Opinion 1978

The inquirer serves as the Washington State service provider of a for-profit prepaid legal services plan. The inquirer has written to ask the opinion of the Rules of Professional Conduct Committee on:

1. The point in time in the implementation of the legal services plan at which the attorney-client relationship is formed. The purchase of the plan by a consumer, the first call to the inquirer by a plan purchaser, and the conclusion of a fee agreement with the inquirer by a plan purchaser are all suggested by the inquirer as alternatives; and

2. Whether it is permissible under the Rules of Professional Conduct for the inquirer to initiate contact with a plan purchaser to inform her or him of plan benefits and, if so, what limitations are placed on the method of such contact.

The Rules of Professional Conduct must be complied with in all stages of the implementation of a for-profit prepaid legal services plan. Based on its review of the plan agreements, the Committee believes that they present numerous contract and other substantive law questions materially affecting their legal interpretation. Their resolution is outside the purview of the Committee, but is not without ethical implications related to the inquiry. As a result, the Committee must emphasize that when forming attorney client-relationships in the implementation of the prepaid legal services plan in issue the inquirer must comply with Rule 1.2(c) regarding the requirement of consultation before limiting the scope of representation, Rule 1.7(b) regarding the requirements for waiver of potential conflicts of interest (with respect to the seller of the prepaid legal services plan), Rule 1.8(a) and/or 1.7(b) regarding business transactions with clients selecting non-plan counsel, Rule 1.8(f) regarding acceptance of fee payment from a party other than the client, and Rule 7.1(a) regarding the making in the membership contract of misleading statements concerning a lawyer`s services.

With more specific regard to the first portion of the inquiry, the threshold determination of whether an attorney-client relationship exists is a mixed question of law and fact which may turn on the subjective belief of the client based on reasonable facts. See Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992). The committee does not opine on substantive law. However, for the purposes of answering the second portion of the inquiry, it should be stated that after the purchase of the plan and prior to the plan purchaser seeking advice from the inquirer, the existence of an attorney-client relationship is unlikely because the subscribers must contact the lawyer to establish the relationship. This is the case even where the agreement for the purchase of the plan has not expressly required the conclusion of a separate representation agreement prior to legal services being provided under the plan.

With regard to the second portion of the inquiry, Rule 7.3(a) of the Rules of Professional Conduct makes it clear that only where an attorney-client relationship currently exists or has previously existed may the inquirer contact a plan purchaser in person or by the telephone (assuming no family relationship) to discuss the inquirer’s provision of legal services. This prohibition includes the dissemination of information on or invitations to exercise benefits under the for-profit prepaid legal services plan in the inquiry. Rule 7.3(b) permits written communication of this type to be directed at plan purchasers, so long as they have not manifested a desire not to receive it. The committee does not address other ethical issues which may be raised by participation in the prepaid legal services plan beyond those in the inquiry.