GR 9 COVER SHEET

Suggested Amendments to

RULES OF PROFESSIONAL CONDUCT (RPC)

Rules 1.5(e); 5.4; and 7.3

A.        Proponent: Washington State Bar Association, Board of Governors, Committee on Professional Ethics

B.        Spokespersons:

Daniel D. Clark, President, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539

Terra Nevitt, Executive Director, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539

Jeanne Marie Clavere, Senior Professional Responsibility Counsel, Washington State Bar Association, 1325 4th Avenue, Suite 600, Seattle, WA 98101-2539

C.        Purpose: Based on changes to the Model Rules of Professional Conduct, the amendments would permit lawyers to share a portion or percentage of a fee with lawyer referral services that have qualified for 501(c)(3) treatment under the Internal Revenue Code or are registered under the Washington State Nonprofit Corporation Act. This will serve the public by providing additional alternatives for referral services and practitioners.

Background

The issue of paying charges for a legal services plan or fee sharing with a lawyer referral service was analyzed by the Committee on Professional Ethics (CPE) in 2019-20. Based on the CPE’s recommendation, the WSBA Board of Governors approved and subsequently submitted suggested amendments to the Washington State Supreme Court affecting RPCs 1.5(e), 5.4, and 7.2. The Washington State Supreme Court published the rules for comment on November 6, 2020. Exhibit D. However, while that proposal was pending, on January 8, 2021, the Washington State Supreme Court adopted sweeping revisions to RPC Title 7, concerning advertising and solicitation. Exhibit E.

When the Washington State Supreme Court adopted the 2021 amendments to RPC Title 7, it maintained in amended RPC 7.3(b)(2) and Comment 15 the preexisting

concept that a lawyer may pay the charges of a legal services plan or share a fee with certain lawyer referral services. However, the Washington State Supreme Court did not act on the WSBA Board of Governor’s pending proposal to allow lawyers to share a portion or percentage of a fee with lawyer referral services that have qualified for 501(c)(3) treatment under the Internal Revenue Code or are registered under the Washington State Nonprofit Corporation Act. In light of the Title 7 amendments, the WSBA Board of Governors subsequently withdrew the 2020 proposal relating to fee sharing with lawyer referral services for further consideration.

The CPE continues to believe that such additional language would serve the public by providing additional alternatives for referral services and practitioners.

Additionally, the 2021 revisions to RPC 7.3 did not address a confusing reference in RPC 1.5(e)(2) to “a duly authorized lawyer referral service of either the Washington State Bar Association” or one of the county bar associations of this state.”

Recommendation

At their board meeting dated March 4, 2023, the WSBA Board of Governors approved the request by the Committee on Professional Ethics to submit these amendments to the Washington Supreme Court for consideration.

The suggested amendments are attached as Exhibits A-C. These amendments to the Rules of Professional Conduct are intended to clarify when a lawyer may pay the usual charges of a legal services plan or share a portion of a fee with a lawyer referral service. The rationale for such an amendment is that it would increase access to legal services since many lawyer referral services are not-for-profit entities which serve underrepresented populations, including populations with limited language proficiency.

Redline and clean versions of the suggested rules are attached for consideration.

D.        Hearing: A hearing is not requested.

E.        Expedited Consideration: Expedited consideration is not requested.

F.         Supporting Material:

·       Exhibit A: Suggested Amendments to RPC 7.3; redline and clean versions

·       Exhibit B: Suggested Amendment to RPC 5.4, redline and clean versions

·       Exhibit C: Suggested Amendment to RPC 1.5. redline and clean versions

·       Exhibit D: Washington State Supreme Court Order No. 25700-A-1320 dated November 6, 2020

·       Exhibit E: Washington State Supreme Court Order No 25700-A-1333 dated January 8, 2021