Opinion 202602

AO202602
Introduction: This Advisory Opinion addresses whether a Washington lawyer, in the course of
representing their own client, violates RPC 5.5(a) or RPC 8.4(a) by knowingly assisting another
in engaging in the unauthorized practice of law in Washington (“UPL”) if the lawyer knows that
the adverse party in the matter is represented by someone who is not authorized to practice law
in Washington.
Summary: A Washington lawyer’s representation of a client who is adverse to a party that is
known by the lawyer to be represented by someone engaging in UPL in a matter not in litigation
does not by itself violate RPC 5.5(a) or RPC 8.4(a). [n.1] This does not mean, however, that
there are no risks of other RPC violations. In matters in litigation, the lawyer must at a minimum
notify the court of the known UPL.
Cited Rules: 1.0A(f), 1.0A(m), 1.1, 1.4, 1.16, 4.1, 5.5(a), 5.8, 8.3, 8.4, 8.5(b)
Detailed Analysis
A. The Lawyer’s Background Obligation to Consult with the Client about the UPL
Before addressing UPL-related questions themselves, we note that lawyers owe their own clients
duties of competent representation and communication under RPC 1.1 and 1.4. [n.2] Since the
fact that an adverse party is represented by someone engaged in UPL could reasonably affect the
lawyer’s own client at some point in time (because, for example, the adverse party might
subsequently claim that the lawyer and the client took unfair advantage of the adverse party), a
lawyer who knows of the UPL by the adverse party’s representative must inform their own
client before proceeding. In the discussion which follows, we assume that the lawyer will either
act in accordance with the client’s directions as limited by the RPCs or withdraw under RPC
1.16.
B. The Lawyer’s Knowledge of the Existence of UPL
UPL and the exceptions to what would otherwise constitute UPL are defined in Washington in
GR 24 and in multiple Washington judicial decisions. [n.3] Although a complete discussion and
definition of what constitutes the authorized or unauthorized practice of law is beyond the scope
of this Advisory Opinion and the authority of this Committee, we will assume for purposes of
this opinion that it is or at least may be UPL for someone to represent another in a matter that
requires significant legal skill and training. [n.3]
Before a lawyer could be said to violate RPC 5.5(a) or RPC 8.4(a) solely by representing the
lawyer’s own client when the adverse party’s representative is engaging in UPL, a lawyer would
first have to have actual knowledge of the existence of the UPL [n.4] RPC 1.0A(f) provides that
“‘knowingly,’ ‘known,’ or ‘knows’ denotes actual knowledge of the fact in question. A person's
knowledge may be inferred from circumstances.”
It will often be difficult for a lawyer to “know” that the adverse party’s representative is engaged
in UPL especially when the adverse party’s representative is expressly authorized to practice in
one or more jurisdictions. See, e.g., RPC 5.5(c) (allowing for the temporary practice of law in
Washington by lawyers licensed elsewhere in various circumstances); RPC 5.5(d) (allowing for
the practice of law by a non-Washington lawyer if permitted by federal preemption). In addition,
ABA Formal Op. 23-504, Choice of Law, makes plain that there are many circumstances in
which the choice of professional responsibility law will be less than clear in multistate matters.
Whether UPL exists may also be unclear at times even when the adverse party’s representative is
not expressly authorized to practice in any jurisdiction. For example, it is not always clear when
or to what extent practitioners of other professions including, for example, accountants and
insurance agents, may permissibly advise their clients on law-related matters, and we express no
opinion on the extent to which this may be so. See e.g. Jones v. Allstate Ins. Co., 146 Wash.2d
29, 45 P.3d 1068 (2002) (noting that the Washington Supreme Court may in some instances
allow nonlawyers to engage in what might otherwise have been considered UPL). Thus, it will
often be true that a lawyer may suspect or think, but not actually know, that an opposing party’s
representative is engaging in UPL. Nonetheless, there will be times when the lawyer actually
knows that that adverse party’s representative is doing so.
C. “Assisting” UPL Under RPC 5.5(a) and 8.4(a)
RPCs 5.5(a) provides that “A lawyer shall not practice law in a jurisdiction in violation of the
regulation of the legal profession in that jurisdiction or assist another in doing so.” RPC 8.4(a)
provides that it is professional misconduct for a lawyer to “knowingly assist or induce another to
[engage in UPL] or do so through the acts of another.” Neither rule is violated unless the lawyer
has actual knowledge (as defined above) of UPL by the adverse party’s representative. If that
knowledge is present, the key question becomes whether that knowledge, in and of itself, is
sufficient to constitute “assist[ing]” another in UPL, “induc[ing]” another to do so, or “do[ing] so
through the acts of another.” Although there is no Washington authority on all fours, we conclude
that no UPL is present based on mere knowledge of the existence of the UPL.
As used in RPC 5.5(a) and RPC 8.4(a), the word “assist” is generally understood and interpreted
according to its ordinary meaning as connoting some degree of affirmative cooperation, help,
facilitation, guidance, or aid, as opposed to a failure to intervene—at least where the lawyer has
no other affirmative ethical duty to supervise the conduct. See generally ABA Annotated Model
Rules of Professional Conduct 593-96, 765-66 (10th ed. 2023) (commenting that Rule 5.5(a)
prohibits a lawyer from “helping” someone else engage in UPL and referencing as examples of
this misconduct lending legitimacy to unlicensed individuals or disbarred or suspended lawyers,
working with and on the same side as unauthorized out of state lawyers, and failing to adequately
supervise nonlawyer subordinates).
Similarly, Hazard, Hodes, Jarvis & Thompson, The Law of Lawyering § 47.02 (4th ed. 2025-2
Supp.) provides that “because one of the obligations of a lawyer is to avoid assisting UPL (Rule
5.5(a)), lawyers must take affirmative steps to ensure that lay persons subject to their control,
such as paralegal workers, secretaries, or investigators, do not cross over the line into UPL”
(emphasis added). The treatise then contrasts a lawyer’s need to supervise the nonlawyer’s own
nonlawyer employees with the situation of a lawyer who happens to represent a party to a
proposed transaction in which the adverse party is represented by a person engaged in UPL. In
the latter situation, the lawyer “is not thereby impermissibly assisting that person in UPL.”
Hazard, Hodes, Jarvis & Thompson, The Law of Lawyering § 47.07 (4th ed. 2025-2 Supp)
(emphasis in original). The treatise also cites to and quotes from N.Y. State Bar Ass'n Ethics Op.
809 (2007) which concludes:
We do not believe that merely continuing to represent one's own client-in a
transaction into which a third party, not under the lawyer's (or client's) control,
has chosen to introduce a non-lawyer who is engaging in UPL-is aiding that nonlawyer
in UPL. Absent any affirmative intent or desire to substantially assist the
non-lawyer in UPL, or some direct financial or other benefit to the lawyer from
the non-lawyer's engaging in UPL (other than the ordinary benefit arising from
completing the transaction for which the lawyer was engaged), the lawyer is not
aiding UPL. All the lawyer is doing is representing a client; the incidental
effect of that proper act is that the non-lawyer is able to engage in UPL.
(Footnote omitted.) [n.5]
This approach is consistent with the leading published Washington State case in this general
area—In re Disciplinary Proceeding Against Shepard, 169 Wash. 2d 697, 239 P.3d 1066 (2010).
In Shephard, the lawyer “assisted” in UPL because he was an active participant in a scheme in
which nonlawyers operated a living trust mill: “By allowing his name and title to be used to add
legitimacy to the sale of the [living trust documents], Shepard aided [a nonlawyer] in the
unauthorized practice of law.” Id. at 712. In other words, some affirmative action or involvement
for the purpose of helping someone engage in involvement must exist before the lawyer
representing a client in a matter can be said to be assisting UPL or otherwise violating RPC
5.5(a) or 8.4(a). [n.6]
This also makes sense because a lawyer’s duties run primarily to the lawyer’s own client and not
to the adverse party. For example, a lawyer who knows that an adverse party’s lawyer has
performed incompetently when representing the adverse party does not owe duties of
competence and communication to the adverse party equal to what the lawyer owes the lawyer’s
own client.
In conclusion, no violation of RPC 5.5(a) or RPC 8.4(a) exists solely because a lawyer knows
that the adverse party’s representative is engaged in UPL.
D. Other RPC Risks to the Lawyer
This does not mean, however, that a lawyer who knows that the adverse party is being
represented by someone engaging in UPL is free from other RPC-related risks.
Suppose, for example, that the matter in question involves litigation. “When an unlicensed
advocate knowingly appears in court without a court's permission or proper licensure from the
bar, they commit a fraud on the court ….” Matter of Lewis, 200 Wash.2d 848, 874, 523 P.3d 760
(2023) (emphasis in original). Most courts are likely to conclude that a lawyer’s silence in the
face of the adverse party’s representation by someone known by the lawyer to be engaging in
UPL—and a lawyer’s participation in, for example, such ministerial acts as submitting
documents to the court which reflect signatures by the” attorneys” for each party—violate court
rules or the duty of candor owed to the court and therefore constitute, “mak[ing] “a false
statement of fact or law to a tribunal” in violation of RPC 3.3(a), making “a false statement of
material fact or law to a third person” in violation of RPC 4.1(a), “conduct involving dishonesty,
fraud, deceit or misrepresentation” in violation of RPC 8.4(c), or “conduct that is prejudicial to
the administration of justice” in violation of RPC 8.4(d). [n.7]
In addition, a lawyer with knowledge of the UPL by the representative of the adverse party
would also need to avoid any conspiracy or plan with the representative to defraud the adverse
party. Cf. In re Smith, 170 Wash.2d 721, 246 P.3d 1224 (2011)(disbarring lawyer following
conviction for conspiracy to commit securities fraud). [n.8]
Lastly, a lawyer with knowledge of the UPL may wish to consider whether they should report the
misconduct under RPC 8.3, albeit subject to any limitations based on the duty of confidentiality
to their client under RPC 1.6. [n.9]
Endnotes:
1. In this opinion, we assume that the lawyer is not otherwise profiting from, supporting, or
aiding and abetting the representative of the adverse party who is engaged in UPL. Cf.
RPC 5.8(b) and RCW 2.48.220(9), quoted in note 6 below.
2. RPC 1,1 provides that:
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
RPC 1.4 provides in pertinent part that:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule 1.0A(e),
is required by these Rules;
(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) consult with the client about any relevant limitation on the lawyer’s
conduct when the lawyer knows that the client expects assistance not
permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
3. GR 24(a) provides as a general definition that:
The practice of law is the application of legal principles and judgment with regard to the
circumstances or objectives of another entity or person(s) which require the knowledge
and skill of a person trained in the law. This includes but is not limited to:
(1) Giving advice or counsel to others as to their legal rights or the legal rights or
responsibilities of others for fees or other consideration.
(2) Selection, drafting, or completion of legal documents or agreements which affect the
legal rights of an entity or person(s).
(3) Representation of another entity or person(s) in a court, or in a formal administrative
adjudicative proceeding or other formal dispute resolution process or in an administrative
adjudicative proceeding in which legal pleadings are filed or a record is established as the
basis for judicial review.
(4) Negotiation of legal rights or responsibilities on behalf of another entity or person(s).
GR 24(b) then provides a list of exceptions and inclusions to what would or might otherwise
constitute UPL.
4. See, e.g., Nancy J. Moore, Mens Rea Standards in Lawyer Disciplinary Codes, 23 Geo. J.
Legal Ethics 1, 3 (2010) (“I suggest the following default mens rea standards for
disciplinary provisions: negligence in rules designed to protect clients and knowledge in
rules designed to protect courts and third parties.”) (Footnotes omitted.)
5. The footnote to the New York opinion states that the opinion is “limited to transactional
situations and does not encompass situations involving litigation, in which there may be,
for example, special duties to the court.” Id. at note 1. As noted further in text below, we
agree.
6. This interpretation is also consistent with RPC 5.8(b) and RCW 2.48.220(9). RPC 5.8(b)
provides that:
A lawyer shall not engage in any of the following with a lawyer or LLLT
who is disbarred or suspended or who has resigned in lieu of disbarment
or discipline or whose license has been revoked or voluntarily cancelled in
lieu of discipline:
(1) practice law with or in cooperation with such an individual;
(2) maintain an office for the practice of law in a room or office occupied
or used in whole or in part by such an individual;
(3) permit such an individual to use the lawyer's name for the practice of
law;
(4) practice law for or on behalf of such an individual; or
(5) practice law under any arrangement or understanding for division of
fees or compensation of any kind with such an individual.
RCW 2.48.220(9) provides that an attorney may be disciplined for:
Practicing law with or in cooperation with a disbarred or suspended
attorney, or maintaining an office for the practice of law in a room or
office occupied or used in whole or in part by a disbarred or suspended
attorney, or permitting a disbarred or suspended attorney to use his or her
name for the practice of law, or practicing law for or on behalf of a
disbarred or suspended attorney, or practicing law under any arrangement
or understanding for division of fees or compensation of any kind with a
disbarred or suspended attorney or with any person not a licensed attorney.
Both provisions require additional support or involvement by a lawyer above and
beyond the knowledge that an adverse party’s representative is engaging in UPL
before the lawyer can be said to be acting impermissibly.
7. RPC 1.0A(m) defines tribunals as including more than just courts:
“Tribunal” denotes a court, an arbitrator in a binding arbitration
proceeding or legislative body, administrative agency or other body acting
in an adjudicative capacity. A legislative body, administrative agency or
other body acts in an adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument by a party or parties, will
render a binding legal judgment directly affecting a party's interests in a
particular matter.
Because the rules of non-court tribunals vary widely, we express no opinion on
whether the rules of non-court tribunals would require a lawyer to disclose the
lawyer’s knowledge of UPL by the adverse party’s representative.
8. It is not necessary to consider whether the lawyer might have a duty to report the adverse
party’s representative to the bar under RPC 8.3 because the Washington version of this
rule is not mandatory.
9. Unlike many other jurisdictions, Washington RPC 8.3(a) uses the phrase “should inform
the appropriate authority” rather than “shall” or “must.” Thus, this is a permissive duty
rather than a mandatory one. Even so, lawyers are encouraged to report serious RPC
violations when it is consistent with RPC 1.6 to do so. See cmt. [1] to RPC 8.3.