If a lawyer receives funds payable to a client that the client is not entitled to, what must the lawyer do before returning them?

Plain-English summary

The inquiry concerned a lawyer who had received funds payable to a client that the client was not entitled to, and what the lawyer's obligation was before returning them.

The committee was of the opinion that the lawyer is obliged to advise the client of the lawyer's intention to return the funds and the reason for doing so. The point of the notice is to give the client an opportunity to object, so that the client has the opportunity to present any valid claim the client may have on the funds.

Currency note

This opinion was issued in 1987, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer just return funds the client isn't entitled to without telling the client?

A: Per the committee, no. The lawyer must advise the client of the intention to return the funds and the reason, so the client can object or assert any valid claim.

Q: Why give the client notice if the client isn't entitled to the money?

A: The committee framed the notice as preserving the client's chance to present any valid claim the client may in fact have on the funds, rather than the lawyer deciding entitlement unilaterally.

Background and rules framework

The opinion was issued under RPC 1.2(d), RPC 1.6, and RPC 8.4(c) (corresponding to ABA Model Rules 1.2, 1.6, and 8.4), the rules governing the limits of representation, confidentiality, and conduct involving dishonesty. The committee's directive centered on giving the client notice and an opportunity to object before the lawyer returns funds payable to the client that the client appears not to be entitled to.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation); Washington RPC 1.2(d)
• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(c)

See also

• WSBA Ethics Op. 1327: Trust Funds, Competing Claimants
• WSBA Ethics Op. 1610: Paying Creditors From Trust Funds
• WSBA Ethics Op. 1032: Lawyer-Fiduciary Trust Funds

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1149

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Advisory Opinion: 1113
Year Issued: 1987
RPC(s): RPC 1.2(d); 1.6; 8.4(c)
Subject: Disposition of funds payable to client to which client is not entitled

The Committee was of the opinion that where you have received funds payable to your client to which your client is not entitled, you are obliged to advise your client of your intention to return the funds and the reason for doing so, in order to provide your client with an opportunity to object so that your client has the opportunity to present any valid claim he may have on the funds.