Advisory Opinion: 2078

Year Issued: 2004

RPC(s): RPC 1.7, 2.2, 7.1-7.5

Subject: Ethical considerations regarding the services of a “settlement lawyer”


FACTS
The inquiring attorney is trained in "collaborative law" with a primary focus on family law issues. She has been a trained mediator since 1991. In her experience, many people in family law cases proceed pro se because they believe it is either unkind or too expensive to hire an attorney.

The inquirer would like to offer mediator-like assistance to these clients as a "settlement lawyer." As a settlement lawyer she would serve as a "respected source of authoritative wisdom on law and other relevant practical considerations" in helping the parties to reach a constructive resolution. She would also assist the parties in locating other professionals to assist them.

The inquirer has included a proposed attorney-client contract for settlement lawyer services for the Committee`s consideration.

RESPONSE
1. An attorney acting as a true intermediary, does not appear to violate RPC 2.2 provided the attorney complies with the specific requirements of the rule. Under RPC 2.2, the attorney must make it clear to both parties that she is acting solely as an intermediary, advise them that there is no attorney-client privilege separating the parties, comply strictly with RPC 2.2, and, if the intermediation is not successful, refrain from representing either party in any subsequent proceedings. The attorney should be extremely careful when undertaking such a role. She should also consider RPC 1.7, governing Conflict of Interest.

However, RPC 2.2 has been recommended for removal by the Board of Governors and the recommendation was presented to the Washington State Supreme Court the week of October 11, 2004. If RPC 2.2 is deleted, as it has been from the ABA Model Rules, the attorney will instead rely upon RPC 1.7 and the comments thereto. Comments [29] – [33] of the ABA Model Rules are particularly illuminating and have been recommended for adoption in Washington.

2. Your inquiry contains repeated references to the term "Settlement Lawyer." The Committee is uncertain if your inquiry requests an opinion whether that term violates any RPCs. The use of any term to describe a lawyer`s services or fields of practice constitutes a professional designation and must comply with RPCs 7.1 through 7.5.

3. The Committee declines the invitation to edit proposed legal documents, but has concern with the adequacy of the contract as written and recommends review of relevant rules including the RPCs regarding disclosure and informed consent.

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Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.