Can a lawyer offer to represent someone for free at first and then ask for a retainer the next day?

Plain-English summary

A lawyer asked about offering services in person for free initially and then, the very next day, asking the client for a retainer for continued representation. The committee was of the opinion that, depending on the specific circumstances, this conduct may be permissible under the Rules of Professional Conduct.

The committee identified several limits. The conduct would be prohibited by RPC 7.3(a) if the lawyer's conduct is motivated by pecuniary gain. Depending on the circumstances, the representation may be prohibited by RPC 3.7. The lawyer's subsequent termination of representation may be prohibited by RPC 1.15. The committee cautioned that a fee arrangement cannot be changed midstream.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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. Under Washington's pre-2006 numbering, RPC 1.15 corresponds to ABA Model Rule 1.16 (declining or terminating representation); RPC 3.7 and 7.3 correspond to ABA Model Rules 3.7 (lawyer as witness) and 7.3 (solicitation).

Common questions

Q: Can a lawyer offer free help and then ask for a retainer the next day?

A: The committee said it may be permissible depending on the circumstances, but it would be prohibited by RPC 7.3(a) if the lawyer's conduct is motivated by pecuniary gain.

Q: What other rules could the arrangement run into?

A: The committee said representation may be prohibited by RPC 3.7 depending on the circumstances, and a later termination may be prohibited by RPC 1.15.

Q: Can the lawyer switch from free to paid representation?

A: The committee cautioned that a fee arrangement cannot be changed midstream.

Background and rules framework

The opinion applied RPC 7.3(a) (solicitation, corresponding to ABA Model Rule 7.3), RPC 3.7 (lawyer as witness, ABA Model Rule 3.7), and RPC 1.15 (Washington's pre-2006 rule on declining or terminating representation, corresponding to ABA Model Rule 1.16). The committee made the analysis fact-specific, with the lawyer's motive of pecuniary gain as the key factor for the solicitation question.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 7.3 (solicitation of clients); Washington RPC 7.3(a)
• ABA Model Rule 3.7 (lawyer as witness); Washington RPC 3.7
• ABA Model Rule 1.16 (declining or terminating representation); Washington RPC 1.15

See also

• WA Ethics Op. 1603: In-Person Solicitation at Networking Events
• WA Ethics Op. 1003: Lawyer as Witness and Continued Representation Outside Trial

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=704

Original opinion text

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

Advisory Opinion: 1621
Year Issued: 1995
RPC(s): RPC 1.15; 3.7; 7.3
Subject: In-person solicitation; lawyer initially offers services without charge, then requests retainer

The Committee discussed your inquiry regarding the ethical propriety of a lawyer offering his or her services [in person] for free initially, but the very next day asking the client for a retainer for continued representation.

The Committee was of the opinion that, depending on the specific circumstances, this conduct may be permissible under the Rules of Professional Conduct. However, the conduct would be prohibited by RPC 7.3(a) if the lawyer's conduct is motivated by pecuniary gain. In addition, depending on the circumstances, client representation may be prohibited by RPC 3.7. The lawyer's subsequent termination of representation may be prohibited by RPC 1.15. The lawyer is cautioned that a fee arrangement cannot be changed midstream.