Can a divorce lawyer take a security interest in real property to secure the fee in a marriage dissolution case?

Plain-English summary

A lawyer asked about taking an interest in real property that is the subject matter of a marriage dissolution proceeding, to secure the fee. The committee was of the opinion that, since in a dissolution all property is at issue, this would constitute taking an interest in the subject matter of litigation in violation of RPC 1.8(j).

The committee added that, because whether the lawyer's client would have an ownership interest in the real property is contingent on the outcome of the case, it would also violate RPC 1.5(e).

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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. Under Washington's pre-2006 numbering, RPC 1.8(j) corresponds to the bar on acquiring a proprietary interest in the subject of litigation, now ABA Model Rule 1.8(i).

Common questions

Q: Can a divorce lawyer secure the fee with an interest in property being divided?

A: No. The committee said that because all property is at issue in a dissolution, taking an interest in the real property is taking an interest in the subject matter of litigation, which violates RPC 1.8(j).

Q: Why does the contingent nature of the interest matter?

A: The committee said that because the client's ownership of the property is contingent on the outcome of the case, the arrangement also violates RPC 1.5(e).

Background and rules framework

The opinion applied RPC 1.8(j) (Washington's pre-2006 bar on acquiring a proprietary interest in the subject of litigation, corresponding to ABA Model Rule 1.8(i)) and RPC 1.5(e) (within ABA Model Rule 1.5 on fees). The committee treated the security interest as both a forbidden proprietary interest in litigated property and a fee made contingent on the outcome of a dissolution.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.5 (fees); Washington RPC 1.5(e)
• ABA Model Rule 1.8(i) (proprietary interest in subject of litigation); Washington RPC 1.8(j)

See also

• WA Ethics Op. 1582: Security Interest in Property That Is the Subject of Litigation
• WA Ethics Op. 1074: Contingent Fee in a Non-Marital Domestic Partnership Dissolution

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=677

Original opinion text

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

Advisory Opinion: 1595
Year Issued: 1995
RPC(s): RPC 1.5; 1.8(j)
Subject: Security interest in real property to secure fee in dissolution

The Committee reviewed your inquiry concerning taking an interest in real property which is the subject matter of a marriage dissolution proceeding. The Committee was of the opinion that, since in a dissolution all property is at issue, this would constitute taking an interest in the subject matter of litigation in violation of RPC 1.8(j). In addition, since the question of whether the lawyer's client would have an ownership interest in the real property is contingent upon the outcome of the case, it would violate RPC 1.5(e).