Can a lawyer put a clause in a fee agreement making it binding on the client's heirs?

Plain-English summary

The inquiry concerned a lawyer including in a fee agreement a provision that the agreement is binding on the client's heirs. The committee stated that a lawyer faced with a situation where the client dies during the pendency of litigation is not without a remedy: under the Probate Code, the lawyer may petition the court as a creditor to commence a probate and may file a claim under the applicable statutes for any fees the lawyer has earned, and under appropriate circumstances the court may order the lawyer to pursue the claim on behalf of the estate.

The committee concluded that the proposed language in the fee agreement is contrary to RPC 1.7(b), 1.8(a), and 1.8(j).

Currency note

This opinion was issued in 1998, 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 Treat this page as historical context, not current guidance.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 1.7 (conflicts of interest) and 1.8 (specific current-client conflicts, including business transactions with a client). Verify the current rule numbering and subsection lettering before relying on the citations here.

Common questions

Q: Can a fee agreement be made binding on the client's heirs?

A: The committee concluded that the proposed language binding the client's heirs is contrary to RPC 1.7(b), 1.8(a), and 1.8(j).

Q: What can a lawyer do if the client dies during litigation with fees still owed?

A: The committee said the lawyer is not without a remedy: under the Probate Code, the lawyer may petition the court as a creditor to commence a probate and file a claim for earned fees.

Q: Can the lawyer be directed to pursue the claim for the estate?

A: The committee said that, under appropriate circumstances, the court may order the lawyer to pursue the claim on behalf of the estate.

Background and rules framework

The opinion applied RPC 1.7(b) (conflicts arising from the lawyer's own interests) and RPC 1.8(a) and 1.8(j) (specific current-client conflicts), corresponding to ABA Model Rules 1.7 and 1.8. The committee treated a clause binding the client's heirs as contrary to those rules, pointing instead to a probate creditor's claim as the lawyer's avenue to recover earned fees.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflict of interest: current clients); Washington RPC 1.7(b)
• ABA Model Rule 1.8 (conflict of interest: current clients; specific rules); Washington RPC 1.8(a), 1.8(j)

Statutes:

• Washington Probate Code (referenced for a lawyer's creditor's claim for earned fees against a deceased client's estate)

See also

• WA Ethics Op. 1736: Hold-Harmless Pledge of Lawyer Credit
• WA Ethics Op. 1751: Auto-Withdrawal for Unpaid Fees

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=996

Original opinion text

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

Advisory Opinion: 1803
Year Issued: 1998
RPC(s): RPC 1.7(b); 1.8(a); 1.8(j)
Subject: Clause in fee agreement making agreement binding on client's heirs

The Committee researched and reviewed your inquiry concerning a lawyer including in a fee agreement the provision that the agreement is binding on heirs and determined the following:

The lawyer faced with a situation where his or her client dies during the pendency of litigation is not without a remedy. Under the Probate Code, the lawyer may petition the court as a creditor to commence a probate and may file a claim under the applicable statutes for any fees that the lawyer has earned. Under appropriate circumstances, the court may order the lawyer to pursue the claim on behalf of the estate. The proposed language in the fee agreement is contrary to RPC 1.7(b), 1.8(a) and 1.8(j).