Can an insurance company's in-house counsel offer to pay outside lawyers an hour of fees to explain the company's product to those lawyers' own clients?

Plain-English summary

The inquiring in-house counsel described an insurance marketing program in which the insurer would pay lawyers' fees for spending one hour explaining the insurer's product to the lawyers' own clients. The committee was of the opinion that the Rules of Professional Conduct would not permit counsel to offer the program to lawyers.

As in-house counsel, the inquirer should reasonably know that the marketing plan presents a substantial likelihood of inducing some lawyers to violate RPC 1.8(f) and 5.4(c). Doing so would in all likelihood constitute a violation of RPC 8.4(a), which prohibits a lawyer from knowingly assisting or inducing another to violate, or attempt to violate, the Rules of Professional Conduct.

Currency note

This opinion was issued in 1990, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can an insurer pay a lawyer to spend time explaining the insurer's product to that lawyer's client?

A: Under this 1990 opinion, the program could not be offered; the committee was of the opinion that it presented a substantial likelihood of inducing lawyers to violate the third-party-payment and professional-independence rules.

Q: Which rules would the participating lawyers risk violating?

A: RPC 1.8(f), on accepting compensation from someone other than the client, and RPC 5.4(c), on a third party directing or regulating the lawyer's professional judgment.

Q: Why was the in-house counsel who proposed it implicated?

A: The committee was of the opinion that, as in-house counsel who should reasonably know the plan would induce those violations, offering it would in all likelihood violate RPC 8.4(a), which bars knowingly inducing another to violate the rules.

Background and rules framework

At the time of this opinion, Washington's RPC 1.8(f) limited a lawyer's acceptance of compensation from one other than the client, RPC 5.4(c) protected the lawyer's professional independence from a paying third party, and RPC 8.4(a) prohibited knowingly assisting or inducing another to violate the rules. These correspond to Model Rules 1.8(f), 5.4(c), and 8.4(a). The committee tied the in-house counsel's own exposure to the foreseeable effect of the program on participating lawyers.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.8(f) (compensation from a third party)
• ABA Model Rule 5.4(c) (professional independence)
• ABA Model Rule 8.4(a) (inducing another's violation)
• Washington RPC 1.8(f), 5.4(c), 8.4(a)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=426

Original opinion text

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

The Committee reviewed your inquiry concerning an insurance marketing program whereby your client would pay lawyers' fees for spending one hour explaining to their clients the insurance offered by your client. The Committee was of the opinion that the Rules of Professional Conduct would not permit you to offer this program to lawyers because as in-house counsel, you should reasonably know that this marketing plan presents a substantial likelihood that it would induce some lawyers to violate Rules 1.8(f) and 5.4(c) which would in all likelihood constitute a violation of Rule 8.4(a), which prohibits a lawyer from knowingly assisting or inducing another to violate or attempt to violate the Rules of Professional Conduct.