THE LLLT CLIENT RELATIONSHIP Flashcards
LLLT RPC 1.1
Level of COMPETENCE is expected of a LLLT?
An LLLT shall provide competent representation to a client. Competent representation
requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation.
LLLT RPC 1.2
SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LLLT?
(a) Subject to paragraphs (c), (d), and (g), an LLLT shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. An LLLT may take such action on behalf of the client as is impliedly authorized to carry out the representation. An LLLT shall abide by a
client’s decision whether to settle a matter.
(b) An LLLT’s representation of a client does not constitute an endorsement of the client’s
political, economic, social, or moral views or activities.
(c) An LLLT must limit the scope of the representation and provide disclosures informing a
potential client as required by these Rules and APR 28.
(d) An LLLT shall not counsel a client to engage, or assist a client, in conduct that the
LLLT knows is criminal or fraudulent.
(e) [Reserved.]
(f) An LLLT shall not purport to act as an LLLT for any person or organization if the
LLLT knows or reasonably should know that the LLLT is acting without the authority of that
person or organization and beyond his or her authorized scope of practice, unless the LLLT is
authorized or required to so act by law or a court order.
(g) Nothing in this Rule expands an LLLT’s authorized scope of practice provided in
APR 28.
LLLT RPC 1.3
What expectation is there of a LLLT regarding DILIGENCE?
An LLLT shall act with reasonable diligence and promptness in representing a client.
Comment
[1] Rule 1.3 was adapted from Lawyer RPC 1.3 with no substantive changes and applies toLLLTs analogously. See also Comment [5] to Rule 1.2.
LLLT RPC 1.4
What expectation is there of a LLLT regarding COMMUNICATION
(a) An LLLT shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(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 LLLT’s conduct when the LLLT knows that the client expects assistance not permitted by the LLLT RPC or other law.
(b) An LLLT shall explain a matter to the extent reasonably necessary to permit the client
to make informed decisions regarding the representation.
LLLT RPC 1.5
What expectation is there of a LLLT regarding FEES
(a) An LLLT shall not make an agreement for, charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors to be considered in determining the
reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the
skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment
will preclude other employment by the LLLT;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the LLLT or LLLTs performing the services;
(8) whether the fee is fixed or hourly; and
(9) the terms of the fee agreement between the LLLT and the client, including whether the
fee agreement or confirming writing demonstrates that the client had received a reasonable and
fair disclosure of material elements of the fee agreement and of the LLLT’s billing practices.
(b) The scope of the representation and the basis or rate of the fee and expenses for which
the client will be responsible shall be communicated to the client, in writing, before commencing
the representation. Upon the request of the client in any matter, the LLLT shall communicate to
the client in writing the basis or rate of the fee.
(c) [Reserved.]
(d) An LLLT shall not enter into an arrangement for, charge, or collect any fee, the
payment or amount of which is contingent upon the outcome of the case.
(e) An LLLT may not enter into an arrangement for the division of a fee with anotherLLLT or lawyer who is not in the same firm as the LLLT.
(f) Fees and expenses paid in advance of performance of services shall comply with
Rule 1.15A, subject to the following exceptions:
(1) [Reserved.]
(2) An LLLT may charge a flat fee for specified legal services, which constitutes complete
payment for those services and is paid in whole or in part in advance of the LLLT providing the
services. A flat fee must be agreed to in advance in a writing signed by the client. The written
agreement may specify that the flat fee is the LLLT’s property on receipt, in which case the fee
shall not be deposited into a trust account under Rule 1.15A. To qualify for the exception from
the requirements of Rule 1.15A, the written fee agreement shall, in a manner that can easily be
understood by the client, include the following: (i) the scope of the services to be provided;
(ii) the total amount of the fee and the terms of payment; (iii) that the fee is the LLLT’s property
immediately on receipt and will not be placed into a trust account; (iv) that the fee agreement
does not alter the client’s right to terminate the client-LLLT relationship; and (v) that the client
may be entitled to a refund of a portion of the fee if the agreed-upon legal services have not been
completed. A statement in substantially the following form satisfies this requirement:
[LLLT/law firm] agrees to provide, for a flat fee of $__________, the following services:
_______________________________________________. The flat fee shall be paid as follows:
___________________________________________. Upon [LLLT’s/law firm’s] receipt of all
or any portion of the flat fee, the funds are the property of [LLLT/law firm] and will not be
placed in a trust account. The fact that you have paid your fee in advance does not affect your
right to terminate the client-LLLT relationship. In the event our relationship is terminated before
the agreed-upon legal services have been completed, you may or may not have a right to a refund
of a portion of the fee.
(3) In the event of a dispute relating to a fee under paragraph (f)(2) of this Rule, the LLLT shall take reasonable and prompt action to resolve the dispute.
[2] An LLLT, unlike a lawyer, is prohibited from entering into a contingent fee or retainer agreement with a client. Lawyer RPC 1.5(c) and 1.5(f)(1) address contingent fees and retainers
respectively. Accordingly, paragraphs (c) and (f)(1) are reserved under this Rule. Reservation of such paragraphs, however, is not intended to prohibit an LLLT from being apportioned a part of a fee earned by a lawyer under a contingent fee or retainer arrangement when the LLLT and
the lawyer are associated in a for profit business relationship authorized under Rule 5.9.
[3] Under the circumstances specified in Lawyer RPC 1.5(e), a lawyer may agree to a division of a fee either with another lawyer who is not in the same firm or with an authorized lawyer referral service. By contrast, paragraph (e) of this Rule categorically prohibits an LLLT from dividing a
fee. An LLLT may pay the usual charges of an LLLT referral service. See Rule 7.3(b).
[4] Unlike a lawyer, an LLLT is required by APR 28(G)(2) to enter into a written contract with
the client before the LLLT begins to perform any services for a fee that includes, among other things, identification of all fees and costs to be charged to the client for the services to be
performed. The provisions concerning a flat fee described in (f)(2) of this Rule, if applicable, should be included in that contract. The contract must be signed by both the client and the LLLT before the LLLT begins to perform any services for a fee.
[5] An LLLT is ordinarily prohibited from modifying the written contract with the client that is required by APR 28(G)(3). Courts have applied the provisions of RPC 1.8(a) to modifications or renegotiations of fee arrangements by lawyers made during the representation of a client when
the modified or renegotiated terms are more favorable to the lawyer than originally agreed upon. See, e.g., Valley/50th Ave., LLC. v. Stewart, 159 Wn.2d 736, 743-44, 153 P.3d 186, 189 (2007); Rafel Law Grp. PLLC v. Defoor, 176 Wn. App. 210, 223-24, 308 P.3d 767, 775 (2013), review denied, 179 Wn.2d 1011, 316 P.3d 495 (2014). Under these Rules, business transactions between LLLTs and clients are prohibited. See Rule 1.8(a). Accordingly, any changes in the basis or rate of an LLLT’s fee that benefit the LLLT must be identified in the initial contract.See also Comment [8] to Rule 1.2.
LLLT RPC 1.6
What expectations and are the RULES regarding CLient CONFIDENTIALITY OF INFORMATION
(a) An LLLT shall not reveal information relating to the representation of a client unless
the client gives informed consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
(b) An LLLT to the extent the LLLT reasonably believes necessary:
(1) shall reveal information relating to the representation of a client to prevent reasonably
certain death or substantial bodily harm;
(2) may reveal information relating to the representation of a client to prevent the client
from committing a crime;
(3) may reveal information relating to the representation of a client to prevent, mitigate, or
rectify substantial injury to the financial interests or property of another that is reasonably certain
to result or has resulted from the client’s commission of a crime or fraud in furtherance of which
the client has used the LLLT’s services;
(4) may reveal information relating to the representation of a client to secure legal advice
about the LLLT’s compliance with these Rules;
(5) may reveal information relating to the representation of a client to establish a claim or
defense on behalf of the LLLT in a controversy between the LLLT and the client, to establish a
defense to a criminal charge or civil claim against the LLLT based upon conduct in which the
the client was involved, or to respond to allegations in any proceeding concerning the LLLT’s representation of the client;
(6) may reveal information relating to the representation of a client to comply with a court
order; or
(7) may reveal information relating to the representation of a client to inform a tribunal
about any breach of fiduciary responsibility when the client is serving as a court-appointed fiduciary such as a guardian, personal representative, or receiver.
LLLT RPC 1.7
CONFLICT OF INTEREST: CURRENT CLIENTS
(a) Except as provided in paragraph (b), an LLLT shall not represent a client if the representation involves a concurrent conflict of interest.
A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the LLLT’s responsibilities to another client, a former client, or a third person or by a personal interest of the LLLT.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a),
an LLLT may represent a client if:
(1) the LLLT reasonably believes that the LLLT will be able to provide competent and
diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another
client represented by the LLLT with respect to the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing (following
authorization from the other client to make any required disclosures).
LLLT RPC 1.8
CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES
(a) An LLLT shall not enter into a business transaction with a current client.
(b) An LLLT shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
(c) An LLLT shall not solicit any substantial gift from a client, including a testamentary
gift, or prepare on behalf of the client an instrument giving the LLLT or a person related to the LLLT any substantial gift unless the LLLT or other recipient of the gift is related to the client.
For purposes of this paragraph, related persons include spouse, child, grandchild, parent,
grandparent or other relative or individual with whom the LLLT or the client maintains a close,
familial relationship.
(d) Prior to the conclusion of representation of a client, an LLLT shall not make or negotiate an agreement giving the LLLT literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
(e) An LLLT shall not, while representing a client in connection with contemplated or
pending litigation, advance or guarantee financial assistance to a client, except that:
(1) an LLLT may advance or guarantee the expenses of litigation, including court costs,
expenses of investigation, expenses of medical examination, and costs of obtaining and
presenting evidence, provided the client remains ultimately liable for such expenses.
(2) [Reserved.]
(f) An LLLT shall not accept compensation for representing a client from one other than
the client unless:
(1) the client gives informed consent;
(2) there is no interference with the LLLT’s independence of professional judgment or with
the client-LLLT relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
(g) [Reserved.]
(h) An LLLT shall not:
(1) make an agreement prospectively limiting the LLLT’s liability to a client for malpractice; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of an independent lawyer in connection therewith.
(i) An LLLT shall not acquire a proprietary interest in the cause of action or subject matter of litigation in which the LLLT is assisting a client.
(j) An LLLT shall not:
(1) have sexual relations with a current client of the LLLT unless a consensual sexual relationship existed between them at the time the client-LLLT relationship commenced; or
(2) have sexual relations with a representative of a current client if the sexual relations would, or would likely, damage or prejudice the client in the representation.
(3) For purposes of Rule 1.8(j), “LLLT” means any LLLT who assists in the representation
of the client, but does not include other LLLT members of a firm with which the LLLT is associated if those other LLLTs provide no such assistance.
(k) Except as otherwise provided in these Rules,
(1) while LLLTs are associated in a firm with other LLLTs, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them; and
(2) while LLLTs and lawyers are associated in a firm, the prohibitions in Lawyer RPC 1.8(a) through (i) that apply to any lawyer shall apply to any LLLT, and the prohibitions in the foregoing paragraphs (a), (h), and (i) shall not apply to any lawyers unless the conduct is
otherwise prohibited by the Lawyer RPC.
(l) An LLLT who is related to another LLLT or a lawyer as parent, child, sibling, or spouse, or who has any other close familial or intimate relationship with another LLLT or
lawyer, shall not represent a client in a matter directly adverse to a person who the LLLT knows is represented by the related LLLT or lawyer unless:
(1) the client gives informed consent to the representation; and
(2) the representation is not otherwise prohibited by Rule 1.7.
(m) [Reserved.]
IS a LLLT able to enter into a business transaction with a current client?
Because of the limitations on the scope of an LLLT’s authorized practice, the analysis and disclosures that suffice under Lawyer RPC 1.8(a) to enable a lawyer to enter into such a transaction despite the existence of a conflict of interest
are not feasible in the client-LLLT
relationship. For this reason, LLLT RPC 1.8(a) strictly prohibits an LLLT from entering into any business transaction with a current client.
As a LLLT are you able to make an agreement with your client that limits LLLT’s liability to the client for malpractice?
Unlike a lawyer, an LLLT is strictly prohibited by Rule 1.8(h)(1) from making any agreement that prospectively limits the LLLT’s liability to the client for malpractice.
If you are assisting your client in their family law legal matter (who does not also have an attorney) , is that client considered represented?
A client or former client of an LLLT who is not represented by a lawyer is unrepresented for purposes of Rule 1.8(h)(2).
Are you as a LLT able to acquire any proprietary interest in a client’s cause of action or the subject matter of litigation?
Unlike a lawyer, an LLLT is prohibited by Rule 1.8(i) from acquiring any proprietary interest in a client’s cause of action or the subject matter of litigation.
Describe and Define imputation of a conflict of interest
[8] If one LLLT or lawyer in a firm has a conflict of interest specified under this Rule, other LLLTs and lawyers in the firm may, under some circumstances, have the same conflict of interest or be subject to the same prohibition.
This is called imputation of a conflict of interest.
Similarly, in a firm that includes both LLLTs and lawyers, a conflict of interest of a lawyer will,
under some circumstances, be imputed to an LLLT in the firm. Rule 1.8(k) describes the imputations of Rule 1.8 conflicts in a firm.
LLLT RPC 1.9
DUTIES TO FORMER CLIENTS
As a LLLT what are these duties?
(a) An LLLT who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives
informed consent confirmed in writing.
(b) An LLLT shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the LLLT formerly was associated had previously represented a client
(1) whose interests are materially adverse to that person; and
(2) about whom that LLLT had acquired information protected by Rules 1.6 and 1.9(c) that
is material to the matter; unless the former client gives informed consent, confirmed in writing.
(c) An LLLT who has formerly represented a client in a matter or whose present or former
firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client
except as these Rules would permit or require with respect to a client, or when the information
has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or
require with respect to a client.
LLLT RPC 1.10
What is the GENERAL RULE OF IMPUTATION OF CONFLICTS OF INTEREST:
(a) Except as provided in paragraph (e), while LLLTs are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal
interest of the disqualified LLLT and does not present a significant risk of materially limiting the representation of the client by the remaining LLLTs in the firm.
(b) When an LLLT has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated LLLT and not currently represented by the firm, unless:
(1) the matter is the same or substantially related to that in which the formerly associated LLLT represented the client; and
(2) any LLLT remaining in the firm has information that is material to the matter and that is protected by Rules 1.6 and 1.9(c).
(c) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7.
(d) The disqualification of LLLTs associated in a firm with former or current government LLLTs is governed by Rule 1.11.
(e) When the prohibition on representation under paragraph (a) is based on Rule 1.9(a) or (b) and arises out of the disqualified LLLT’s association with a prior firm, no other LLLT in the firm shall knowingly represent a person in a matter in which that LLLT is disqualified
unless:
(1) the personally disqualified LLLT is screened by effective means from participation in the matter and is apportioned no part of the fee therefrom;
(2) the former client of the personally disqualified LLLT receives notice of the conflict and the screening mechanism used to prohibit the dissemination of information relating to the former representation;
(3) the firm is able to demonstrate by convincing evidence that no material information relating to the former representation was transmitted by the personally disqualified LLLT before implementation of the screening mechanism and notice to the former client.
Any presumption that information protected by Rules 1.6 and 1.9(c) has been or will be transmitted may be rebutted if the personally disqualified LLLT serves on his or her former firm and former client an affidavit attesting that the personally disqualified LLLT will not participate in the matter and will not discuss the matter or the representation with any other LLLT or employee of his or her current firm, and attesting that during the period of the LLLT’s personal disqualification those LLLTs, or employees who do participate in the matter will be apprised that the personally disqualified LLLT is screened from participating in or discussing the matter.
Such affidavit shall describe the procedures being used effectively to screen the personally disqualified LLLT. Upon request of the former client, such affidavit shall be updated periodically to show actual compliance with the screening procedures. The firm, the personally
disqualified LLLT, or the former client may seek judicial review in a court of general jurisdiction of the screening mechanism used, or may seek court supervision to ensure that implementation of the screening procedures has occurred and that effective actual compliance has been achieved.
(f) When LLLTs and lawyers are associated in a firm, a lawyer’s conflict of interest under Lawyer RPC 1.7 or Lawyer RPC 1.9 is imputed to LLLTs in the firm in the same way as conflicts are imputed to LLLTs under this Rule. Each of the other provisions of this Rule also
applies in the same way when lawyer conflicts are imputed to LLLTs in the firm.
LLLT RPC 1.11
SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES
(a) Except as law may otherwise expressly permit, an LLLT who has formerly served as a public officer or employee of the government:
(1) is subject to Rule 1.9(c); and
(2) shall not otherwise represent a client in connection with a matter in which the LLLT participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation.
(b) When an LLLT or lawyer is disqualified from representation under paragraph (a) of this Rule or Lawyer RPC 1.11, no LLLT in a firm with which that LLLT or lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified LLLT or lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule.
(c) Except as law may otherwise expressly permit, an LLLT having information that the LLLT knows is confidential government information about a person acquired when the LLLT was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule the term “confidential government information” means
information that has been obtained under governmental authority and which, at the time this Rule
is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that LLLT is associated may undertake or continue representation in the matter only if the disqualified LLLT is screened from any participation in the matter and is apportioned no part of
the fee therefrom.
(d) Except as law may otherwise expressly permit, an LLLT currently serving as a public officer or employee:
(1) is subject to Rules 1.7 and 1.9; and
(2) shall not:
(i) participate in a matter in which the LLLT participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed writing; or
(ii) negotiate for private employment with any person who is involved as a party or asLLLT for a party in a matter in which the LLLT is participating personally and substantially, except that an LLLT who may otherwise be serving as a law clerk to a judge, other adjudicative
officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
(e) As used in this Rule, the term “matter” includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest, or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate government
agency.
LLLT RPC 1.12
FORMER JUDGE, ARBITRATOR, MEDIATOR OR OTHER
THIRD-PARTY NEUTRAL
(a) Except as stated in paragraph (d), an LLLT shall not represent anyone in connection with a matter in which the LLLT participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent confirmed in writing.
(b) An LLLT shall not negotiate for employment with any person who is involved as a party or as LLLT for a party in a matter in which the LLLT is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator, or other thirdparty neutral. An LLLT serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or LLLT involved in a matter in which the clerk is participating personally and substantially, but only after the LLLT has notified the judge or other adjudicative officer.
(c) If an LLLT or lawyer is disqualified by paragraph (a) of this Rule or Lawyer RPC 1.12, no LLLT in a firm with which that LLLT or lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified LLLT or lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.
(d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not
prohibited from subsequently representing that party.
LLLT RPC 1.14
CLIENT WITH DIMINISHED CAPACITY
(a) When a client’s capacity to make adequately considered decisions in connection with a
representation is diminished, whether because of minority, mental impairment or for some other reason, the LLLT shall, as far as reasonably possible, maintain a normal client-LLLT relationship with the client.
(b) When the LLLT reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the LLLT may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client. In taking any protective action under this Rule, the LLLT shall not exceed the LLLT’s authorized
scope of practice.
(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the LLLT is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.
LLLT RPC 1.15A
SAFEGUARDING PROPERTY
(a) This Rule applies to property of clients or third persons in an LLLT’s possession in connection with a representation.
(b) An LLLT must not use, convert, borrow, or pledge client or third person property for the LLLT’s own use.
(c) An LLLT must hold property of clients and third persons separate from the LLLT’s own property.
(1) An LLLT must deposit and hold in a trust account funds subject to this Rule pursuant to paragraph (h) of this Rule.
(2) Except as provided in Rule 1.5(f), and subject to the requirements of paragraph (h) of this Rule, an LLLT shall deposit into a trust account legal fees and expenses that have been paid in advance, to be withdrawn by the LLLT only as fees are earned or expenses incurred.
(3) An LLLT must identify, label, and appropriately safeguard any property of clients or third persons other than funds. The LLLT must keep records of such property that identify the property, the client or third person, the date of receipt, and the location of safekeeping. The LLLT must preserve the records for seven years after return of the property.
(d) An LLLT must promptly notify a client or third person of receipt of the client or third person’s property.
(e) An LLLT must promptly provide a written accounting to a client or third person after distribution of property or upon request. An LLLT must provide at least annually a written accounting to a client or third person for whom the LLLT is holding funds.
(f) Except as stated in this Rule, an LLLT must promptly pay or deliver to the client or third person the property which the client or third person is entitled to receive.
(g) If an LLLT possesses property in which two or more persons (one of which may be the LLLT) claim interests, the LLLT must maintain the property in trust until the dispute is resolved. The LLLT must promptly distribute all undisputed portions of the property. The LLLT must
take reasonable action to resolve the dispute.
(h) An LLLT must comply with the following for all trust accounts:
(1) No funds belonging to the LLLT may be deposited or retained in a trust account except as follows:
(i) funds to pay bank charges, but only in an amount reasonably sufficient for that purpose;
(ii) funds belonging in part to a client or third person and in part presently or potentially to the LLLT must be deposited and retained in a trust account, but any portion belonging to the LLLT must be withdrawn at the earliest reasonable time; or
(iii) funds necessary to restore appropriate balances.
(2) An LLLT must keep complete records as required by Rule 1.15B.
(3) An LLLT may withdraw funds when necessary to pay client costs. The LLLT may withdraw earned fees only after giving reasonable notice to the client of the intent to do so, through a billing statement or other document.
(4) Receipts must be deposited intact.
(5) All withdrawals must be made only to a named payee and not to cash. Withdrawals must be made by check or by electronic transfer.
(6) Trust account records must be reconciled as often as bank statements are generated or at least quarterly. The LLLT must reconcile the check register balance to the bank statement balance and reconcile the check register balance to the combined total of all client ledger records required by Rule 1.15B(a)(2).
(7) An LLLT must not disburse funds from a trust account until deposits have cleared the banking process and been collected unless the LLLT and the bank have a written agreement by which the LLLT personally guarantees all disbursements from the account without recourse to the trust account.
(8) Disbursements on behalf of a client or third person may not exceed the funds of that person on deposit. The funds of a client or third person must not be used on behalf of anyone else.
(9) Only an LLLT or a lawyer admitted to practice law may be an authorized signatory on the account.
(i) Trust accounts must be interest-bearing and allow withdrawals or transfers without any delay other than notice periods that are required by law or regulation and meet the requirements of ELC 15.7(d) and (e). In the exercise of ordinary prudence, an LLLT may select any financial institution authorized by the Legal Foundation of Washington (Legal Foundation) under ELC 15.7(c). In selecting the type of trust account for the purpose of depositing and holding funds subject to this Rule, an LLLT shall apply the following criteria:
(1) When client or third-person funds will not produce a positive net return to the client or third-person because the funds are nominal in amount or expected to be held for a short period of time the funds must be placed in a pooled interest-bearing trust account known as an Interest on Limited License Legal Technician’s Trust Account or IOLTA. The interest earned on IOLTA accounts shall be paid to, and the IOLTA program shall be administered by, the Legal
Foundation of Washington in accordance with ELLLTC 15.4 and ELC 15.7(e).
(2) Client or third-person funds that will produce a positive net return to the client or third
person must be placed in one of the following two types of non-IOLTA trust accounts, unless the
client or third person requests that the funds be deposited in an IOLTA account:
(i) a separate interest-bearing trust account for the particular client or third person with earned interest paid to the client or third person; or
(ii) a pooled interest-bearing trust account with sub-accounting that allows for computation
of interest earned by each client or third person’s funds with the interest paid to the appropriate
client or third person.
(3) In determining whether to use the account specified in paragraph (i)(1) or an account specified in paragraph (i)(2), an LLLT must consider only whether the funds will produce a positive net return to the client or third person, as determined by the following factors:
(i) the amount of interest the funds would earn based on the current rate of interest and theexpected period of deposit;
(ii) the cost of establishing and administering the account, including the cost of the LLLT’s
services and the cost of preparing any tax reports required for interest accruing to a client or third
person’s benefit; and
(iii) the capability of financial institutions to calculate and pay interest to individual clients or third persons if the account in paragraph (i)(2)(ii) is used.
(4) The provisions of paragraph (i) do not relieve an LLLT or law firm from any obligation imposed by these Rules or the ELLLTC.
LLLT RPC 1.15B
REQUIRED TRUST ACCOUNT RECORDS
(a) An LLLT must maintain current trust account records. They may be in electronic or manual form and must be retained for at least seven years after the events they record. At minimum, the records must include the following:
(1) Checkbook register or equivalent for each trust account, including entries for all receipts, disbursements, and transfers, and containing at least:
(i) identification of the client matter for which trust funds were received, disbursed, or transferred;
(ii) the date on which trust funds were received, disbursed, or transferred;
(iii) the check number for each disbursement;
(iv) the payor or payee for or from which trust funds were received, disbursed, or transferred; and
(v) the new trust account balance after each receipt, disbursement, or transfer;
(2) Individual client ledger records containing either a separate page for each client or an equivalent electronic record showing all individual receipts, disbursements, or transfers, and also containing:
(i) identification of the purpose for which trust funds were received, disbursed, or transferred;
(ii) the date on which trust funds were received, disbursed or transferred;
(iii) the check number for each disbursement;
(iv) the payor or payee for or from which trust funds were received, disbursed, or transferred; and
(v) the new client fund balance after each receipt, disbursement, or transfer;
(3) Copies of any agreements pertaining to fees and costs;
(4) Copies of any statements or accountings to clients or third parties showing the disbursement of funds to them or on their behalf;
(5) Copies of bills for legal fees and expenses rendered to clients;
(6) of invoices, bills, or other documents supporting all disbursements or transfers from the trust account;
(7) Bank statements, copies of deposit slips, and canceled checks or their equivalent;
(8) Copies of all trust account bank and client ledger reconciliations; and
(9) Copies of those portions of clients’ files that are reasonably necessary for a complete understanding of the financial transactions pertaining to them.
(b) Upon any change in the LLLT’s practice affecting the trust account, including dissolution or sale of a law firm or other entity, or suspension or other change in membership status, the LLLT must make appropriate arrangements for the maintenance of the records
specified in this Rule.
LLLT RPC 1.16
DECLINING OR TERMINATING REPRESENTATION
(a) An LLLT shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of these Rules or other law;
(2) the LLLT’s physical or mental condition materially impairs the LLLT’s ability to represent the client; or
(3) the LLLT is discharged.
(b) An LLLT may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the LLLT’s services that the LLLT reasonably believes is criminal or fraudulent;
(3) the client has used the LLLT’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the LLLT considers repugnant or with which the LLLT has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the LLLT regarding the LLLT’s services and has been given reasonable warning that the LLLT will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the LLLT or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) [Reserved.]
(d) Upon termination of representation, an LLLT shall
take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of a lawyer or another LLLT, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned or does not enter a notice of appearance.
For this reason, paragraph (c) is reserved. Otherwise,
Lawyer RPC 1.16 applies to LLLTs analogously.
Upon termination of representation, an LLLT shall?
take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of a lawyer or another LLLT, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned or does not enter a notice of appearance.
For this reason, paragraph (c) is reserved. Otherwise,
Lawyer RPC 1.16 applies to LLLTs analogously.
LLLT RPC 1.17
SALE OF LAW PRACTICE
An LLLT, firm of LLLTs, or a law firm with which one or more LLLTs are associated may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied:
(a) [Reserved.]
(b) The entire practice, or the entire area of practice, is sold to one or more LLLTs, lawyers, LLLT firms or law firms;
(c) The seller gives written notice to each of the seller’s clients regarding:
(1) the proposed sale;
(2) the client’s right to retain a lawyer or another LLLT or to take possession of the file; and
(3) the fact that the client’s consent to the transfer of the client’s files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice.
If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having
jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.
(d) The fees charged to clients shall not be increased by reason of the sale.
AS A LLLT ARE YOU ALLOWED TO PURCHASE A LAW PRACTICE THAT INCLUDES CLIENT MATTERS REQUIRING PROVISION OF LEGAL SERVICES OUTSIDE OF THE LLLT SCOPE OF PRACTICE AREAS?
LLLT RPC 1.17 COMMENT [2]
A law firm consisting solely of LLLT owners is not authorized to purchase a law practice that
includes client matters requiring the provision of legal services outside the authorized LLLT scope
of practice or defined practice area(s). See APR 28 and related regulations.
