Under a screening setup, how must a firm handle the screened lawyer's fee share, and does the required notice to the former client violate the no-contact rule?
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This page answers the general question as of 1992. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A lawyer asked about complying with RPC 1.10(b), which requires that a lawyer screened from a matter be "apportioned no part of the fee therefrom." The committee distinguished between a personally disqualified associate and a personally disqualified partner. It was of the opinion that a personally disqualified associate may be paid a regular salary, but may not share in any bonus or other additional payment based on the fee received in the case from which he or she is screened.
For a personally disqualified partner, the committee said the firm must put in place an accounting practice to ensure the gross income from the case is handled so that the disqualified partner does not share in it in any way, and the firm must document that accounting, because the rule places the burden of proving compliance on the firm.
The lawyer also asked whether the RPC 1.10(b) notice requirement would violate RPC 4.2. The committee was of the opinion that it would not, because the notice is not the "subject matter of the representation," and because the Rules of Professional Conduct require the notice, it is "authorized by law" as RPC 4.2 provides.
Currency note
This opinion was issued in 1992, 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 Treat this page as historical context, not current guidance.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: How may a screened associate be paid?
A: The committee was of the opinion that a screened associate may be paid a regular salary, but may not share in any bonus or additional payment based on the fee from the screened case.
Q: What must a firm do about a screened partner's share of the fee?
A: The committee said the firm must use an accounting practice ensuring the disqualified partner does not share in the case income in any way, and must document it, because the firm bears the burden of proving compliance.
Q: Does the RPC 1.10(b) notice to the former client violate the no-contact rule?
A: No. The committee said the notice is not the subject matter of the representation and is authorized by law, so it does not violate RPC 4.2.
Background and rules framework
The opinion applied RPC 1.10(b) (imputed disqualification and the screening conditions, including that the screened lawyer be apportioned no part of the fee) and RPC 4.2 (communication with represented persons), corresponding to ABA Model Rules 1.10 and 4.2. The committee read the fee bar to permit ordinary salary while forbidding case-tied bonuses, to require documented accounting for a screened partner, and to treat the required notice as "authorized by law" and so outside RPC 4.2.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.10 (imputation of conflicts; screening); Washington RPC 1.10(b)
- ABA Model Rule 4.2 (communication with represented persons; "authorized by law"); Washington RPC 4.2
Other opinions cited:
- WSBA Formal Opinion 190 (noted in the official record's editor's note).
See also
- WA Ethics Op. 1465: Lawyer Adverse to Former Firm's Client
- ABA Formal Op. 99-414: Lawyers Changing Firms
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=578
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1498
Year Issued: 1992
RPC(s): RPC 1.10(b); 4.2
Subject: Imputed disqualification; apportionment of fee and notice to former client
The Committee reviewed your inquiry concerning compliance with RPC 1.10(b) and the requirement that a lawyer who is screened from participation in a matter is "apportioned no part of the fee therefrom". First, the Committee distinguished between a personally disqualified associate attorney and a personally disqualified partner. The Committee was of the opinion that a personally disqualified associate may be paid a regular salary, but may not share in any bonus or any other additional payment based upon the fee received in the case from which he or she is screened.
The Committee was of the opinion that in the case of a personally disqualified partner, the law firm must put into place an accounting practice to ensure that the gross income received from the case is handled in such a way that the personally disqualified partner does not share in it in any way. The Committee was further of the opinion that the law firm must document that accounting because the rule places the burden of proof of compliance upon the law firm.
Further, you inquire whether compliance with the notice requirement of RPC 1.10(b) would violate RPC 4.2. The Committee was of the opinion that it would not violate that rule because, first, the notice to be provided is not the "subject matter of the representation" and second, since the Rules of Professional Conduct require this notice, it is "authorized by law" as RPC 4.2 provides for.
[Editor's Note: See Formal Opinion 190]
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