Can a lawyer take a will contest on a contingent fee and represent two clients in the same contest?

Plain-English summary

A lawyer asked about representing two clients in a will contest proceeding. The committee was of the opinion that nothing in the Rules of Professional Conduct would prohibit a lawyer from accepting such employment on a contingent fee basis.

The committee also addressed whether the lawyer may represent two parties in the same will contest, and whether the lawyer may subsequently represent one of those parties as personal representative probating the will. Assuming there is no present conflict between the parties, the committee was of the opinion that such representation would be permissible, but directed the lawyer's attention to RPC 1.7(b) as to potential future conflicts of which the clients should be advised.

Currency note

This opinion was issued in 1992, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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 a lawyer take a will contest on a contingent fee?

A: The committee was of the opinion that nothing in the Rules of Professional Conduct would prohibit accepting such employment on a contingent fee basis.

Q: Can the lawyer represent two parties in the same will contest?

A: Assuming no present conflict between the parties, the committee said such representation would be permissible, with attention to RPC 1.7(b) on potential future conflicts.

Q: Can the lawyer later serve one client as personal representative probating the will?

A: The committee addressed this together with the joint representation and concluded it would be permissible absent a present conflict, again pointing to RPC 1.7(b) for future conflicts the clients should be advised about.

Background and rules framework

The opinion applied RPC 1.5(c) (contingent fees) and RPC 1.7(b) (conflict of interest involving the lawyer's responsibilities to multiple clients), corresponding to ABA Model Rules 1.5 and 1.7. The committee found no bar to a contingent fee in the will-contest context and treated the joint representation as permissible only so long as no present conflict existed, with the clients to be advised about potential future conflicts.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.5 (fees; contingent fees); Washington RPC 1.5(c)
• ABA Model Rule 1.7 (conflict of interest; current clients); Washington RPC 1.7(b)

See also

• ABA Formal Op. 94-389: Contingent Fees
• WA Ethics Op. 1467: Representing One Spouse After Conflict

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=558

Original opinion text

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

Advisory Opinion: 1478
Year Issued: 1992
RPC(s): RPC 1.5(c); 1.7
Subject: Contingent fee in will context; conflict of interest; representation of two parties in will contest

The Committee reviewed your inquiry regarding representation of two clients in a will contest proceeding. The Committee was of the opinion that nothing in the Rules of Professional Conduct would prohibit a lawyer from accepting such employment on a contingent fee basis. The Committee also reviewed the issue of whether the lawyer may properly represent two parties in the same will contest, and whether the lawyer may subsequently represent one of those parties as personal representative probating the will. The Committee was of the opinion that, assuming there is no present conflict between the parties, such representation would be permissible, but directs your attention to RPC 1.7(b) as to potential future conflicts of which your clients should be advised.