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Note that the Rules of Professional Conduct were substantially revised in 2006. The language and citations in any Advisory Opinion issued prior to this date may not be consistent with the current rules.
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Opinion NumberYear IssuedRPCSubjectOpinion
201901 2019 RPC 1.7, 1.7(b)(3), 1.12(a), 2.4, 2.4(b), GR 24(a)(2) Lawyer-Mediator Preparing Pleadings for Unrepresented Parties in Dissolution Issue presented: A lawyer serves as a mediator in resolving issues in a dissolution action. The parties to the dissolution action are both unrepresented. If the parties come to a full resolution of all issues through the mediation, may the lawyer-mediator on behalf of both spouses prepare pleadings that reflect the parties’ agreement?

Discussion:

RPC 2.4 addresses the obligations of a lawyer who is serving in a neutral role, including as a mediator. That rule requires a third-party neutral, such as a mediator, to “inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.” RPC 2.4(b).

RPC 2.4 recognizes that a lawyer serving as a mediator is performing a very different function from a lawyer who is representing a client. A lawyer representing a client advises that client of what is in the client’s best interest and drafts documents with the goal of furthering the client’s interests. In contrast, a lawyer acting as a mediator is not advocating for either party to the mediation but instead attempts to bring the parties to an agreement.

If the parties come to an agreement at a mediation, it is appropriate for the mediator to draft a written confirmation of that agreement with as much or as little specificity as appears warranted under the circumstances. Drafting the confirmation of the parties’ agreement does not mean the mediator is representing one or both parties to the mediation as the mediator is simply recording the terms of the parties’ agreement. When doing so, the lawyer-mediator should be sure each party understands that the mediator is not acting as either party’s lawyer. While not required by RPC 2.4, the best practice is to advise both parties that they may wish to have the agreement reviewed by counsel.

Drafting pleadings is not the same as recording the parties’ oral agreement in written form. Rather, under GR 24(a)(2), drafting pleadings constitutes the practice of law.

However, filling in the blanks on a pleading form does not necessarily constitute the practice of law. For example, in In re Estate of Knowles, 135 Wn.App. 351, 364-365 (2006), the Court of Appeals found that a testator’s son did not engage in the practice of law by filling in blanks in a pre-printed will form when the son merely filled in the form as the testator instructed. The Court found that “[g]enerally, a person begins to practice law by either directly or indirectly (selection of appropriate documents) giving advice” and completing forms did not qualify as the practice of law because the son did not select the will form or advise the testator. Id., 135 Wn.App. at 365. See also In re Disciplinary Proceeding Against Shepard, 169 Wn.2d 697, 710-11, 239 P.3d 1066 (2010) (distinguishing Knowles from nonlawyer selling living trust documents who presented clients with information about the benefits of a living trust and selected which documents the clients should use).

A mediator may complete a pleading form on behalf of both parties to the mediation if the mediator’s role in doing so is similar to the son’s role in Estate of Knowles, where the son was merely recording information on a preprinted form as his father directed. Because filing documents with the court does not constitute the practice of law, a mediator is permitted to file documents regardless of the contents. n.1

On the other hand, if a lawyer-mediator drafted a pleading with customized provisions on behalf of both parties, the mediator would be representing both parties in the same litigation. The conflict of interest rules flatly prohibit a lawyer from representing adverse parties in the same action if the representation involves the assertion of a claim by one client against another client. Rule 1.7(b)(3). Even if the parties have agreed in the mediation to a resolution of the claims, the parties are still adverse in a legal proceeding until the legal proceeding has been dismissed.

If the parties to a dissolution have reached agreement on the matters that were originally in controversy, some may argue that they are no longer asserting claims against one another so a lawyer could represent both in drafting pleadings dictated by the parties’ agreement. But this argument is incompatible with the plain language of Rule 1.7(b)(3) and the first sentence of comment 21: “Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients’ consent.” Cmt [21] to Rule 1.7. See also cmts [23]-[25] to Rule 1.7. n.2

RPC 1.12(a) is also relevant to how a lawyer-mediator may proceed after a mediation is completed. It provides, except for an exception not relevant here, that:

a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.

By its terms, the rule would permit a former mediator to represent one party to the former mediation provided only that all the other parties were willing and able to give their informed consent. Given that such an arrangement would authorize the lawyer to act and advocate solely on behalf of that party, however, mediation parties excluded from the representation may not be willing to consent to this arrangement. Furthermore, a mediator may not wish to ask for such consent because of a concern that doing so would be inconsistent with the mediator’s prior neutrality.

Significantly, RPC 1.12(a) does not, itself, preclude a former mediator from representing all the parties to the mediation if all the parties provide informed consent confirmed in writing. Such a common representation, however, would be in conflict with the prohibition contained in RPC 1.7(b)(3), discussed above, insofar as the parties continue to be opposing parties in the same litigation. The Committee is of the opinion that the prohibition in RPC 1.7(b)(3) must take precedence over a reading of RPC 1.12 that would permit such a common representation. Thus, unless and until the rules are amended to permit such a common representation of former parties to a mediation who remain in a legal proceeding nominally against one another, such a common representation is precluded despite the fact that the former mediator believes the parties have resolved their differences.

In some circumstances, the prohibition of RPC 1.7(b)(3) may not apply. n.3 Some disputes may be resolved by mediation without recourse to a court proceeding. In other cases, a legal proceeding may be voluntarily dismissed by the parties before the former mediator changes from the role of mediator to that of lawyer representing all the parties to the former mediation. This opinion does not address mediations in which there is no litigation pending.

Footnotes

1. This does not mean a mediator can present the orders to a judge or commissioner, as that would require a notice of appearance on behalf of at least one party.

2. Comments [23] –[25] provide as follows:
[23] Paragraph (b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients' consent. On the other hand, simultaneous representation of parties whose interests in litigation may conflict, such as coplaintiffs or codefendants, is governed by paragraph (a)(2). A conflict may exist by reason of substantial discrepancy in the parties' testimony, incompatibility in positions in relation to an opposing party or the fact that there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one codefendant. On the other hand, common representation of persons having similar interests in civil litigation is proper if the requirements of paragraph (b) are met.

[24] Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients. The mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. A conflict of interest exists, however, if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case; for example, when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client. Factors relevant in determining whether the clients need to be advised of the risk include: where the cases are pending, whether the issue is substantive or procedural, the temporal relationship between the matters, the significance of the issue to the immediate and long-term interests of the clients involved and the clients' reasonable expectations in retaining the lawyer. If there is significant risk of material limitation, then absent informed consent of the affected clients, the lawyer must refuse one of the representations or withdraw from one or both matters.

[25] When a lawyer represents or seeks to represent a class of plaintiffs or defendants in a class-action lawsuit, unnamed members of the class are ordinarily not considered to be clients of the lawyer for purposes of applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically need to get the consent of such a person before representing a client suing the person in an unrelated matter. Similarly, a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

3. Comment [17] to RPC 1.7, for example, states that RPC 1.7(b)(3) “does not preclude a lawyer's multiple representation of adverse parties to a mediation (because mediation is not a proceeding before a ‘tribunal’ under Rule 1.0A(m)),” but “such representation may be precluded by” RPC 1.7(b)(1). This comment addresses a lawyer who is representing more than one client at a mediation. It does not address a lawyer who is serving as a mediator.
1752 1997 RPC 1.12(b); 2.2 Lawyer acting as mediator and representing a party; mediator preparing documents [The inquiry concerned] (1) whether a lawyer, as a mediator, may prepare final documents and sign a settlement agreement in which he/she acts as lawyer for one of the parties, and includes a clause in the agreement indicating he/she represents one of the parties in the settlement, and has the opposing party sign a consent and waiver? and, (2) whether it is ethical as a mediator to prepare initial dissolution pleadings where the lawyer has acted as a mediator and the parties have had independent counsel?

The Committee has answered as follows:

(1) No. RPC 1.12(b) and case law specifically prohibit a lawyer from acting as an adjudicative officer or arbitrator, while representing a party in the proceeding in which he/she is participating personally and substantially. The rule should extend to a mediator as 1.12(b) refers to mediator in the remaining portion of the rule, and mediators have been held as adjudicating officers, by the Washington Courts.

There is no prohibition limiting the mediator from the preparation of the mediation agreement reached by the parties or the final documents. In fact, as a practical matter his/her preparation of the mediation agreement and final documents may be advisable, with the mediation agreement reflecting the parties' intent to have the same incorporated by reference into the final decree. Where neither party is represented independently, the lawyer is obligated to advise that he can only represent one party or can mediate with each party's consent but cannot mediate and represent one party in the same proceeding.

(2). Yes. When the parties are independently represented and the sole function of the mediator is to mediate, the mediator may act as scrivener, preparing the mediation document/agreement reached by all parties. There is no prohibition of the mediator preparing the mediation agreement or final pleading, where the parties are represented. As a practical point, mediators should mediate and where necessary prepare a mediation agreement. Attorneys should prepare pleadings. RPC 2.2.
2223 W 2012 [None] [Withdrawn]
1779 1997 RPC 1.1; 1.3; 8.4(c); 8.4(d); ABA Formal Opinion 94-382 Confidentiality; misdirected documents received from opposing counsel Facts Presented: Lawyer received copies of deposition transcripts. Although the lawyer's client is not a signatory to the agreement, the participants agreed to keep the deposition transcripts confidential.

Questions Presented: (1) Should the lawyer return the deposition transcript to the mediator without looking at it? (2) Does the lawyer have a duty to share the document with the client? (3) May the lawyer use the contents of the document in accordance with the rules of evidence? (4) If the client has the right to keep the document, does the lawyer have a duty to notify the mediator or the other parties that it was sent to the lawyer?

Applicable Rules: RPC 1.1, 1.3, 8.4(c) and (d).

RPC Committee: The Rules of Professional Conduct do not address this issue. In view of the lack of guidance from the RPCs, and the lack of consensus in other jurisdictions, the Committee recommends that you review the guidance contained in ABA Formal Opinion 94-382. While not binding, it does afford a set of guidelines for the recipient, as well as the adverse lawyer.
1551 1993 RPC 2.2; 7.1(a); 8.4(c) Use of assumed name for fee collection; lawyer acting as mediator as cover for joint representation in dissolution First, the Committee reviewed your inquiry concerning fee collections. [The lawyer proposed sending notices to delinquent clients under the names "Legal Audit Services" and "Bureau of Legal Economics."] The Committee was of the opinion that the use of "Legal Audit Services" or "Bureau of Legal Economics" would violate RPC 7.1(a) and/or RPC 8.4(c). Further, while the Committee could render no opinion regarding any legal issues, there was some question that the use of such fictitious names might violate laws regarding debt collection in Washington.

Second, as to your inquiry concerning a lawyer acting as a mediator, the Committee was of the opinion that the question of the attorney/client relationship is governed by the substance of the relationship and not the form. The Committee was of the opinion that based upon the facts presented, this was an attempt to use mediation as a cover for improper joint representation of parties in a marriage dissolution proceeding.
904 1985 RPC 7.3 Mailing brochure to prospective mediation clients A mediation service proposed mailing a brochure to all parties to dissolution cases filed in the county in a one month period. After considerable discussion, the Committee determined by a vote of 5-4 that a lawyer who acted as a mediator between parties involved in dissolution of their marriage is conducting "professional employment" as that term is used in the Rules on Professional Conduct, which take effect September 1, 1985, and that therefore the solicitation rule, RPC 7.3 would apply. The Committee was of the opinion that a lawyer can mail a non-personalized informational brochure to all parties who had filed dissolution proceedings within a county within a one-month period.
2109 2005 RPC 1.7, 1.9, 3.7 Attorney who drafted will representing one heir against another The inquirer asks whether an attorney who drafted decedent’s will has a conflict of interest in representing one heir against the other heir who is also the personal representative (PR), where the validity of the will, the competency of the testator, and confidential communications with decedent are not issues.

The inquiring attorney drafted decedent’s will and represented him in other matters. The will names a brother as PR as well as an heir, along with a woman. A dispute has arisen over estate property. The two heirs have separate counsel, one of whom is the inquiring lawyer. The other attorney contends the inquiring lawyer has “at worst, a potential conflict representing heirs against each other; at best, you are a witness regarding the validity of the will.” The inquirer has never represented the personal representative/heir, recalls no confidential communications with decedent surrounding the execution of the Last Will and Testament, and knows of no reason the will’s validity would be challenged. For purposes of this opinion, we assume there is no issue regarding the decedent’s competency, the validity of the will, or the existence of confidential communications. Should these assumptions prove incorrect, RPCs 1.7 and 1.9 must be considered.

The inquiring lawyer does not necessarily have a conflict of interest requiring him to withdraw as the attorney for a beneficiary named in the will he drafted. RPC 3.7 prohibits a lawyer from acting as an advocate at trial where the lawyer is to be a witness. Litigation has not been commenced. Should a lawsuit be filed raising issues of the will’s validity, the testator’s competency, attorney-client confidentiality, or the testator’s intent, the inquirer should then reconsider RPC 3.7. The inquirer should also consider RPCs 1.7 and 1.9 in determining whether he has a conflict.
2078 2004 RPC 1.7, 2.2, 7.1-7.5 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.
1118 1987 Conflict of interest; lawyer who drafted will serving as both sole trustee of trust created by will and guardian for beneficiary of trust You have asked whether an attorney may act as sole trustee on a trust which is created in a will drafted by that attorney, and under the same circumstances act as guardian for the beneficiary of the trust. It was the feeling of the Committee that although the Rules of Professional Conduct may not directly prohibit the proposed conduct, other considerations may.

[Editor's Note: See Informal Opinion 86-1].
1205 1988 RPC 1.9 Conflict of interest; client confidences and secrets; lawyer who wrote wills for both husband and wife wishes to represent husband in dissolution The Committee considered your inquiry concerning whether you may undertake to represent a husband in a dissolution proceeding where you wrote wills for both the husband and wife in 1975. The Committee was of the opinion that in drafting the wills you necessarily obtained confidences and secrets from both clients and therefore, you could not now undertake to represent the husband adversely to the wife without complying with RPC 1.9.
1262 1989 RPC 3.7 Lawyer as witness where lawyer is representing him or herself The Committee is of the opinion that RPC 3.7 is not intended to prevent a lawyer who is a party defendant in an action from representing him or herself, nor intended to prevent a partner or associate of that lawyer from representing the defendant lawyer in those proceedings. Because the Committee believes this is an issue of broad interest to members of the Bar, it intends to draft a proposed Formal Opinion and submit it to the Board of Governors for a their consideration.
1362 1990 RPC 1.7; Informal Opinion 86-1 Lawyer named as trustee or personal representative in will drafted for client The Committee reviewed your inquiry concerning requests by clients that you be named by clients as trustee or personal representative in wills and trusts drafted by you. The Committee had previously addressed this in informal opinion 86-1, a copy of which I enclose. The Committee also directed me to call your attention to the Shaughnessy cases cited in the informal opinion and the Estate of Larsen, 103 Wn.2d 517 (1985).
2086 2005 RPC 1.8(c), 1.7(b), Published Informal Opinion 86-1 Drafting wills and RPC 1.8(c) and 1.7(b) The inquirer asks four questions to which the committee opines as follows:

Inquiry No. 1

The inquirer seeks the opinion of the Committee on whether a lawyer may draft a will for the lawyer’s stepfather naming the lawyer’s parent as the primary beneficiary, the lawyer and the lawyer’s siblings as contingent beneficiaries, and the lawyer as executor.

The inquirer should be referred to Informal Published Opinion 86-1 with respect to whether the lawyer may prepare a will naming the lawyer as beneficiary, and whether a lawyer may prepare a will in which the lawyer is designated as the executor.

RPC 1.8 is the primary rule at issue (although RPC 1.7(b) also is relevant). RPC 1.8 provides, in relevant part:

"A lawyer who is representing a client in a matter: . . . (c) Shall not prepare an instrument giving the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where the client is related to the donee."

Under each of the proposed scenarios, the persons receiving the testamentary gift will either be the lawyer, the lawyer’s parent or the lawyer’s sibling. We assume there is no material issue regarding whether the lawyer is related to her parent and her siblings within the context of RPC 1.8(c).

Assuming the gifts to the lawyer’s relatives are “substantial,” RPC 1.8 precludes the lawyer from representing the testator unless the testator is “related to the donee” within the meaning of RPC 1.8. The rule does not describe the degree of relationship necessary to satisfy the requirement that the client be related to the donee. We are unaware of any Washington case construing whether a stepparent or in-law is a “relative” within the meaning of RPC 1.8(c). Nor have other State Bar Associations provided written advice regarding whether a spouse or a step-child is “related” within the meaning of this rule. The Committee believes that, for purposes of RPC 1.8(c), persons who are “related to the donee” are the same persons identified elsewhere in RPC 1.8(c)—i.e. parents, children, siblings and spouses. The Committee is further of the opinion that in-laws and “step” relatives are not “related” within the meaning of RPC 1.8(c). Therefore, the Committee does not believe the inquirer can rely on the exception currently contained in RPC 1.8(c) to prepare the will under the circumstances described in the first inquiry.

In this regard, the Committee observes that RPC 1.8(c), as adopted in Washington State, is different than the ABA Model Rule of Professional Conduct 1.8(c). The latter provides that “[f]or purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.” The Committee notes that the Washington State Supreme Court has published for comment amendments to RPC 1.8(c) that contain the above-cited language from the ABA Model Rule of Professional Conduct 1.8(c). The Committee believes that, depending on the facts and circumstances, a lawyer could reasonably conclude that an in-law or “step” relative maintains a “close, familial” relationship with the lawyer and/or the client. Thus, if the Washington Supreme Court adopts the proposed amendments to RPC 1.8(c) in the form currently proposed, the inquirer may be able to prepare the will described in Inquiry No. 1.

Inquiry No. 2

The inquirer next asks whether a lawyer may draft a will for the lawyer’s parent in which the lawyer’s stepfather will be the primary beneficiary, the lawyer and her siblings will be contingent beneficiaries, and the lawyer be executor.

The responses to Inquiry No. 1 generally address this inquiry. We note that the testator is “related” to the lawyer and her sibling. Therefore, RPC 1.8(c) would allow the lawyer to draft a will naming the lawyer and her sibling as beneficiaries. Consistent with our conclusion regarding Inquiry No. 1, we also conclude the inquirer can draft a will naming her stepfather as a primary beneficiary because the inquirer is not related to the stepfather within the meaning of RPC 1.8(c). The Committee observes that the inquirer must follow the requirements of RPC 1.7(b)(1) and (2) in preparing the proposed will, as the inquirer’s representation of the testator may be materially limited by the inquirer’s responsibilities to third persons (i.e. her sibling and her stepfather).

Inquiry No. 3

The inquirer next asks whether a lawyer may draft a will for her spouse in which the lawyer will be the primary beneficiary, substantial gifts will be left to the lawyer’s parent or siblings, and the lawyer will be designated as executor. The inquirer adds the question as of whether it is necessary to follow RPC 1.7(b)(1) and (2) as to a spouse’s will.

The responses to Inquiries No. 1 and 2 generally address this inquiry.

Regarding RPC 1.7(b), an attorney must follow RPC 1.7(b)(1) and (2) regardless of the facts of any particular situation. Further, insofar as Informal Published Opinion 86-1 addresses the question raised, the inquirer is referred to that informal opinion, as well as RPC 1.7(b)(1) and (2).

Inquiry No. 4

The inquirer asks if these wills may be ethically drafted, is there is any problem with the lawyer being named primary or contingent executor provided full disclosure is provided to the client.

Again, the inquirer is referred to Informal Published Opinion 86-1.
2033 2003 City attorney and municipal court judge on contract from same firm The inquirer asks, if his law firm that has a contract with a city to provide both city attorney and municipal court judge, may ethically provide such services under the following facts: 1) the city attorney advises the Mayor, City Clerk-Treasurer and Council, but not the civil functioning of the municipal court, 2) the city attorney does not assist in drafting nor provide advice with respect to town ordinances that may come before the municipal court judge, 3) advice and drafting of such ordinances are handled by an attorney not associated with the firm, 4) the municipal court only has jurisdiction over misdemeanors and infractions, 5) all misdemeanors and infractions will be prosecuted by outside counsel, 6) the city attorney will not appear before the municipal judge in any matter, 7) the city attorney does not advise the judge on the functioning of his or her court or the administration or operation of his or her office, including matters of municipal court personnel and contracts, 8) the city has been appraised of the potential conflicts and has consented in writing to the representation, and 9) the city attorney does not work with, appear before or otherwise interact with the Municipal Court Judge concerning City of “X” matters?

The committee opined that it can make no general statement as to the compliance or noncompliance with the Rules of Professional Conduct under the facts provided. The committee did wish to point out that there are substantial risks that require constant evaluation and monitoring on a case by case basis to insure compliance with the rules.
[editor`s Note: See related Informal Opinion 2003]
800 1977 77-1 Use of Attorney`s Letterhead [Pub Inf Op 77-1] [Formerly published as Published Informal Opinion 77-1. All Informal Opinions are consolidated in this database.]

It has come to the attention of the Committee on the Code of Professional Responsibility of the Association that difficulty is being created by parties and/or agencies receiving correspondence signed by attorneys` clients utilizing the lawyer`s letterhead. It is the suggestion of the Committee that clients are to write and sign their own letters; although drafted by the attorney it should not be on the attorney`s letterhead or, in the alternative, if it is on the attorney`s letterhead both the client and the attorney should sign the letter and give the person or agency to whom the letter is directed notice as to whether the attorney is, as a matter of fact, representing the client in regard the subject matter of the letter or not.
2160 2007 ownership of electronic files An estate planning attorney asks how the WSBA views the attorney’s electronic file of a client’s documents, if an electronic version of a client’s documents must be provided to a client upon request or if language in the engagement letter may exclude client access to electronic documents.

The attorney provided the following draft of a provision for review:

Upon completion of the work outlined in this engagement letter, you will be provided with the original documents that you signed, and one copy of each document, in paper format. You acknowledge that the electronic version of the estate planning documents is my work product and you have no right to receive a copy of the electronic file.

The committee opined that it does not, as a matter of policy, comment on specific language. In this instance, the client has been provided with the product contemplated, i.e., estate planning documents in paper format. Your provision to the client of the original and one copy of estate planning documents complies with the Rules of Professional Conduct.
1066 1987 RPC 1.14(c); Formal Opinion 177 Trust account; "qualified" accounts At your request, the Committee reviewed its previous informal opinion regarding this requirement of RPC 1.14(c) that client trust funds be deposited in "qualified accounts", and that such a rule is mandatory and may not be waived by the client. The Committee continued its opinion that the rule is mandatory and may not be waived by the client. However, the Committee did want to point out to you that the lawyer may distribute the funds to the client and the client may then deposit the funds into any account the client may wish. The Committee also directed that I provide you with a copy of Formal Opinion 177, which addresses your apparent concern about the withdrawal of client funds prior to the date of clearance of checks or drafts.
1184 1988 RPC 5.4(a) Division of fees with nonlawyers; employment as business consultant giving legal advice to clients of corporation The Committee considered your inquiry concerning whether a lawyer could be employed as a business consultant for a private corporation and, on behalf of the employer, perform basic legal services such as drafting contracts and giving legal advice to clients of the corporation. The Committee understood that the lawyer would be paid a salary by the corporation, and that the clients would be billed by the corporation on an hourly rate. The Committee was of the opinion that if what the lawyer did constituted the practice of law, then such conduct would be prohibited by RPC 5.4(a) because it would constitute sharing legal fees with non-lawyers. The Committee cannot, however, give an opinion regarding the legal questions of what constitutes the practice of law.
1809 1998 1.7; 1.8; 1.9 Conflict of interest; firm represents estate as personal representative when one of the firm's lawyers prepared the will The inquiry concerns whether a firm serving an estate as personal representative and performing legal services for the estate would constitute a conflict of interest within the meaning of RPC 1.7, 1.8, and 1.9, or violate the duty as an attorney to provide independent professional judgment, as required by RPC 2.1.

The committee apologizes for the delay in responding to the inquiry but the committee wished to consult with the Real Property, Probate and Trust Section because the inquiry deals with that area of practice. A member of the Section wrote on September 20, 1999 stating the Section’s position, which was considered by the committee in reaching its decision.

It is not expressly prohibited by the Rules of Professional Conduct for a lawyer /personal representative for that lawyer and/or that firm to act as attorney for the personal representative, provided that the lawyer complied with RPC 1.8(a)(1), (2) and (3) at the time the will was drafted.
1894 1999 RPC 1.7; 5.2; RCW 74.20A.030 Conflict of interest; DSHS lawyer completing appeal form after determination of child support for obligor parent The facts of the inquiry are as follows: the Dept. of Social and Health Services (DSHS) hires lawyers as claims officers who represent the Division of Child Support in establishing and collecting child support pursuant to RCW 74.20A.030. A recent change to the Washington Administrative Code modifies the appellate notice requirements so that, rather than submitting a written notice to the Office of administrative Hearings, parents may verbally inform an employee of the Division of Child Support (DCS) of their intention to appeal. This has resulted in a policy change requiring DCS lawyers to complete a form that includes a section in which the lawyer drafts the basis for appeal on behalf of the parents wishing to appeal.

It is the committee’s opinion that the preparation of appellate documents for an aggrieved parent is a violation of RPC 1.7. The committee also believes that RPC 5.2 binds a lawyer to follow the Rules of Professional Conduct even though directed by another lawyer to the contrary.
1693 1997 RPC 1.2; 1.6; 1.7(b); 1.8(f); 5.4(c); 7.1(b); 7.2(c); 7.3 Payment of lawyer's fee by third party; solicitation; referral by insurance agent The following is a response to your inquiry regarding referrals from an insurance agent, the agent's submission of a questionnaire to his/her clients and what effect it may have on the attorney. Please be advised that your inquiry led to much heated debate and split of opinion among the committee. Furthermore, the committee believes that its split of opinion should be an indication to you not to rely on this informal opinion to support any action of civil liability to which you, as an attorney, may be subjected.

The committee responds to the following issues:

(1) Is it ethical for an attorney to draft a trust and a pour-over will for a client of an insurance agent, where the agent wishes to pay the fees for the preparation of those documents?

[2) Would the opinion differ if the client paid the fee and was reimbursed by the agent?

[3) Would the forwarding of a questionnaire by the insurance agent to his/her client recommending the lawyer's services for preparing trusts violate RPC 7.3?

It is the opinion of the committee that:

(1) If the attorney agrees to accept his/her fee from the insurance agent, RPC 1.2, 1.8(f) and 5.4(c) are mandated and the attorney must exercise independent professional judgment and provide the client candid and independent advice regardless of whether the fee is paid.

(2] If the attorney is to be paid by the client (who shall be reimbursed by the insurance agent), the attorney must comply with RPC 1.2 and 1.7(b) and maintain independent judgment in light of and expectation of future referrals from the agent.

(3] There is no prohibition against a lawyer being recommended by an insurance agent to the agent's client for purposes of having legal documents drafted, provided the communications regarding the attorney's abilities are not done in a manner to create an unjustified expectation about the results the lawyer can achieve (RPC 7.1(b)); and provided the lawyer does not give anything of value to the agent for recommending the lawyer's services except for the reasonable value for cost of advertising (RPC 7.2(c)). Likewise, the attorney needs to take care that the relationship initiated by the insurance agent does not breach into an RPC 7.3 relationship, where the initiative is that of the attorney seeking pecuniary gain. Finally, it will be incumbent upon the attorney to protect the client's confidences and secrets unless the client consents after consultation. RPC 1.6. In addition, RPC 1.2, 1.8(f), 5.4(c), 1.7(b), 1.6, 7.1(b), 7.2(c), and 7.3(a) and (b) may be found helpful.
2179 2008 RPC 1.5, 1.16(d), 1.5(a), 1.5(a)(1) Non-refundable fee arrangements for Medicaid clients I. Facts

The inquiring lawyer practices elder law and frequently helps his clients ‘spend down’ their financial holdings to meet eligibility requirements for Medicaid benefits. One way to spend down financial holdings is to prepay funeral plan expenses. However, under the rules, prepaying funeral plan expenses will only qualify as a legitimate spend-down if the funeral plan is irrevocable. The lawyer wants to draft his attorney fee agreements so as to be irrevocable as an additional way to help the client spend down financial holdings.

II. Question

The lawyer is aware of the problem with non-refundable attorney fees, but asks if there is any way that an irrevocable fee agreement could be drafted.

III. Answer

Attorney fee agreements may not be irrevocable. Such agreements would violate the requirements for fees in RPC 1.5 and the client’s right to refund of unearned fees upon the termination of the representation identified in RPC 1.16(d).

IV. Analysis

“A lawyer shall not make an agreement for, charge, or collect an unreasonable fee”. . . .See RPC 1.5(a). One of the factors in determining the reasonableness of the fee is the time and labor required. RPC 1.5(a)(1). A lawyer who expends a great deal of time working on a client’s case may reasonably charge a larger fee than one who spends only a short period of time working on the case. While lawyer and client might be able to anticipate the amount of time necessary for completion of the work as initially contemplated, the client may make some decision in the midst of the representation which reduces the amount of the lawyer’s work, the client may die, the lawyer may die or be disbarred, or the client may fire the lawyer. In each of these cases, fees already paid would have to be returned and/or the client obligations for future payments amended. RPC 1.16(d) and RPC 1.5, Comment 4.

What constitutes an irrevocable expenditure satisfying the Medicaid eligibility requirements is a legal question which this Committee may not answer. However, if the applicable regulations would prohibit adjustment of an agreed fee in light of the work actually done when the representation is ended, then the inquiring lawyer cannot enter into the kind of fee agreement he is proposing.
1132 1988 RPC 5.4(a) Lawyer as mediator; intermediary; division of fees with nonlawyer The Committee considered your inquiry regarding further clarification of the conduct of lawyers who act as members of mediation teams through [a mediation service.] Your specific inquiry was whether once the mediation had been successfully completed, and at the request of the parties, the mediation team could continue to act as intermediary. The Committee was of the opinion that a lawyer acting as intermediary is practicing law, and that RPC 5.4(a) prohibits a lawyer from sharing fees with nonlawyers, and therefore while the lawyer could privately act as an intermediary, the lawyer could not do so as a part of a mediation team as [the mediation service].
1417 1991 RPC 1.5(e)(2); 1.6 Client confidence or secret; division of fees; paying another lawyer to review draft wills The Committee reviewed your inquiry concerning the practice of asking other lawyers to review wills prepared by you on behalf of clients without the knowledge or consent of the client, for which you would pay the reviewing lawyer a fee. The Committee was of the opinion that RPC 1.6 requires prior to disclosing any client confidences or secrets, that you have the consent of the clients to do so. In addition, dividing a fee with another lawyer without your client's agreement would violate RPC 1.5(e)(2).
1219 1988 RPC 1.5(e); 1.8(f); 1.8(h); 1.10 Division of fees; limitation of liability; imputed disqualification; conflict of interest; advertising; contract lawyer The Committee reviewed your inquiry regarding your establishment of a legal research and writing business for the purpose of research and drafting legal memoranda, briefs, and pleadings for law firms. The Committee understood that in that capacity, lawyers or law firms would be your sole clients.

Based upon those facts, the Committee was of the opinion that RPC 1.5(e) and 1.8(f) would not apply to your situation. Since there is no requirement that any lawyer maintain legal malpractice insurance, the Committee was of the opinion that the Rules of Professional Conduct placed no requirement upon you to disclose that to the lawyers or law firms with whom you contract.

Further, the Committee was of the opinion that where your client is a lawyer, RPC 1.8(h) would not require separate advice to that lawyer that independent representation is appropriate in connection with any agreement prospectively limiting your liability for malpractice.

The Committee agreed with your analysis that under RPC 1.10 you could not work on the identical case for adverse law firms, but the mere fact that you may have worked for a law firm would not preclude you from accepting employment from another firm who may have pending matters with the first law firm.

Regarding your proposed advertisement, the Committee can only say that it cannot be misleading or deceptive.
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