Can a lawyer file a malpractice claim for a client against the client's former lawyer, and does the lawyer have to report that lawyer?

Plain-English summary

The committee said that filing formal allegations of malpractice on a client's behalf against the client's former attorney would not violate RPC 1.8(j). It cautioned that, without further detail, it could not say whether any other ethical rules would be violated, and referred the inquirer to RPC 8.3 in assessing the duty to report attorney misconduct and to the rule on meritorious claims.

The committee added that the decision whether to report misconduct must be based on consultation with the client and the requirements of RPC 1.6, and on the requirements of RPC 1.7(b). Under RPC 1.7(b), the lawyer must evaluate whether the lawyer's relationship with other lawyers would influence the lawyer's independent professional judgment in making this decision.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 cited rules correspond to ABA Model Rules 1.6 (confidentiality), 1.7 (conflicts), 1.8 (specific conflict rules), 3.1 (meritorious claims), and 8.3 (reporting professional misconduct).

Common questions

Q: Can a lawyer bring a malpractice claim for a client against the client's prior lawyer?

A: The committee said that filing such malpractice allegations on the client's behalf would not violate RPC 1.8(j).

Q: Does the lawyer also have to report the former lawyer?

A: The committee referred the lawyer to RPC 8.3 to assess the duty to report misconduct, and said the decision must rest on client consultation under RPC 1.6 and an RPC 1.7(b) evaluation.

Q: What does RPC 1.7(b) require here?

A: The committee said the lawyer must evaluate whether the lawyer's relationship with other lawyers would influence the lawyer's independent professional judgment in deciding whether to report.

Background and rules framework

The opinion applied RPC 1.8(j) (corresponding to ABA Model Rule 1.8) to clear the malpractice filing itself, then framed the reporting question under RPC 8.3 (reporting professional misconduct, corresponding to ABA Model Rule 8.3), RPC 1.6 (confidentiality and the need to consult the client, corresponding to ABA Model Rule 1.6), and RPC 1.7(b) (independent professional judgment given relationships with other lawyers, corresponding to ABA Model Rule 1.7). It also pointed to the meritorious-claims requirement.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality); Washington RPC 1.6
• ABA Model Rule 1.7 (conflicts of interest); Washington RPC 1.7(b)
• ABA Model Rule 1.8 (specific conflict-of-interest rules); Washington RPC 1.8(j)
• ABA Model Rule 3.1 (meritorious claims and contentions); Washington RPC 3.1
• ABA Model Rule 8.3 (reporting professional misconduct); Washington RPC 8.3

See also

• WA Ethics Op. 1633: Reporting a Former Partner's Theft
• WA Ethics Op. 1677: Suing a Client for Unpaid Costs

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=775

Original opinion text

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

Advisory Opinion: 1701
Year Issued: 1997
RPC(s): RPC 1.6; 1.7(b); 1.8(j), 3.1; 8.3
Subject: Filing malpractice case against client's former lawyer

Filing formal allegations of malpractice on a client's behalf against the client's former attorney would not violate RPC 1.8(j). However, without further detail and/or information, the Committee cannot offer any insight into whether any other ethical rules would be violated. The Committee refers you to RPC 8.3 in assessing your duty to report attorney misconduct . You should also refer to RPC 1.3 regarding meritorious claims.

Your decision regarding whether to report misconduct must be based on (1) consultation with your client and the requirements of RPC 1.6, and [2] the requirements of RPC 1.7(b). Under RPC 1.7(b) you must evaluate whether your relationship with other lawyers would influence your independent professional judgment in making this decision.