Opinion 989

The Committee understood the facts of this case to be that you had a fee agreement with your client which provided for a contingent fee of one-third unless there was an appeal, in which case the attorneys were to get 40 percent. After settlement for $160,000, you paid the client $100,000, which was two-thirds of the balance, even though there had been an appeal. You retained $10,000 to cover anticipated costs. After paying costs, you have a balance of $1900 in your trust account. You had advised the client that you would keep the $1900 based upon the 40 percent provision in the fee agreement. The client objected. You then tendered the $1900 to the client with a release that covered malpractice as well as everything else. The client refused to sign the release.

The Committee was of the opinion that under RPC 1.8(h) you could not settle a claim for malpractice liability with a former client without first advising that person in writing that independent representation is appropriate in connection therewith. The Committee was further of the opinion that based upon your actions in initially paying two-thirds of the recovery to the client without asserting the 40 percent provision, you effectively abandoned that claim and should now pay the remaining balance to the client.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.