Rule 1.8. Conflict of Interest: Current Clients: Specific Rules

RPC 1.8

CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire

an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1) the transaction and terms on which the lawyer acquires the interest are fair and

reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be

reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking and is given a reasonable

opportunity to seek the advice of an independent lawyer on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms

of the transaction and the lawyer’s role in the transaction, including whether the lawyer is

representing the client in the transaction.

(b) A lawyer shall not use information relating to representation of a client to the

disadvantage of the client unless the client gives informed consent, except as permitted or

required by these Rules.

(c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift,

or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer

any substantial gift unless the lawyer or other recipient of the gift is related to the client. For

purposes of this paragraph, related persons include spouse, child, grandchild, parent, grandparent

or other relative or individual with who the lawyer or the client maintains a close, familial

relationship.

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate

an agreement giving the lawyer literary or media rights to a portrayal or account based in

substantial part on information relating to the representation.

, grandchild, parent, grandparent

or other relative or individual with who the lawyer or the client maintains a close, familial

relationship.

(d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate

an agreement giving the lawyer literary or media rights to a portrayal or account based in

substantial part on information relating to the representation.

(e) A lawyer shall not, while representing a client in connection with contemplated or

pending litigation, advance or guarantee financial assistance to a client, except that:

(1) a lawyer may advance or guarantee the expenses of litigation, including court costs,

expenses of investigation, expenses of medical examination, and costs of obtaining and

presenting evidence, provided the client remains ultimately liable for such expenses; and

(2) in matters maintained as class actions only, repayment of expenses of litigation may be

contingent on the outcome of the matter.

(f) A lawyer shall not accept compensation for representing a client from one other than the

client unless:

(1) the client gives informed consent;

(2) there is no interference with the lawyer's independence of professional judgment or with

the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

(g) A lawyer who represents two or more clients shall not participate in making an

aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated

agreement as to guilty or nolo contendere pleas, unless each client gives informed consent,

confirmed in writing. The lawyer’s disclosure shall include the existence and nature of all the

claims or pleas involved and the participation of each person in the settlement.

ot participate in making an

aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated

agreement as to guilty or nolo contendere pleas, unless each client gives informed consent,

confirmed in writing. The lawyer’s disclosure shall include the existence and nature of all the

claims or pleas involved and the participation of each person in the settlement.

(h) A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer's liability to a client for

malpractice unless permitted by law and the client is independently represented by a lawyer in

making the agreement; or

(2) settle a claim or potential claim for such liability with an unrepresented client or former

client unless that person is advised in writing of the desirability of seeking and is given a

reasonable opportunity to seek the advice of an independent lawyer in connection therewith.

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter

of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

(j) A lawyer shall not:

(1) have sexual relations with a current client of the lawyer unless a consensual sexual

relationship existed between them at the time the client-lawyer relationship commenced; or

(2) have sexual relations with a representative of a current client if the sexual relations

would, or would likely, damage or prejudice the client in the representation.

(3) For purposes of Rule 1.8(j), “lawyer” means any lawyer who assists in the

representation of the client, but does not include other firm members who provide no such

assistance.

client-lawyer relationship commenced; or

(2) have sexual relations with a representative of a current client if the sexual relations

would, or would likely, damage or prejudice the client in the representation.

(3) For purposes of Rule 1.8(j), “lawyer” means any lawyer who assists in the

representation of the client, but does not include other firm members who provide no such

assistance.

(k) While lawyers are associated in a firm with other lawyers or LLLTs, a prohibition in the

foregoing paragraphs (a) through (i) of this Rule or LLLT RPC 1.8 that applies to anyone of them

shall apply to all of them, except that the prohibitions in paragraphs (a), (h), and (i) of LLLT RPC

1.8 shall apply to firm lawyers only if the conduct is also prohibited by this rule.

(l) A lawyer who is related to another lawyer or LLLT as parent, child, sibling, or spouse,

or who has any other close familial or intimate relationship with another lawyer or LLLT, shall

not represent a client in a matter directly adverse to a person who the lawyer knows is

represented by the related lawyer or LLLT unless:

(1) the client gives informed consent to the representation; and

(2) the representation is not otherwise prohibited by Rule 1.7.

(m) A lawyer shall not:

(1) make or participate in making an agreement with a governmental entity for the delivery

of indigent defense services if the terms of the agreement obligate the contracting lawyer or law

firm:

by the related lawyer or LLLT unless:

(1) the client gives informed consent to the representation; and

(2) the representation is not otherwise prohibited by Rule 1.7.

(m) A lawyer shall not:

(1) make or participate in making an agreement with a governmental entity for the delivery

of indigent defense services if the terms of the agreement obligate the contracting lawyer or law

firm:

(i) to bear the cost of providing conflict counsel; or

(ii) to bear the cost of providing investigation or expert services, unless a fair and

reasonable amount for such costs is specifically designated in the agreement in a manner that

does not adversely affect the income or compensation allocated to the lawyer, law firm, or law

firm personnel; or

(2) knowingly accept compensation for the delivery of indigent defense services from a

lawyer who has entered into a current agreement in violation of paragraph (m)(1).

[Adopted effective September 1, 1985; Amended effective September 1, 1993; June 27, 2000;

September 1, 2006; April 24, 2007; September 1, 2008; September 1, 2011; April 14, 2015.]

Comment

Business Transactions Between Client and Lawyer

[1] A lawyer’s legal skill and training, together with the relationship of trust and confidence

between lawyer and client, create the possibility of overreaching when the lawyer participates in

a business, property or financial transaction with a client, for example, a loan or sales transaction

or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even

when the transaction is not closely related to the subject matter of the representation, as when a

lawyer drafting a will for a client learns that the client needs money for unrelated expenses and

offers to make a loan to the client. The Rule applies to lawyers engaged in the sale of goods or

services related to the practice of law, for example, the sale of title insurance or investment

services to existing clients of the lawyer’s legal practice. See Rule 5.7

f the representation, as when a

lawyer drafting a will for a client learns that the client needs money for unrelated expenses and

offers to make a loan to the client. The Rule applies to lawyers engaged in the sale of goods or

services related to the practice of law, for example, the sale of title insurance or investment

services to existing clients of the lawyer’s legal practice. See Rule 5.7. It also applies to lawyers

purchasing property from estates they represent. It does not apply to ordinary fee arrangements

between client and lawyer, which are governed by Rule 1.5, although its requirements must be

met when the lawyer accepts an interest in the client’s business or other nonmonetary property as

payment of all or part of a fee. In addition, the Rule does not apply to standard commercial

transactions between the lawyer and the client for products or services that the client generally

markets to others, for example, banking or brokerage services, medical services, products

manufactured or distributed by the client, and utilities’ services. In such transactions, the lawyer

has no advantage in dealing with the client, and the restrictions in paragraph (a) are unnecessary

and impracticable.

[2] [Washington revision] Paragraph (a)(1) requires that the transaction itself be fair to the

client and that its essential terms be communicated to the client, in writing, in a manner that can

be reasonably understood. Paragraph (a)(2) requires that the client also be advised, in writing, of

the desirability of seeking the advice of an independent lawyer. It also requires that the client be

given a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that the lawyer

obtain the client’s informed consent, in a writing signed by the client, both to the essential terms

of the transaction and to the lawyer’s role

quires that the client also be advised, in writing, of

the desirability of seeking the advice of an independent lawyer. It also requires that the client be

given a reasonable opportunity to obtain such advice. Paragraph (a)(3) requires that the lawyer

obtain the client’s informed consent, in a writing signed by the client, both to the essential terms

of the transaction and to the lawyer’s role. When necessary, the lawyer should discuss both the

material risks of the proposed transaction, including any risk presented by the lawyer’s

involvement, and the existence of reasonably available alternatives and should explain why the

advice of an independent lawyer is desirable. See Rule 1.0A(e) (definition of informed consent).

[Comment 2 amended effective April 14, 2015.]

[3] The risk to a client is greatest when the client expects the lawyer to represent the client in the

transaction itself or when the lawyer’s financial interest otherwise poses a significant risk that the

lawyer’s representation of the client will be materially limited by the lawyer’s financial interest in

the transaction. Here the lawyer’s role requires that the lawyer must comply, not only with the

requirements of paragraph (a), but also with the requirements of Rule 1.7. Under that Rule, the

lawyer must disclose the risks associated with the lawyer’s dual role as both legal adviser and

participant in the transaction, such as the risk that the lawyer will structure the transaction or give

legal advice in a way that favors the lawyer’s interests at the expense of the client. Moreover, the

lawyer must obtain the client’s informed consent. In some cases, the lawyer’s interest may be

such that Rule 1.7 will preclude the lawyer from seeking the client’s consent to the transaction.

[4] [Washington revision] If the client is independently represented by a lawyer in the

tion or give

legal advice in a way that favors the lawyer’s interests at the expense of the client. Moreover, the

lawyer must obtain the client’s informed consent. In some cases, the lawyer’s interest may be

such that Rule 1.7 will preclude the lawyer from seeking the client’s consent to the transaction.

[4] [Washington revision] If the client is independently represented by a lawyer in the

transaction, paragraph (a)(2) of this Rule is inapplicable, and the paragraph (a)(1) requirement for

full disclosure is satisfied either by a written disclosure by the lawyer involved in the transaction

or by the client’s independent lawyer. The fact that the client was independently represented by a

lawyer in the transaction is relevant in determining whether the agreement was fair and

reasonable to the client as paragraph (a)(1) further requires.

[Comment 4 amended effective April 14, 2015.]

Use of Information Related to Representation

[5] [Washington revision] Use of information relating to the representation to the disadvantage

of the client violates the lawyer’s duty of loyalty. Paragraph (b) applies when the information is

used to benefit either the lawyer or a third person, such as another client or business associate of

the lawyer. For example, if a lawyer learns that a client intends to purchase and develop several

parcels of land, the lawyer may not use that information to purchase one of the parcels in

competition with the client or to recommend that another client make such a purchase. The Rule

does not prohibit uses that do not disadvantage the client. For example, a lawyer who learns a

government agency’s interpretation of trade legislation during the representation of one client

may properly use that information to benefit other clients. Paragraph (b) prohibits

disadvantageous use of client information unless the client gives informed consent, except as

permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), and 8.1

r example, a lawyer who learns a

government agency’s interpretation of trade legislation during the representation of one client

may properly use that information to benefit other clients. Paragraph (b) prohibits

disadvantageous use of client information unless the client gives informed consent, except as

permitted or required by these Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), and 8.1.

Gifts to Lawyers

[6] A lawyer may accept a gift from a client, if the transaction meets general standards of

fairness. For example, a simple gift such as a present given at a holiday or as a token of

appreciation is permitted. If a client offers the lawyer a more substantial gift, paragraph (c) does

not prohibit the lawyer from accepting it, although such a gift may be voidable by the client

under the doctrine of undue influence, which treats client gifts as presumptively fraudulent. In

any event, due to concerns about overreaching and imposition on clients, a lawyer may not

suggest that a substantial gift be made to the lawyer or for the lawyer’s benefit, except where the

lawyer is related to the client as set forth in paragraph (c).

[7] If effectuation of a substantial gift requires preparing a legal instrument such as a will or

conveyance the client should have the detached advice that another lawyer can provide. The sole

exception to this Rule is where the client is a relative of the donee.

[8] This Rule does not prohibit a lawyer from seeking to have the lawyer or a partner or associate

of the lawyer named as executor of the client’s estate or to another potentially lucrative fiduciary

position. Nevertheless, such appointments will be subject to the general conflict of interest

provision in Rule 1.7 when there is a significant risk that the lawyer’s interest in obtaining the

appointment will materially limit the lawyer’s independent professional judgment in advising the

client concerning the choice of an executor or other fiduciary

to another potentially lucrative fiduciary

position. Nevertheless, such appointments will be subject to the general conflict of interest

provision in Rule 1.7 when there is a significant risk that the lawyer’s interest in obtaining the

appointment will materially limit the lawyer’s independent professional judgment in advising the

client concerning the choice of an executor or other fiduciary. In obtaining the client’s informed

consent to the conflict, the lawyer should advise the client concerning the nature and extent of the

lawyer’s financial interest in the appointment, as well as the availability of alternative candidates

for the position.

Literary Rights

[9] An agreement by which a lawyer acquires literary or media rights concerning the conduct of

the representation creates a conflict between the interests of the client and the personal interests

of the lawyer. Measures suitable in the representation of the client may detract from the

publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer

representing a client in a transaction concerning literary property from agreeing that the lawyer’s

fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5

and paragraphs (a) and (i).

Financial Assistance

[10] [Washington revision] Lawyers may not subsidize lawsuits or administrative proceedings

brought on behalf of their clients, including making or guaranteeing loans to their clients for

living expenses, because to do so would encourage clients to pursue lawsuits that might not

otherwise be brought and because such assistance gives lawyers too great a financial stake in the

litigation. See Washington Comment [21].

Person Paying for a Lawyer’s Services

[11] Lawyers are frequently asked to represent a client under circumstances in which a third

person will compensate the lawyer, in whole or in part

to do so would encourage clients to pursue lawsuits that might not

otherwise be brought and because such assistance gives lawyers too great a financial stake in the

litigation. See Washington Comment [21].

Person Paying for a Lawyer’s Services

[11] Lawyers are frequently asked to represent a client under circumstances in which a third

person will compensate the lawyer, in whole or in part. The third person might be a relative or

friend, an indemnitor (such as a liability insurance company) or a co-client (such as a corporation

sued along with one or more of its employees). Because third-party payers frequently have

interests that differ from those of the client, including interests in minimizing the amount spent

on the representation and in learning how the representation is progressing, lawyers are

prohibited from accepting or continuing such representations unless the lawyer determines that

there will be no interference with the lawyer’s independent professional judgment and there is

informed consent from the client. See also Rule 5.4(c) (prohibiting interference with a lawyer’s

professional judgment by one who recommends, employs or pays the lawyer to render legal

services for another).

[12] Sometimes, it will be sufficient for the lawyer to obtain the client’s informed consent

regarding the fact of the payment and the identity of the third-party payer. If, however, the fee

arrangement creates a conflict of interest for the lawyer, then the lawyer must comply with Rule.

1.7. The lawyer must also conform to the requirements of Rule 1.6 concerning confidentiality.

Under Rule 1.7(a), a conflict of interest exists if there is significant risk that the lawyer’s

representation of the client will be materially limited by the lawyer’s own interest in the fee

arrangement or by the lawyer’s responsibilities to the third-party payer (for example, when the

third-party payer is a co-client)

t also conform to the requirements of Rule 1.6 concerning confidentiality.

Under Rule 1.7(a), a conflict of interest exists if there is significant risk that the lawyer’s

representation of the client will be materially limited by the lawyer’s own interest in the fee

arrangement or by the lawyer’s responsibilities to the third-party payer (for example, when the

third-party payer is a co-client). Under Rule 1.7(b), the lawyer may accept or continue the

representation with the informed consent of each affected client, unless the conflict is

nonconsentable under that paragraph. Under Rule 1.7(b), the informed consent must be

confirmed in writing.

Aggregate Settlements

[13] [Washington revision] Differences in willingness to make or accept an offer of settlement

are among the risks of common representation of multiple clients by a single lawyer. Under Rule

1.7, this is one of the risks that should be discussed before undertaking the representation, as part

of the process of obtaining the clients’ informed consent. In addition, Rule 1.2(a) protects each

client’s right to have the final say in deciding whether to accept or reject an offer of settlement

and in deciding whether to enter a guilty or nolo contendere plea in a criminal case. The rule

stated in this paragraph is a corollary of both these Rules and provides that, before any settlement

offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform

each of them about all the material terms of the settlement, including what the other clients will

receive or pay if the settlement or plea offer is accepted. See also Rule 1.0A(e) (definition of

informed consent)

paragraph is a corollary of both these Rules and provides that, before any settlement

offer or plea bargain is made or accepted on behalf of multiple clients, the lawyer must inform

each of them about all the material terms of the settlement, including what the other clients will

receive or pay if the settlement or plea offer is accepted. See also Rule 1.0A(e) (definition of

informed consent). Lawyers representing a class of plaintiffs or defendants, or those proceeding

derivatively, may not have a full client-lawyer relationship with each member of the class;

nevertheless, such lawyers must comply with applicable rules regulating notification of class

members and other procedural requirements designed to ensure adequate protection of the entire

class.

[Comment 13 amended effective April 14, 2015.]

Limiting Liability and Settling Malpractice Claims

[14] [Washington revision] Agreements prospectively limiting a lawyer’s liability for

malpractice are prohibited unless permitted by law and the client is independently represented by

a lawyer in making the agreement because they are likely to undermine competent and diligent

representation. Also, many clients are unable to evaluate the desirability of making such an

agreement before a dispute has arisen, particularly if they are then represented by the lawyer

seeking the agreement. This paragraph does not, however, prohibit a lawyer from entering into an

agreement with the client to arbitrate legal malpractice claims, provided such agreements are

enforceable and the client is fully informed of the scope and effect of the agreement. Nor does

this paragraph limit the ability of lawyers to practice in the form of a limited-liability entity,

where permitted by law, provided that each lawyer remains personally liable to the client for their

own conduct and the firm complies with any conditions required by law, such as provisions

requiring client notification or maintenance of adequate liability insurance

ect of the agreement. Nor does

this paragraph limit the ability of lawyers to practice in the form of a limited-liability entity,

where permitted by law, provided that each lawyer remains personally liable to the client for their

own conduct and the firm complies with any conditions required by law, such as provisions

requiring client notification or maintenance of adequate liability insurance. Nor does it prohibit

an agreement in accordance with Rule 1.2 that defines the scope of the representation, although a

definition of scope that makes the obligations of representation illusory will amount to an attempt

to limit liability.

[Comment 14 amended effective April 14, 2015.]

[15] [Washington revision] Agreements settling a claim or a potential claim for malpractice are

not prohibited by this Rule. Nevertheless, in view of the danger that a lawyer will take unfair

advantage of client or former client not represented by a lawyer, the lawyer must first advise such

a person in writing of the appropriateness of independent representation by a lawyer in

connection with such a settlement. In addition, the lawyer must give the client or former client a

reasonable opportunity to find and consult an independent lawyer.

[Comment 15 amended effective April 14, 2015.]

Acquiring Proprietary Interest in Litigation

[16] Paragraph (i) states the traditional general rule that lawyers are prohibited from acquiring a

proprietary interest in litigation. Like paragraph (e), the general rule has its basis in common law

champerty and maintenance and is designed to avoid giving the lawyer too great an interest in the

representation. In addition, when the lawyer acquires an ownership interest in the subject of the

representation, it will be more difficult for a client to discharge the lawyer if the client so desires.

The Rule is subject to specific exceptions developed in decisional law and continued in these

Rules

perty and maintenance and is designed to avoid giving the lawyer too great an interest in the

representation. In addition, when the lawyer acquires an ownership interest in the subject of the

representation, it will be more difficult for a client to discharge the lawyer if the client so desires.

The Rule is subject to specific exceptions developed in decisional law and continued in these

Rules. The exception for certain advances of the costs of litigation is set forth in paragraph (e). In

addition, paragraph (i) sets forth exceptions for liens authorized by law to secure the lawyer’s

fees or expenses and contracts for reasonable contingent fees. The law of each jurisdiction

determines which liens are authorized by law. These may include liens granted by statute, liens

originating in common law and liens acquired by contract with the client. When a lawyer

acquires by contract a security interest in property other than that recovered through the lawyer’s

efforts in the litigation, such an acquisition is a business or financial transaction with a client and

is governed by the requirements of paragraph (a). Contracts for contingent fees in civil cases are

governed by Rule 1.5.

Client-Lawyer Sexual Relationships

[17] The relationship between lawyer and client is a fiduciary one in which the lawyer occupies

the highest position of trust and confidence. The relationship is almost always unequal; thus, a

sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s

fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client

to the client’s disadvantage. In addition, such a relationship presents a significant danger that,

because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client

without impairment of the exercise of independent professional judgment. Moreover, a blurred

line between the professional and personal relationships may make it difficult to predict to what

e client

to the client’s disadvantage. In addition, such a relationship presents a significant danger that,

because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client

without impairment of the exercise of independent professional judgment. Moreover, a blurred

line between the professional and personal relationships may make it difficult to predict to what

extent client confidences will be protected by the attorney-client evidentiary privilege, since

client confidences are protected by privilege only when they are imparted in the context of the

client-lawyer relationship. Because of the significant danger of harm to client interests and

because the client’s own emotional involvement renders it unlikely that the client could give

adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a

client regardless of whether the relationship is consensual and regardless of the absence of

prejudice to the client.

[18] Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues

relating to the exploitation of the fiduciary relationship and client dependency are diminished

when the sexual relationship existed prior to the commencement of the client-lawyer

relationship. However, before proceeding with the representation in these circumstances, the

lawyer should consider whether the lawyer’s ability to represent the client will be materially

limited by the relationship. See Rule 1.7(a)(2).

[19] [Washington revision] When the client is an organization, paragraph (j) of this Rule

applies to a lawyer for the organization (whether inside or outside counsel). For purposes of this

Rule, “representative of a current client” will generally be a constituent of the organization who

supervises, directs or regularly consults with that lawyer on the organization’s legal matters. See

Comment [1] to Rule 1.13 (identifying the constituents of an organizational client)

) of this Rule

applies to a lawyer for the organization (whether inside or outside counsel). For purposes of this

Rule, “representative of a current client” will generally be a constituent of the organization who

supervises, directs or regularly consults with that lawyer on the organization’s legal matters. See

Comment [1] to Rule 1.13 (identifying the constituents of an organizational client).

See also Washington Comments [22] and [23].

Imputation of Prohibitions

[20] Under paragraph (k), a prohibition on conduct by an individual lawyer in paragraphs (a)

through (i) also applies to all lawyers associated in a firm with the personally prohibited lawyer.

For example, one lawyer in a firm may not enter into a business transaction with a client of

another member of the firm without complying with paragraph (a), even if the first lawyer is not

personally involved in the representation of the client. The prohibition set forth in paragraph (j) is

personal and is not applied to associated lawyers.

Additional Washington Comments (21-31)

Financial Assistance

[21] Paragraph (e) of Washington’s Rule differs from the Model Rule. Paragraph (e) is based on

former Washington RPC 1.8(e). The minor structural modifications to the general prohibition on

providing financial assistance to a client do not represent a change in Washington law, and

paragraph (e) is intended to preserve prior interpretations of the Rule and prior Washington

practice.

Client-Lawyer Sexual Relationships

[22] Paragraph (j)(2) of Washington’s Rule, which prohibits sexual relationships with a

representative of an organizational client, differs from the Model Rule. Comment [19] to Model

Rule 1.8 was revised to be consistent with the Washington Rule.

[23] Paragraph (j)(3) of the Rule specifies that the prohibition applies with equal force to any

lawyer who assists in the representation of the client, but the prohibition expressly does not apply

to other members of a firm who have not assisted in the representation

al client, differs from the Model Rule. Comment [19] to Model

Rule 1.8 was revised to be consistent with the Washington Rule.

[23] Paragraph (j)(3) of the Rule specifies that the prohibition applies with equal force to any

lawyer who assists in the representation of the client, but the prohibition expressly does not apply

to other members of a firm who have not assisted in the representation.

Personal Relationships

[24] Model Rule 1.8 does not contain a provision equivalent to paragraph (l) of Washington’s

Rule. Paragraph (l) prohibits representations based on a lawyer’s personal conflict arising from

their relationship with another lawyer. Paragraph (l) is a revised version of former Washington

RPC 1.8(i). See also Comment [11] to Rule 1.7.

Indigent Defense Contracts

[25] Model Rule 1.8 does not contain a provision equivalent to paragraph (m) of Washington’s

Rule. Paragraph (m) specifies that it is a conflict of interest for a lawyer to enter into or accept

compensation under an indigent defense contract that does not provide for the payment of funds,

outside of the contract, to compensate conflict counsel for fees and expenses.

[26] Where there is a right to a lawyer in court proceedings, the right extends to those who are

financially unable to obtain one. This right is affected in some Washington counties and

municipalities through indigent defense contracts, i.e., contracts entered into between lawyers or

law firms willing to provide defense services to those financially unable to obtain them and the

governmental entities obliged to pay for those services. When a lawyer or law firm providing

indigent defense services determines that a disqualifying conflict of interest precludes

representation of a particular client, the lawyer or law firm must withdraw and substitute counsel

must be obtained for the client. See Rule 1.16

defense services to those financially unable to obtain them and the

governmental entities obliged to pay for those services. When a lawyer or law firm providing

indigent defense services determines that a disqualifying conflict of interest precludes

representation of a particular client, the lawyer or law firm must withdraw and substitute counsel

must be obtained for the client. See Rule 1.16. In these circumstances, substitute counsel is

typically known as “conflict counsel.”

[27] An indigent defense contract by which the contracting lawyer or law firm assumes the

obligation to pay conflict counsel from the proceeds of the contract, without further payment

from the governmental entity, creates an acute financial disincentive for the lawyer either to

investigate or declare the existence of actual or potential conflicts of interest requiring the

employment of conflict counsel. For this reason, such contracts involve an inherent conflict

between the interests of the client and the personal interests of the lawyer. These dangers warrant

a prohibition on making such an agreement or accepting compensation for the delivery of

indigent defense services from a lawyer that has done so. See ABA Standards for Criminal

Justice, Std. 5-3.3(b)(vii) (3d ed. 1992) (elements of a contract for defense services should

include “a policy for conflict of interest cases and the provision of funds outside of the contract

to compensate conflict counsel for fees and expenses”); People v. Barboza, 29 Cal.3d 375, 173

Cal. Rptr. 458, 627 P.2d 188 (Cal. 1981) (structuring public defense contract so that more money

is available for operation of office if fewer outside attorneys are engaged creates “inherent and

irreconcilable conflicts of interest”).

[28] Similar conflict-of-interest considerations apply when indigent defense contracts require the

contracting lawyer or law firm to pay for the costs and expenses of investigation and expert

services from the general proceeds of the contract

t more money

is available for operation of office if fewer outside attorneys are engaged creates “inherent and

irreconcilable conflicts of interest”).

[28] Similar conflict-of-interest considerations apply when indigent defense contracts require the

contracting lawyer or law firm to pay for the costs and expenses of investigation and expert

services from the general proceeds of the contract. Paragraph (m)(1)(ii) prohibits agreements that

do not provide that such services are to be funded separately from the amounts designated as

compensation to the contracting lawyer or law firm.

[29] Because indigent defense contracts involve accepting compensation for legal services from a

third-party payer, the lawyer must also conform to the requirements of paragraph (f). See also

Comments [11] - [12].

[Comments adopted effective September 1, 2006.]

Settling Malpractice Claims

[30] A client or former client of an LLLT who is not represented by a lawyer is unrepresented for

purposes of Rule 1.8(h)(2).

[Comment adopted April 14, 2015.]

Lawyers Associated in Firms with Limited License Legal Technicians

[31] LLLT RPC 1.8 prohibits LLLTs from engaging in certain conduct that is not necessarily

prohibited to lawyers by this Rule. See LLLT RPC 1.8(a) (strictly prohibiting an LLLT from

entering into a business transaction with a client); (h)(1) (strictly prohibiting an LLLT from

making an agreement prospectively limiting the LLLT’s liability to a client for malpractice), (i)

(strictly prohibiting an LLLT from acquiring a proprietory interest in a client’s cause of action or

the subject matter of the litigation). These prohibitions do not apply to any lawyers in a firm

unless the conduct is also prohibited to a lawyer under this Rule.

[Comment 31 adopted April 14, 2015.]