If a lawyer runs a legal research and writing business serving only law firms, do the fee-splitting, third-party-payment, and conflict rules apply?

Plain-English summary

The inquiry came from a lawyer establishing a legal research and writing business that would research and draft legal memoranda, briefs, and pleadings for law firms. The committee understood that in that capacity, lawyers or law firms would be the inquirer's sole clients.

On those facts, the committee was of the opinion that RPC 1.5(e) (division of fees) and RPC 1.8(f) (compensation from a third party) would not apply. Because no rule requires a lawyer to maintain legal malpractice insurance, the committee was of the opinion that the Rules of Professional Conduct placed no requirement on the inquirer to disclose the absence of insurance to the lawyers or firms with whom the inquirer contracts.

The committee further was of the opinion that, where the client is a lawyer, RPC 1.8(h) would not require separate advice to that lawyer that independent representation is appropriate in connection with an agreement prospectively limiting the inquirer's malpractice liability. On conflicts, the committee agreed that under RPC 1.10 the inquirer could not work on the identical case for adverse law firms, but the mere fact of having worked for one firm would not preclude accepting employment from another firm that may have matters pending with the first. As to the proposed advertisement, the committee said only that it cannot be misleading or deceptive.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rules it discusses (RPC 1.5(e) division of fees, RPC 1.8(f) and (h) third-party compensation and limiting liability, RPC 1.10 imputed disqualification) correspond to Model Rules 1.5, 1.8, and 1.10 and have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does the division-of-fees rule apply when a contract lawyer's only clients are law firms?

A: Per the opinion, no. The committee was of the opinion that RPC 1.5(e) and RPC 1.8(f) would not apply where lawyers or law firms are the contract lawyer's sole clients.

Q: Must a contract lawyer tell the hiring firms that the lawyer carries no malpractice insurance?

A: No. The committee reasoned that because no rule requires a lawyer to maintain malpractice insurance, the Rules of Professional Conduct imposed no requirement to disclose its absence to the firms with whom the lawyer contracts.

Q: Before limiting malpractice liability to a lawyer-client, must the contract lawyer advise that lawyer to seek separate counsel?

A: Per the opinion, no. Where the client is itself a lawyer, the committee was of the opinion that RPC 1.8(h) would not require separate advice that independent representation is appropriate in connection with an agreement prospectively limiting liability for malpractice.

Q: Can the contract lawyer take work from a firm that has cases pending against a firm the lawyer previously worked for?

A: Per the opinion, yes, as a general matter. The committee agreed that under RPC 1.10 the lawyer could not work the identical case for adverse firms, but said the mere fact of having worked for one firm would not preclude accepting employment from another firm with matters pending against the first.

Background and rules framework

The opinion applies Washington RPC 1.5(e) (division of fees), RPC 1.8(f) (accepting compensation from someone other than the client), RPC 1.8(h) (prospectively limiting liability for malpractice), and RPC 1.10 (imputed disqualification), corresponding to Model Rules 1.5, 1.8, and 1.10. The committee made each result turn on the structure of the inquirer's practice: the clients are themselves lawyers or law firms, so the fee-division and third-party-payment rules do not reach the arrangement, the limiting-liability advice rule does not apply where the client is a lawyer, and imputed disqualification bars only work on the identical case for adverse firms.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.5(e) (division of fees), corresponding to Model Rule 1.5.
• Washington RPC 1.8(f) (compensation from a third party), corresponding to Model Rule 1.8.
• Washington RPC 1.8(h) (prospectively limiting liability for malpractice), corresponding to Model Rule 1.8.
• Washington RPC 1.10 (imputed disqualification), corresponding to Model Rule 1.10.

See also

• WSBA Ethics Op. 911: a contract attorney working for several firms and conflicts with the old firm
• WSBA Ethics Op. 989: malpractice release tied to an abandoned fee claim
• WSBA Ethics Op. 1004: agreements that prospectively limit a firm's malpractice liability

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=299

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1219
Year Issued: 1988
RPC(s): RPC 1.5(e); 1.8(f); 1.8(h); 1.10
Subject: 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.