Does a lawyer have to convey a creditor's bankruptcy reaffirmation offer to the client?

Plain-English summary

The inquiring lawyer asked whether a lawyer has an ethical duty to convey a creditor's offer of reaffirmation of a bankruptcy client's debt.

The committee explained that RPC 1.4 does not contain a requirement to transmit all correspondence to a client or discuss it with the client. Instead, RPC 1.4 provides that a lawyer must keep a client reasonably informed about the status of a matter, promptly comply with reasonable requests for information, and explain a matter to the extent reasonably necessary to permit the client to make informed decisions.

The committee said the substantive law and the facts of individual cases dictate whether particular items of correspondence should be transmitted to, or discussed with, a client to comply with the RPC 1.4(a) duty to keep a client reasonably informed. It added that authorities beyond RPC 1.4 suggest a lawyer's duty includes informing the client of the substance of any settlement offer under RPC 1.2(a), unless prior discussions with the client made clear that the proposal is unacceptable. Whether the reaffirmation offer was such a settlement offer, or was otherwise material to the representation, the committee said, were matters of substantive bankruptcy law beyond its purview. It noted that if the creditor's letter had also been sent to the client, RPC 1.4(b) would be implicated, requiring the lawyer to explain the matter to the extent reasonably necessary for an informed decision.

Currency note

This opinion was issued in 2002, 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 Treat this page as historical context, not current guidance.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.

In practice

Under the Washington rules as they stood at the time of the opinion, a lawyer was not required to forward every piece of correspondence, but had to keep the client reasonably informed and, under RPC 1.2(a), to convey the substance of any settlement offer unless the client had already made clear it would be unacceptable. The opinion stopped at the ethics line: whether a particular bankruptcy reaffirmation offer is a "settlement offer" or otherwise material is a substantive-law question the committee did not decide.

Common questions

Q: Must a lawyer forward every letter from an opposing party to the client?

A: No. The committee said RPC 1.4 does not require transmitting all correspondence; it requires keeping the client reasonably informed and complying with reasonable requests for information.

Q: Does a settlement offer have to be communicated?

A: The committee said a lawyer's duty to keep a client reasonably informed includes informing the client of the substance of any settlement offer under RPC 1.2(a), unless prior discussions made clear the proposal is unacceptable.

Q: Did the committee decide whether a reaffirmation offer is a settlement offer?

A: No. The committee said whether the reaffirmation offer was a settlement offer or otherwise material was a matter of substantive bankruptcy law beyond its purview.

Background and rules framework

The opinion applies Washington RPC 1.4 (communication; keeping the client reasonably informed; corresponding to Model Rule 1.4), including RPC 1.4(a) and 1.4(b), and reads in RPC 1.2(a) (scope of representation; abiding by the client's decisions, including on settlement; Model Rule 1.2) for the duty to convey settlement offers. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / Washington RPC 1.4(a), (b) (communication; keeping the client reasonably informed)
• Model Rule 1.2 / Washington RPC 1.2(a) (scope of representation; client decisions on settlement)

See also

• WSBA Ethics Op. 1517: Contingent-Fee Terms and Settlement Authority
• WSBA Ethics Op. 1434: Legal-Services Agency Negotiating a Claim Apart From Fees
• WSBA Ethics Op. 1943: Ethics Rules for a Government Lawyer and Bad-Faith Litigation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1214

Original opinion text

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

Advisory Opinion: 1973
Year Issued: 2002
RPC(s): RPC 1.4, RPC 1.2(a)
Subject: Communication with client about a creditor`s reaffirmation agreement

The inquiring lawyer asks whether a lawyer has an ethical duty to convey a creditor’s offer of reaffirmation of a bankruptcy client’s debt. The committee opined that RPC 1.4 dealing with communication does not contain a requirement to transmit all correspondence to a client or discuss it with the client. Rather, RPC 1.4 provides that a lawyer has an ethical duty to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information and shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The substantive law and the facts of individual cases will dictate whether particular items of correspondence should be transmitted to, or discussed with, a client in order to comply with a lawyer’s duty under RPC 1.4(a) to “. . . keep a client reasonably informed.” Authorities beyond the text of RPC 1.4 also suggest that a lawyer’s duty to keep a client reasonably informed includes an obligation to inform the client of the substance of any offer of settlement (RPC 1.2(a)), unless prior discussions with the client have made clear that the proposal is unacceptable. Whether the reaffirmation offer involved in the inquiry constitutes such a settlement offer or is otherwise material to your representation of your client appear to be matters of substantive bankruptcy law beyond the purview of the committee. If the letter from the creditor also has been sent to the client, RPC 1.4(b) would also be implicated thereby requiring the lawyer to explain the matter to the extent reasonably necessary to allow the client to make an informed decision.