Can a lawyer push a current client into ADR or sue the client over an unpaid fee, and must contact go through the client's lawyer?

Plain-English summary

The inquirer had performed and continued to perform work for a client without a final written compensation agreement, and asked about the ethics of pressing the resulting fee dispute. On the first question, whether the lawyer could try to persuade the client to resolve the compensation dispute through alternative dispute resolution, the committee concluded that nothing in the Rules prohibits trying to persuade a client to use ADR, but that under RPC 4.2 the lawyer must not communicate directly with the client about this matter and must instead communicate through the client's attorney.

On the second question, whether the lawyer could take legal action against the client, the committee decided that, assuming the lawyer can meet the requirements of RPC 1.7, 1.8, 3.1, and Civil Rule 11, the lawyer may pursue legal action against the client.

Currency note

This opinion was issued in 1996, 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.7, 1.8, 3.1, and 4.2 correspond to ABA Model Rules 1.7 (conflicts), 1.8 (specific conflict rules), 3.1 (meritorious claims), and 4.2 (communication with represented persons).

Common questions

Q: Can a lawyer ask a current client to take a fee dispute to ADR?

A: The committee concluded that nothing in the Rules prohibits trying to persuade a client to use ADR for the compensation dispute.

Q: Can the lawyer raise the fee dispute directly with the client?

A: No. The committee said that under RPC 4.2 the lawyer must communicate through the client's attorney about this matter, not directly with the client.

Q: Can the lawyer sue the client over the fee?

A: The committee said the lawyer may pursue legal action against the client if the requirements of RPC 1.7, 1.8, 3.1, and Civil Rule 11 are satisfied.

Background and rules framework

The opinion applied RPC 4.2 (communication with a represented person, corresponding to ABA Model Rule 4.2) to bar direct contact with the client about the dispute, and conditioned any suit on RPC 1.7 and 1.8 (conflicts of interest, corresponding to ABA Model Rules 1.7 and 1.8), RPC 3.1 (meritorious claims and contentions, corresponding to ABA Model Rule 3.1), and Washington Civil Rule 11. The committee did not resolve whether those requirements were met; it set them as the conditions for proceeding.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7
• ABA Model Rule 1.8 (specific conflict-of-interest rules); Washington RPC 1.8
• ABA Model Rule 3.1 (meritorious claims and contentions); Washington RPC 3.1
• ABA Model Rule 4.2 (communication with represented persons); Washington RPC 4.2

Other authority:

• Washington Civil Rule (CR) 11 (signing of pleadings; sanctions)

See also

• WA Ethics Op. 1677: Suing a Client for Unpaid Costs
• WA Ethics Op. 1666: Suing a Client on a Bounced Check
• WA Ethics Op. 1664: When a Client Won't Cash a Trust Check

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=752

Original opinion text

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

Advisory Opinion: 1678
Year Issued: 1996
RPC(s): RPC 1.7; 1.8; 3.1; 4.2
Subject: Dispute with client; alternative dispute resolution; lawsuit against current client

The Committee discussed your inquiry regarding the ethical considerations involved in taking legal action against a client and taking steps to enter alternative dispute resolution with a client. In your inquiry, you stated you had performed and continue to perform work for a client without a final written agreement regarding your compensation. Your first question was whether the Rules of Professional Conduct allow you to try to persuade your client to resolve the contractual dispute regarding your compensation through alternative dispute resolution. The Committee concluded that nothing in the Rules prohibits you from trying to persuade your client to use alternative dispute resolution, but under RPC 4.2, you must not communicate directly with your client about this matter, but must communicate through the client's attorney. In response to your second question regarding the ethical considerations of taking legal action against your client in the matter, the Committee decided that, assuming you can meet the requirements of RPC 1.7, 1.8, 3.1 and CR 11, you may pursue legal action against your client.