Must a lawyer-witness disclose to opposing counsel that the lawyer is participating in the representation and sharing in the contingent fee?
Apply this to your situation
This page answers the general question as of 1990. Ask about yours and see what the current Washington Rules of Professional Conduct says for your facts, with citations.
Plain-English summary
The inquiry asked whether a lawyer must disclose that a lawyer-witness is participating in the representation of a client and sharing in the contingent fee. The committee was of the opinion that nothing in the Rules of Professional Conduct requires a lawyer to disclose that relationship to the opposing lawyer.
The committee directed attention to the provisions of RPC 3.7 and 1.5(e)(2), which might affect other aspects of the situation presented.
Currency note
This opinion was issued in 1990, 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 Treat this page as historical context, not current guidance.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: Does a lawyer-witness who shares the contingent fee have to tell opposing counsel?
A: Under this 1990 opinion, no; the committee was of the opinion that nothing in the rules requires disclosing that relationship to the opposing lawyer.
Q: Are there still rules the lawyer should consider?
A: Yes. The committee directed attention to RPC 3.7 (lawyer as witness) and RPC 1.5(e)(2) (division of fees), which might affect other aspects of the situation.
Background and rules framework
At the time of this opinion, Washington's RPC 3.7 governed a lawyer acting as a witness and RPC 1.5(e) governed division of fees, the subjects the Model Rules place in Rules 3.7 and 1.5. The committee answered the narrow disclosure question in the negative while signaling that the lawyer-witness and fee-division rules could bear on whether the arrangement was otherwise permissible.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 3.7 (lawyer as witness)
- ABA Model Rule 1.5(e) (division of fees)
- Washington RPC 3.7, 1.5(e)(2)
See also
- WA Ethics Op. 1365: 'Of Counsel' Designation With Referrals
- WA Ethics Op. 1366: Reciting an Hourly-Rate Offer in a Contingent Fee Agreement
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=447
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Committee reviewed your inquiry concerning whether a lawyer needs to disclose that a lawyer/witness is participating in the representation of a client and sharing in the contingent fee. The Committee was of the opinion that nothing in the Rules of Professional Conduct requires a lawyer to disclose that relationship to the opposing lawyer, but directed me to call your attention to the provisions of RPC 3.7 and 1.5(e)(2) which might affect other aspects of such a situation as you presented.
What do the rules say today, for your facts?
This opinion is from 1990. Ezel checks the current Washington Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace