Opinion 201902

Facts:

A person is injured during the course of employment by the negligence of a third party. The injured worker files for and receives worker’s compensation benefits. Eventually, the claim is closed after L&I pays all medical bills, lost wages, and permanent partial disability benefits, totaling $50,000.00. Under the Washington Industrial Insurance Act, RCW 51.24, covered workers are compensated for on-the-job injuries, without regard to fault, and participating employers are generally immune to lawsuits seeking additional compensation. However, responsible third parties may be liable to the injured worker and to L&I for compensation paid from the industrial insurance fund. RCW 51.24.030.

The injured worker signs a Third Party Election Form pursuant to RCW 51.24.050, which states:

I give up my right to take legal action against the third party to recover damages, both economic and non-economic, on my own or with an attorney. I give this right to L&I, and I understand that L&I may choose not to take legal action. . . .

L&I hires a private attorney, per RCW 51.24.110, to be a SAAG to pursue the third party claim, pursuant to an agreement which states:

Attorney-Client Relationship. For the claims/actions pursued under this agreement, L&I is the client and is afforded such rights as are attendant on an attorney-client relationship.

As a SAAG, the attorney shall abide by all terms of this contract and act in the best interest of its client, which is the Department, at all times. In the event any potential conflict of interest arises, e.g., the injured worker asserts an attorney-client relationship, etc., the attorney must notify the Department in writing of the existence and nature of the potential conflict within 20 calendar days.

Issue and Analysis:

The committee received an inquiry with the following questions:

1. When an attorney is contracted as a special assistant attorney general pursuant to RCW 51.24.110, may the contracted attorney ethically pursue damages for pain and suffering on behalf of the injured worker without the consent of L&I?

Answer: No. The terms of the agreement are explicit that L&I, not the injured worker, is the sole client. The worker has assigned to the client, L&I, all claims for economic and non-economic damages. As the owner of such claims, the consent of L&I is an ethical prerequisite to representing the injured worker to recover damages for pain and suffering, and any recovery is to be distributed per RCW 51.24.060. Tobin v. Dep’t of Labor & Indus., 169 Wn. 2d 396 (2010), Carrera v. Olmstead, 189 Wn. 2d 297 (2017). The Carrera court stated the “assignment puts L&I in the shoes of the injured worker . . .” for the purpose of making a claim and does not create any attorney-client relationship with the worker.

In representing the client, the lawyer must be guided by RPC 1.4, which provides:

(a) A lawyer shall:

(1) promptly inform the client of any decision of circumstance with respect to which the client's informed consent, . . . is required . . .;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) . . . .

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

2. Is the contracted attorney ethically obligated to obtain the consent of the injured worker due to the significant risk that the contracted attorney’s representation of L&I may be directly adverse to the injured worker?

Answer: No. An attorney-client relationship does not exist with the worker. L&I may assert, on behalf of the worker, a claim for non-economic damages. The worker has given up the right to take legal action. Since there is no attorney-client relationship, RPC 1.7, dealing with conflicts of interest, is inapplicable. Burnett v. Dept. of Corrections, 187 Wn.App. 159, 349 P.42 (2015).

RPC 1.2 provides:

(a) . . . [A] lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by RPC 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. . . .

Comment [1] to RPC 1.2 provides:

[1] [Washington revision] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. . . .

The committee has based its analysis on the typical written agreement between L&I and the SAAG. Examination of the scope of any particular alleged attorney-client relationship would be a fact-specific analysis or require a legal analysis that is beyond the purview of the committee. Similarly, examination of other duties and responsibilities to a specific injured worker that could materially limit the representation of L&I in a particular situation would be a fact-specific analysis or require a legal analysis that is beyond the purview of the committee.

In dealing with the injured worker, the attorney must be mindful of RPC 4.3, which provides:

In dealing on behalf of a client with a person who is not represented by a lawyer, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure the services of another legal practitioner, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Comment

[1] [Washington revision] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. . . .