Can a legal-services agency require a client to waive statutory attorney-fee claims as a condition of representation?

Plain-English summary

The inquiry concerned the ethical obligations of legal-services lawyers to preserve a client's right to attorney's fees under fee-shifting statutes. The committee concluded that the legal-services agency may condition representation of the client on waiver or relinquishment of state or federal claims for attorney's fees if, and only if, in the reasonable opinion of the lawyer, the waiver or relinquishment will not effectively preclude the lawyer from providing competent representation, the lawyer has consulted with the client about the limitations of the representation, and the lawyer has obtained written consent to that representation. If the lawyer's opinion is to the contrary or consent is not obtained, the agency must decline representation of the client.

The committee further stated that if, in the lawyer's opinion, the representation can proceed, consent is obtained, and the correct interpretation of the Legal Services Corporation Act allows the agency to identify, protect, and preserve the claim for fees in the course of representation, then such claims must be so identified, preserved, and protected. The committee gave no opinion on whether the Act in fact allows such conduct.

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 Treat this page as historical context, not current guidance.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 1.2 (scope of representation) and 1.7 (conflicts of interest).

Common questions

Q: Can a legal-services agency make a client waive statutory attorney-fee claims to get representation?

A: The committee said it may, but only if the lawyer reasonably concludes the waiver will not preclude competent representation and the lawyer has consulted the client and obtained written consent.

Q: What happens if the lawyer cannot give competent representation under the waiver, or the client does not consent?

A: The committee said the agency must decline representation of the client.

Q: Did the committee decide whether the Legal Services Corporation Act allows preserving the fee claim?

A: No. The committee said that if the Act allows the agency to identify, protect, and preserve the fee claim, those claims must be preserved, but it gave no opinion on whether the Act in fact allows that conduct.

Background and rules framework

The opinion applied RPC 1.2 (scope of representation) and RPC 1.7 (conflicts of interest), corresponding to ABA Model Rules 1.2 and 1.7. The committee framed the fee-waiver condition as turning on whether the lawyer can still provide competent representation and whether the client has been consulted and consented in writing, and it expressly declined to interpret the Legal Services Corporation Act.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation and allocation of authority); Washington RPC 1.2
• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7

Statutes:

• Legal Services Corporation Act (referenced; the committee gave no opinion on its interpretation)

See also

• WA Ethics Op. 1742: Opposing a Former Divorce Client
• WA Ethics Op. 1739: Friendship Limits HOA Representation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=932

Original opinion text

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

Advisory Opinion: 1741
Year Issued: 1997
RPC(s): RPC 1.2; 1.7
Subject: Obligation of legal service lawyers to preserve a client's right to attorney's fees under fee shifting statutes

Your inquiry involved the ethical obligations of legal service lawyers to preserve a client's right to attorney's fees under fee shifting statutes. The RPC Committee's response to your inquiry is that the [the legal services agency] may condition representation of the client on waiver or relinquishment of State or Federal claims for attorney's fees if, and only if, in the reasonable opinion of the lawyer, such waiver or relinquishment will not effectively preclude the lawyer from providing competent representation, the lawyer has consulted with the client about the limitations of representation and has obtained written consent to that representation. If the opinion of the lawyer is to the contrary or consent is not obtained, [the legal services agency] must decline representation of the client.

If in the opinion of the lawyer the representation can proceed, consent is obtained and the correct interpretation of the Legal Services Corporation Act (Act) allows [the legal services agency], in the course of representation, to identify, protect, and preserve the claim for fees then such claims must be so identified, preserved and protected. The Committee gives no opinion here as to whether or not the Act in fact allows such conduct.