Can a lawyer who co-owns a construction consulting firm steer the firm's clients to his law practice and use his consulting partner as an expert witness?

Plain-English summary

The inquiring lawyer partly owned a construction consulting business with a nonlawyer. He asked whether he could represent clients of that company, whether the company's other employee could testify as an expert witness for him when he represented a company client in an action involving the consulting company's findings, and whether informed consent could permit an otherwise impermissible representation. The committee described the plan as identifying potential legal clients from among the consulting business's clients, advising those clients to hire the inquirer as their attorney, and using the inquirer's consulting partner as an expert witness to avoid difficulties with RPC 3.7 (the lawyer-as-witness rule).

The committee concluded that using either the consulting business to refer legal business to the law practice, or the law practice to refer business to the consulting business, including expert testimony, violates RPC 1.7(b) and 1.8(a). It cited Formal Opinion 187 and Informal Opinion 1926. It added that there may be a violation of RPC 1.6 and 7.3 depending on the circumstances. The committee believed these conflicts may not be waivable because they were so likely to occur.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The conflict-of-interest rules the opinion applies, RPC 1.7 and 1.8, were restructured in that revision. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer refer his consulting firm's clients to his own law practice?

A: No. The committee said using the consulting business to refer legal business to the law practice (or vice versa) violates RPC 1.7(b) and 1.8(a).

Q: Can the lawyer use his consulting partner as an expert witness to avoid the lawyer-as-witness rule?

A: No. The committee treated that cross-referral of expert testimony as part of the same impermissible arrangement violating RPC 1.7(b) and 1.8(a), with possible RPC 1.6 and 7.3 problems.

Q: Could informed consent cure the conflict?

A: The committee believed these conflicts may not be waivable because they were so likely to occur, so consent would not necessarily cure them.

Background and rules framework

The opinion applies Washington RPC 1.7(b) and 1.8(a) (conflicts of interest and business transactions; corresponding to Model Rules 1.7 and 1.8) to a lawyer cross-referring between his law practice and a co-owned consulting business, and references RPC 3.7 (lawyer as witness; Model Rule 3.7), RPC 1.6 (confidentiality; Model Rule 1.6), and RPC 7.3 (solicitation; Model Rule 7.3). It cites Formal Opinion 187 and Informal Opinion 1926 for the related separate-business and dual-role analysis.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Washington RPC 1.7(b) (conflict of interest; general rule)
• Model Rule 1.8 / Washington RPC 1.8(a) (business transactions with clients)
• Model Rule 3.7 / Washington RPC 3.7 (lawyer as witness)
• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information)
• Model Rule 7.3 / Washington RPC 7.3 (direct contact with prospective clients)

Other opinions cited:

• WSBA Formal Opinion 187: separate businesses and referrals
• WSBA Informal Opinion 1926: dual-role advising and selling

See also

• WSBA Ethics Op. 1926: Advising and Selling Insurance
• WSBA Ethics Op. 1874: Selling Investments While Practicing Law
• WSBA Ethics Op. 1488: A Law Practice and a Separate Business

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1171

Original opinion text

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

Advisory Opinion: 1931
Year Issued: 2000
RPC(s): RPC 1.6; 1.79b); 1.8(a); 3.7; Formal Opinion 187
Subject: Possible conflicts of interest when acting as a construction consultant and as an attorney

[Editor's Note: Ethics inquiry #1931 concerns possible conflicts of interest when acting as a construction consultant and as an attorney.]

The Committee has reviewed your inquiry and determined the following:

The inquiring lawyer asks if a lawyer who owns a substantial interest in and is employed by a consulting company represent clients of that company; may the other employee of the company testify as an expert witness for the inquiring lawyer when the lawyer is the legal representative of a client of the company in an action involving the findings of the consulting company; and can informed consent allow an otherwise impermissible representation.

The committee stated that the inquirer partly owns a consulting business with a non-lawyer. The inquirer proposes to identify potential legal clients from among the consulting business clients, to advise the consulting clients to hire the inquirer as their attorney and to use the inquirer’s consulting partner as an expert witness to avoid possible difficulties with RPC 3.7.

Using either the consulting business to refer legal business to the inquirer’s law practice or the law practice to refer business to the consulting business, including expert testimony, is a violation of RPC 1.7(b) and 1.8(a). See Formal Opinion 187 and Informal Opinion 1926 (enclosed). There may be a violation of RPC 1.6 and 7.3 depending on circumstances. The committee believes these conflicts may not be waiveable because they are so likely to occur.