All correspondence was on the letterhead of the Attorney General, signed by O’Connell as Attorney General or Faler as Assistant Attorney General. Representative contents are revealing; for example, a letter on September 27,1961, to each public entity said, in part:
It seemed then, as it does now, that as a matter of public policy the state was perhaps in the best position to assume the responsibility for coordinating these efforts . . . From now on we are prepared to continue to offer our services in assisting the coordination of litigation in the same way as in the past. We are not prepared to assume responsibility for representing the total interests of all of the public entities desiring to participate in such a joint venture.
When the complaint was filed in federal court, it was verified by O’Connell, under oath, as follows:
That he is the Attorney General of the State of Washing*848ton, one of the plaintiffs herein, and as such has been authorized to sign all pleadings for and on behalf of all parties plaintiff.
(Italics mine.)
By letter dated August 28, 1962, Alioto was retained. The letter was on the Attorney General’s stationery and signed by O’Connell as Attorney General. Copies were sent to all of the members of the Washington Utilities Antitrust Group (WUAG).
The understanding of various municipalities is reflected in correspondence. For example, the attorney for a PUD wrote O’Connell, as Attorney General, with the following comments:
The commissioners . . . asked me to indicate to you their sincere appreciation of your efforts . . . and the rest of your staff ... It has occasioned quite a load for your office . . .
(Italics mine.) In another instance a city utility wrote to O’Connell to express appreciation for the fine work done “by your office ” (Italics mine.) In still another letter from Faler to one of the utilities it was said:
John J. O’Connell agreed to undertake coordination of the case on behalf of all concerned and to assign a portion of his staff to the endeavor.
The state auditor’s report on the WUAG activities contains these statements:
The Attorney General provided leadership and coordinated operations of this group. The Washington Utilities Group (WUAG), which acted as liaison between the litigants and Joseph L. Alioto, was operated as a section of the consumer protection division of the Attorney General’s office from June 1961 to June 1965.
This view is consistent with the beliefs of the Assistant Attorney General originally heading the Attorney General’s antitrust division when the litigation was being organized. He testified that he believed that the Attorney General was only representing the State of Washington and acting as a coordinator for the other agencies. He had no *849knowledge that O’Connell or Faler considered that they were acting as private attorneys or that there was to be any fee sharing.
At a meeting with the Tacoma Utility Board, O’Connell urged the hiring of Alioto. E. K. Murray, veteran Tacoma lawyer and a member of the utility board, testified that O’Connell insisted that he, as Attorney General, had the right to run the entire lawsuit. Murray said:
Nothing at all was said about him acting in any private capacity for us . . . He couldn’t be our attorney in any private capacity without our having engaged him to act as such, there had been no discussion or even suggestion of that kind. In fact, he was arguing that he had a right to run the case without our say.
An attorney representing four of the public utility districts testified that at no time were there any discussions with O’Connell or Faler with regard to their being retained as attorneys for his client, even though O’Connell insists that he was acting in that capacity. Another PUD attorney said that the Attorney General ran the WUAG, that he was the executive officer and specifically that “he voluntarily assumed this chore and placed his man in charge and we just relied on him totally.”
As late as 1963 the Attorney General’s office was still referring to its coordinating efforts. When the first case was settled, the Attorney General’s office issued a news release stating in part:
Attorney General John J. O’Connell announced today the first out of court settlement in a series of lawsuits . . . Upon recommendation of the Attorney General’s office the port commissioners formally accepted a settlement . . . The Attorney General’s office is coordinating the series of lawsuits. Ernest Ingram of the firm of attorneys for the Port of Grays Harbor represented the Port in its suit in settlement negotiations in cooperation with O’Connell’s office.
(Italics mine.)
An interesting and revealing event occurred in federal district court. At a pretrial conference shortly before the *850Grant County PUD trial, Mr. Alioto asked permission of District Court Judge Boldt to have O’Connell seated at the counsel table during trial. Objection was made by defense counsel to this since the State had been dismissed as a party plaintiff. Judge Boldt stated that if O’Connell were at counsel table the judge would have to admonish the jury and make it plain that the State had no interest and they were not to so infer from the fact that O’Connell was participating. Not even a suggestion was made that O’Connell was there as a private attorney or representing other plaintiffs because the request was dropped or withdrawn and O’Connell did not appear at the trial.
O’Connell could recall no other instance in his 12 years as Attorney General of engaging in private practice.
Turning now to the events in 1965, we must examine the circumstances whereby the total fee limitation of $1 million, contained in the original agreement, was removed from the 1962 agreement. That original 1962 agreement provided a 15 percent contingent fee with a total maximum of $1 million. When the Grant County PUD case was settled on May 4, 1965, the fee due Alioto, for that and prior settlements, was $1,012,500. O’Connell and Alioto agreed that for those fees, O’Connell would receive 10 percent or a total of $101,250. Shortly thereafter O’Connell and Alioto agreed that in the future they would share fees on a 50-50 basis.
An agreement removing the fee limit was prepared by Faler, dated May 4, 1965, the same day the fee limit was exceeded, and signed by O’Connell as Attorney General and accepted by Alioto.
Within approximately 1 month after removal of the fee limitation, O’Connell received his check from Alioto for $101,250. While the original Alioto agreement was furnished to each participant and approved by them, no such approval was obtained for the fee removal. In fact no notice of the change or copy of the revised contract was submitted to any plaintiff. O’Connell said that he thought Faler had *851distributed such notice, but Faler testified that O’Connell had told him not to do so.
There was a brief discussion during the Grant County PUD trial between O’Connell and the attorney for the PUD who was also a member of the steering committee for WUAG. O’Connell asked the attorney what he thought about removing the ceiling since Alioto had other cases in California and if the limit were not removed, O’Connell feared that Alioto would put the California cases ahead of the Washington cases. The attorney said he didn’t think there was anything else O’Connell could do. O’Connell argues that this brief discussion constituted ratification by WUAG of the fee limit removal. However, the contract was modified in 1965, while the WUAG steering committee never met after 1961. The PUD attorney never was asked to submit the revision to the whole steering committee or anyone else.
About the same time one of the Grant County PUD commissioners suggested that the fee limit be raised to give Alioto incentive to handle the remaining cases. He testified he did not know the limit was to be removed and that his suggestion was that of raising the limit rather than eliminating it.
It is these brief conversations which the majority describes as constituting acquiescence of leaders of the WUAG. Neither O’Connell nor Faler mentioned to the attorney or the commissioner that they would share in the increased fees. Bearing in mind that the WUAG had had no meetings for 4 years and that its officers were sometimes designated by the fiat of Faler’s action, these few, informal communications cannot be elevated to the legal equivalent of proper acquiescence on behalf of all of the nonstate plaintiffs.
Another interesting event took place about the same time. O’Connell and Alioto discussed the possibility that O’Connell would receive 15 percent of the fees up to date. Since the State of Washington, O’Connell’s official client, had an interest in the litigation, it was agreed that *852O’Conneirs share would be reduced to 10 percent .which amounted to about $50,000. This allegedly was to avoid O’Connell’s sharing in any manner in the recovery for the State of Washington. In other words, if O’Connell had received 15 percent he would have received an additional $50,000. Significantly, 9 days after O’Connell received his $101,250 share Aliotb paid directly to Faler the sum of $50,000. That was the only payment made directly to Faler.
After both O’Connell and Faler had received their first shared fees, Faler negotiated a special agreement between Alioto and the Snohomish County PUD. He made no disclosure of fee sharing.
The next significant series of events began in October 1966, by which time most settlements had been reached. One of the attorneys on the Seattle corporation counsel’s staff examined the books of WUAG and learned for the first time that (1) Faler in 1965 had changed from a staff assistant attorney general on salary to an hourly time basis. In that capacity he was paid $79,448.65; and (2) that the $1 million fee limit had been removed. Thereafter both Seattle and Tacoma requested a refund of the portion of the attorneys’ fees paid. Without disclosing the fact-'that he and Faler had shared in those fees, O’Connell negotiated a refund of $116,916 to Seattle and $79,167 to Tacoma. At the expense of WUAG, O’Connell and Faler flew to San Francisco to discuss a refund with Alioto. Upon inquiry by Alioto as to whether plaintiffs knew O’Connell was sharing fees, O’Connell assured him that they all knew it even though he had never discussed it with any plaintiff or any of their attorneys. In early 1967 O’Connell sent $100,000 to Alioto and Faler sent $32,500. These funds were deposited in a special bank account with Joseph L. Alioto as trustee. Alioto created a trust account in the name of O’Connell as trustee and deposited his funds therein. These “trust” accounts were closed out into Alioto’s regular checking account. O’Connell then flew to San Francisco, obtained Alioto’s check and paid the refunds to Seattle and Tacoma. There was never any disclosure to Seattle or Tacoma that *853O’Connell and Faler had contributed the refunds nor was there a disclosure of these refunds to any of the other plaintiffs.
Finally, in 1969, when newspaper articles appeared about the fee sharing, O’Connell told a Seattle reporter that he denied having had any private practice while Attorney General, characterizing such an allegation as sheer fabrication. When the successor Attorney General asked O’Connell whether he had shared fees with Alioto, O’Connell flatly denied it. O’Connell’s explanation for the denial was that he thought the new Attorney General knew the details and that his question was “sort of a joke.”
Alioto, on the other hand, was very frank when the news stories broke. He said he relied on O’Connell’s statement that he had a right to practice law privately, that he represented the plaintiffs, other than the State of Washingon, as a private attorney, that they knew of his fee sharing, that he assumed that the fee limit was removed with complete authority in O’Connell and that from the very beginning in 1961 it was understood that there was to be a sharing of fees.
With these admitted facts in mind, certain preliminary observations can be made:
(1) The attorneys representing the various plaintiffs achieved excellent results and the total attorneys’ fees were reasonable. Those facts are not in issue, however, and they resolve nothing.
(2) Defendant Alioto acted properly in both a legal and an ethical sense. He relied upon the attorneys who initiated their association, O’Connell and Faler. His dealings with the clients were entirely through O’Connell and Faler. There was no requirement for Alioto to go directly to the clients which he represented only as an associated attorney to challenge O’Connell’s representations as to his status and authority. Alioto properly refused to pay a forwarder’s fee but relied upon the division of work and effort which he agreed upon with O’Connell. Alioto’s possible liability was *854the subject of correct instructions and I would affirm the judgment in his favor.
(3) O’Connell either (a) represented the plaintiffs as Attorney General or (b) was acting merely as a voluntary coordinating agent or (c) represented them as a private attorney. In (a) and (b) it is clear that he could have no private compensation. Assuming, as O’Connell contends, that he necessarily represented the various nonstate plaintiffs as a private attorney, I would hold as a matter of law that he, and likewise Faler, violated the ethical duty of an attorney to disclose material facts to his client.
We start with the uncontrovertible premise that the attorney-client relationship is highly fiduciary in character. As stated in In re Beakley, 6 Wn.2d 410, 423, 107 P.2d 1097 (1940):
“The relation of attorney and client has always been regarded as one of special trust and confidence.- The law therefore requires that all dealings between an attorney and his client shall be characterized by the utmost fairness and good faith, and it scrutinizes with great closeness all transactions had between them. So strict is the rule on this subject that dealings between an attorney and his client are held, as against the attorney, to be prima facie fraudulent, and to sustain a transaction of advantage to himself with his client the attorney has the burden of showing not only that he used no undue influence but that he gave his client all the information and advice which it would have been his duty to give if he himself had not been interested, and that the transaction was as beneficial to the client as it would have been had the client dealt with a stranger.” 7 C.J.S., Attorney and Client, § 127.
More specifically, Canon 38 of the Canons of Professional Ethics (which was in effect at the time of the actions complained of herein) declared that: “A lawyer should accept no compensation, commissions, rebates or other advantages from others without the knowledge and consent of his client after full disclosure.” Thus, even if O’Connell did represent the nonstate plaintiffs as a private attorney, he violated Canon 38 by accepting compensation (in the form *855of a commission or rebate) from “others” — namely, Alioto —without the consent of his clients. To interpret the word “others” so as to exclude the instant situation because the compensation here ultimately came from the unknowing client would lead to the absurd result that an attorney who is compensated without disclosure out of the pocket of a third party in a matter affecting a client is in violation of Canon 38, while an attorney who is secretly compensated out of his uninformed client’s own funds is acting properly!
The American Bar Association issued a decision on this point when presented with the question of whether a city attorney could share fees with a municipal bond attorney who was to give an opinion on bonds to be issued by the city represented by the city attorney. The opinion states in part:
But if there is a division of service and responsibility such as to justify a forwarder’s fee, the municipal solicitor ought always to make a full disclosure in the premises to his client.
Should the municipal solicitor conceal from his client the fact that he is receiving a “forwarder’s fee” from bond counsel, the solicitor would be violating the fiduciary attorney-client relationship existing between him and his client and, of course, such practice would smack of commercialism.
. . . In such a case [where there is a division of responsibility] a division of fees on a reasonable basis commensurate with the service performed and responsibility assumed by the solicitor will not be objectionable; provided always that the solicitor does so with the consent of his client and makes full disclosure of the fee arrangement.
(Italics mine.) Informal Decision 534, American Bar Association (1962). Accord, East Tenn. & W.N.C. Ry. v. Robinson, 19 Tenn. App. 265, 86 S.W.2d 433 (1935).
The simple unqualified statement of Henry Drinker, a recognized authority on legal ethics, is beyond dispute: “A lawyer must advise his client if he is to have a share of the charge of a colleague.” H. Drinker, Legal Ethics at 173 (1953). Both O’Connell and Faler had a positive, affirma*856tive duty to make a full disclosure to the nonstate plaintiffs before entering into the formal fee sharing arrangement with Alioto.12
The cases cited by the majority for the proposition that a jury verdict will be overturned only when there is no substantial evidence supporting the verdict are inapposite here. It is uncontroverted that O’Connell made no disclosure to any plaintiff or any of their attorneys that he was sharing fees. In fact, O’Connell denies that he had any such duty, although he cites no authority to support this theory (indeed, he cites no authority at all in his 48-page brief). Alioto’s brief addresses this issue only from the standpoint of Alioto’s duty to disclose, which is materially different from O’Connell’s obligations. As a matter of law we should hold that O’Connell and Faler violated their positive duty of disclosure.
Alternatively, if this question is to be treated as an issue for the jury, there was error in two respects. The trial court instructed as to the disclosure duty, but added that it applied to facts and circumstances
which reasonably appear to be important to the client . . . and which the lawyer does not or reasonably should not have reason to believe that the client already knows from some other source . . . This duty does not require a lawyer to advise his client of matters which the client already knows or which the lawyer reasonably believes the client has already learned or will be advised from some other source or which are not important enough to the client under the circumstances of the relationship to reasonably call for disclosure.
This instruction eliminates the positive ethical duty of disclosure whenever the lawyer reasonably assumes that the *857client knows of the matter or the lawyer believes the matter is unimportant. This qualification was devastatingly prejudicial to the plaintiffs in view of O’Connell’s assertion that he assumed that plaintiffs must have known of the fee sharing, even though he failed to disclose it, and that in any event the plaintiffs just didn’t care about it.
Appellants’ requested instruction properly described the duty of an attorney as being to
see to it that plaintiffs were fully advised of the nature and extent of any proposed division of fees between them and to obtain plaintiffs’ approval and consent to any such division of fees prior to the negotiation of any contract providing for the payment of attorney fees to Mr. Alioto.
This instruction should have been given.
Obviously, a client cannot consent to a fee sharing agreement of which he has no knowledge. In such a critical aspect of the attorney-client relationship — a relationship of special trust and confidence — it is not enough for the attorney to assume, whether reasonably or otherwise, that the client approves. It is incumbent upon the attorney to verify that assumption by expressly making full disclosure of the proposed division of fees to the client and obtaining the client’s explicit approval. The legal profession can tolerate no less.
There is further error in the trial court’s exclusion of expert testimony from three fitnesses as to the affirmative duty of a lawyer to disclose fee sharing. It was perfectly admissible because first, O’Connell said he had no such duty. He obviously was speaking as a lawyer and put the matter into issue. Second, the practice and duties of lawyers in this regard is not of such common knowledge as to be beyond the scope of expert testimony. We have held that expert testimony is admissible on the question of the competency of a judge, Lynch v. Republic Pub. Co., 40 Wn.2d 379, 243 P.2d 636 (1952), and on the issue of conflict of interest, Weber v. Biddle, 4 Wn. App. 519, 483 P.2d 155 (1971).
*858There were several critical points at which the clients were entitled to know of fee sharing. First, after a discussion with Alioto about fee sharing, O’Connell took it upon himself to recommend employment of Alioto. Attorney E. K. Murray, in an offer of proof, made the reason perfectly clear why this should have been disclosed. He said there was such an obligation
because he [O’Connell] was there as one of the attorneys for the joint participants in these proposed suits recommending the employment of another attorney when he, as a recommendor, had an undisclosed interest in either sharing in that fee or working on the case and earning the fee. He was in effect partly recommending the employment of himself undisclosed. And that, in my opinion, is contrary to the duty of a lawyer, period.
Second, there was an obvious conflict when the ceiling on the fee was removed. By virtue of that removal O’Connell and Faler received $652,814.16 in shared fees which they would not have received had the ceiling not been lifted. It strains reason beyond the breaking point to say that the clients were not entitled to know that fact.
Third, when O’Connell was negotiating a refund of fees with Seattle and Tacoma, there was a duty to disclose because of the conflict of O’Connell and Faler who were contributing to the refund. Again attorney Murray said it well:
[H]e [O’Connell] was in a position of negotiating for repayment of fees presumably to Mr. Alioto representing Seattle and Tacoma, appeared on their behalf, whereas he himself had an adverse interest not to succeed in the duty which he assumed in behalf and didn’t disclose.
Fourth, in making recommendations as to whether to settle a particular claim, O’Connell played a key role. Surely the client was entitled to know that the recommendations were being made by a lawyer with a direct interest in the dollars involved, rather than by a trusted public official bearing all the stature and authority of the state’s highest elected legal officer.
*859I emphasize that these were positive affirmative duties resting on O’Connell and Faler. Mr. Alioto had no such duty unless he had reason to know of the concealment. In fact he was assured by O’Connell that the clients knew of the sharing.
The majority also errs in stating that the 1962 agreement with Alioto was never formally authorized or ratified by the plaintiffs. Seattle, for example, gave written approval. Tacoma was requested to and did give written approval. Faler, in writing, stated that he had obtained specific approval of the Alioto agreement by at least three of the plaintiffs, and in at least one instance Faler confirmed by letter that the terms of the agreement had been approved by certain PUD commissioners.
Finally, I must disagree with the majority’s refusal to consider six of appellants’ 16 assignments of error, each of which deals with the failure of the trial court to give appellants’ proposed jury instructions. The majority contends that our consideration of these requested instructions is precluded by ROA 1-34 (9):
In all cases whenever any error is predicated upon a ruling relative to an instruction given or proposed, it will be necessary to include in the statement of facts all of the instructions given by the court and those proposed instructions concerning which error is assigned.
To better evaluate the majority’s position, it is helpful to review the relevant events. The original statement of facts, timely filed and served by appellants, contained all of the instructions given by the trial court, but did not include appellants’ proposed instructions. On March 22, 1973, before any brief was filed, appellants filed a first supplemental transcript which included all of appellants’ proposed jury instructions. Respondent Alioto suggested for the first time in his answering brief on July 9, 1973, that appellants’ assignments of error relating to their proposed instructions were not properly before this court.13 A supplemental statement of facts was served by appellants on August 9, certi*860fied by the trial judge on September 19 and filed on September 20, 1973. This supplemental statement contained all of appellants’ requested instructions in addition to all-of the instructions given by the trial court. This court heard oral argument on the merits on October 24,1973.
In applying ROA 1-34 (9) to these facts it is important to remember that we are not dealing with a jurisdictional requirement. ROA 1-32 provides that:
In order that the supreme court may secure jurisdiction of an appeal in a civil cause pursuant to ROA 1-14, the appellant need only give timely notice of appeal (see Rule 1-15,1-33).
Failure of the appellant to take any further steps to secure the review of the order, judgment, or decree appealed from does not affect the validity of the appeal, but is ground for such remedies as are specified in these rules or, when no remedy is specified, for such action as the supreme court deems appropriate, which may include contempt, assessment of terms, costs or damages, and dismissal of the appeal.
Since the deletion from ROA 1-32 in 1956 of the requirement of timely filing of a statement of facts as a jurisdictional prerequisite to review by this court, we have been hesitant to punish litigants for the neglect of their counsel. For example, we have instead sometimes imposed terms upon counsel. See Beagle v. Beagle, 55 Wn.2d 908, 349 P.2d 241 (1960); accord, Neal v. Green, 68 Wn.2d 415, 413 P.2d 339 (1966).
Since we do have wide discretion to dispose of violations of ROA 1-34(9), we should consider the underlying reasons for that rule in determining whether there has been a violation here and, if so, what action is appropriate. In Porter v. Chicago, M., St. P. & Pac. R.R., 41 Wn.2d 836, 839, 252 P.2d 306 (1953), we explained that:
The principal reason for such requirements is that we must consider all of the instructions as a whole in determining whether the court erred in the particular instance claimed. In the case of a refused instruction, it may appear that the court has given one of sufficiently like *861import, or it may appear that such instruction advanced a theory materially modifying or directly at variance with that adopted by the court in the instructions given.
In Porter, the statement of facts did not contain the instructions given by the trial court. Thus, this court was unwilling to assume that the jury instructions contained in the transcript were actually those given in the absence of a certificate to that effect from the trial judge. In the instant case, the original statement of facts did contain all of the instructions given by the trial court. Moreover, in Porter the deficiency was never corrected. Here, the original statement and supplement, which together contain all instructions given by the court and proposed by appellants, were on file for more than a month before oral argument. This court had adequate time to consider both the instructions given and those requested — all in certified form. Cf. Kuhnhausen v. England, 79 Wn.2d 282, 285, 484 P.2d 1135 (1971).
In addition to assisting this court, ROA 1-34(9) is also intended to aid the respondent by insuring that he will be informed of the precise grounds upon which the appellant relies so that the respondent can direct the arguments in his answering brief accordingly. Therefore, in Popovich v. Department of Labor & Indus., 66 Wn.2d 908, 406 P.2d 593 (1965), because the original statement of facts included neither the instructions given nor the instructions refused, we held that a supplemental statement of facts filed after respondent filed its brief would not be considered by this court.
In contrast,.appellants’ original statement of facts herein contained all of the instructions given to the jury, and all of appellants’ requested instructions were included in the first supplemental transcript with was filed over 3 months before the filing of respondent Alioto’s brief. In appellants’ opening brief each of the proposed instructions upon which error is predicated is referred to by its page number in the supplemental transcript. The supplemental statement of facts, properly certified by the trial judge, leaves no doubt that the instructions set forth in the supplemental tran*862script are indeed the instructions which were actually submitted by appellants to the trial court.
Alioto does not suggest that he has in any way been prejudiced by the fact that appellants’ proposed instructions were included initially in the transcript rather than in the original statement of facts, and I am unpersuaded by the majority’s conclusion that he has somehow been “inconvenienced.” Alioto devotes only a page and a half out of 89 in his brief to this technical procedural challenge to this court’s consideration of the requested instructions. He then goes on to thoroughly respond on the merits to every one of appellants’ assignments of error, skillfully attacking each of the proposed instructions in question.
The majority emphasizes that this is a complex, voluminous appeal. I agree. But that makes even more senseless the majority’s refusal to consider and decide six significant legal questions merely because appellants’ counsel have made one totally harmless technical “error.” Here, as in King County Republican Cent. Comm. v. Republican State Comm., 79 Wn.2d 202, 208, 484 P.2d 387 (1971), there was
no discernible or practical prejudice flowing to respondent, no unfairness to the trial judge, and no inconvenience to this court as a result of the belated certification of the record.
While the majority’s unwillingness to consider appellants’ requested instructions undoubtedly makes this appeal easier to dispose of, it does not make good law.
While I disagree with many of the conclusions reached by the majority, there is no point in extending this dissent by discussion of them since the above reasoning would be dispositive. I am compelled to add, however, that this appeal substantiates the theory of Mr. Justice Holmes that:
Great cases like hard cases made bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure *863which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
Northern Sec. Co. v. United States, 193 U.S. 197, 400-01, 48 L. Ed. 679, 24 S. Ct. 436 (1904) (Holmes, J., dissenting opinion). Truly, this is a “great” case.
I dissent.
Stafford and Wright, JJ., concur with Brachtenbach, J.
Petition for rehearing denied September 10, 1974.
The Code of Professional Responsibility, adopted effective January 1, 1972, sets forth this duty with even greater specificity. (CPR) DR 2-107 provides that:
(A) A lawyer shall not divide a fee for legal services with another lawyer . . . unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
(Italics mine.)
Respondents O’Connell and Faler have not raised this issue.