Can the ethics committee say whether a statute criminalizing advice on asset transfers to qualify for benefits affects a lawyer's duties?

Plain-English summary

The inquiry concerned a conflict based on the Penalty for Fraudulent Eligibility law, which the inquiry described as making it a crime to counsel or assist in the transfer of assets to become eligible for Medicare benefits. The committee determined that its procedural rules do not allow it to issue opinions on questions of law, and that the rules prohibit it from giving an opinion as to the validity, applicability, or constitutionality of the statute cited in the inquiry.

The committee stated that RPC 8.4 and 1.2(d) should be considered by the lawyer regarding advice to clients.

Currency note

This opinion was issued in 1998, 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 Treat this page as historical context, not current guidance.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. Washington's cited rules correspond to ABA Model Rules 1.2 (scope of representation; subsection (d) bars counseling or assisting a client in crime or fraud) and 8.4 (misconduct).

Common questions

Q: Did the committee decide whether the eligibility statute restricts a lawyer's advice?

A: No. The committee said its procedural rules bar it from issuing opinions on questions of law, including the statute's validity, applicability, or constitutionality.

Q: What guidance did the committee give the lawyer instead?

A: It said the lawyer should consider RPC 8.4 and 1.2(d) when advising clients.

Background and rules framework

The opinion pointed the lawyer to RPC 1.2(d) (a lawyer may not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent) and RPC 8.4 (misconduct), corresponding to ABA Model Rules 1.2 and 8.4. Rather than interpret the Penalty for Fraudulent Eligibility statute, the committee limited itself to directing the lawyer to consider those rules.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.2 (scope of representation), subsection (d) (counseling or assisting crime or fraud); Washington RPC 1.2(d)
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4

Statutes:

• Penalty for Fraudulent Eligibility law (described in the inquiry as criminalizing counseling or assisting asset transfers to become eligible for Medicare benefits); the committee gave no opinion on the statute.

See also

• WSBA Ethics Op. 1070: Advising Interspousal Transfers
• WA Ethics Op. 1736: Hold-Harmless Pledge of Lawyer Credit

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=990

Original opinion text

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

Advisory Opinion: 1797
Year Issued: 1998
RPC(s): RPC 1.2(d); 8.4
Subject: Penalty for Fraudulent Eligibility Law; giving advice made illegal by statute

The Committee researched and reviewed your inquiry concerning the conflict of interest based upon the Penalty for Fraudulent Eligibility law [which makes it a crime to counsel or assist in the transfer of assets to become eligible for Medicare benefits] and determined the following:

The procedural rules of the RPC Committee do not allow the committee to issue opinions on questions of law. The rules prohibit the committee from giving an opinion as to the validity, applicability or constitutionality of the statute cited in the inquiry. RPC 8.4 and 1.2(d) should be considered by the lawyer regarding advice to clients.