Can a lawyer give the executrix-client a share of the legal fee instead of her taking an executrix fee, to hide her compensation from another heir?

Plain-English summary

The inquiry asked whether a lawyer could share a portion of the legal fee with the client in lieu of her taking an executrix fee. The committee was of the opinion that a number of provisions of the Rules of Professional Conduct would prohibit such a sharing of fees.

The committee reasoned that the purpose of the client's proposal was to deceive the client's brother about whether the client had received any compensation for her duties as executrix, which would violate RPC 1.2(d). It was of the opinion that the conduct could be construed as offering financial assistance prohibited by RPC 1.8(e), since it was not an advance of costs. Because the lawyer would be required to present the court with an accounting, failing to disclose payment of a fee to the executrix would be a fraud on the tribunal in violation of RPC 3.3(a), and the false statement of a material fact would violate RPC 4.1. Finally, the committee was of the opinion that the fee sharing was not within the exceptions provided by RPC 5.4(a).

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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 pay the executrix-client part of the fee instead of her taking an executrix fee?

A: Under this 1989 opinion, not where the purpose is to conceal her compensation. The committee found the arrangement prohibited by several rules, starting with RPC 1.2(d) because its purpose was to deceive the client's brother.

Q: Why would not disclosing the payment be a problem with the court?

A: Because the lawyer would have to present an accounting. The committee was of the opinion that failing to disclose the executrix's payment would be a fraud on the tribunal under RPC 3.3(a) and a false statement of material fact under RPC 4.1.

Q: Is this just an ordinary fee split?

A: No. The committee was of the opinion that the fee sharing was not within the exceptions allowed by RPC 5.4(a), and separately amounted to prohibited financial assistance under RPC 1.8(e).

Background and rules framework

The opinion stacks several rules. RPC 1.2(d) bars assisting a client in conduct the lawyer knows is fraudulent. RPC 1.8(e) limits financial assistance to a client. RPC 3.3(a) requires candor to the tribunal, and RPC 4.1 bars false statements of material fact to others. RPC 5.4(a), Washington's version of ABA Model Rule 5.4(a), restricts sharing legal fees with a nonlawyer to enumerated exceptions. The committee read all five to prohibit a fee share designed to conceal the executrix's compensation from another heir and from the court.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation; fraudulent conduct)
• ABA Model Rule 1.8(e) (financial assistance to a client)
• ABA Model Rule 3.3 (candor toward the tribunal)
• ABA Model Rule 4.1 (truthfulness in statements to others)
• ABA Model Rule 5.4 (professional independence; sharing fees with a nonlawyer)
• Washington RPC 1.2(d), RPC 1.8(e), RPC 3.3(a), RPC 4.1, RPC 5.4(a)

See also

• WA Ethics Op. 1332: Splitting Court-Awarded Fees With a Collection Agency
• WA Ethics Op. 1322: Undisclosed Heir and Misdistributed Estate Funds

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=411

Original opinion text

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

The Committee reviewed your inquiry regarding whether you could share a portion of your legal fees with your client in lieu of her taking an executrix fee. The Committee was of the opinion that a number of provisions of the Rules of Professional Conduct would prohibit such a sharing of fees. First, the Committee was of the opinion that the purpose of this proposal from your client was to deceive the client's brother regarding whether the client had received any compensation for her duties as the executrix of the estate. The Committee was of the opinion this would violate RPC 1.2(d). Further, the Committee was of the opinion that such conduct could be construed as offering financial payment which, although it is not an advance of costs, cannot be anything less than financial assistance prohibited by RPC 1.8(e). Further, the Committee was of the opinion that since you would be required to present the court with an accounting, failure to disclose payment of a fee to the executrix would be a fraud upon the tribunal and a violation of RPC 3.3(a). Similarly, the making of such a false statement of a material fact would constitute a violation of RPC 4.1. Finally, the Committee was of the opinion that such a sharing of legal fees was not within the exceptions provided by RPC 5.4(a).