Can a Washington lawyer agree that a client repays advanced litigation costs only if the case is won?

Plain-English summary

The inquirer asked whether a lawyer may enter a contingent fee agreement in which the lawyer advances the costs on the client's behalf, with repayment of those advances contingent on the outcome of the case.

The committee concluded that RPC 1.8(e) prohibits a lawyer from advancing the expenses of litigation where payment of those expenses is contingent on the outcome of the litigation. It therefore opined that the proposed fee agreement would violate RPC 1.8(e).

Currency note

This opinion was issued in 2000, 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 Treat this page as historical context, not current guidance.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: Can a lawyer advance litigation costs for a client at all?

A: The opinion addresses only the contingent-repayment term. It states that RPC 1.8(e) prohibits advancing litigation expenses where repayment is made contingent on the outcome.

Q: Why does tying repayment to the outcome violate the rule?

A: The committee read RPC 1.8(e) to prohibit a lawyer from advancing the expenses of litigation the payment of which is contingent on the outcome, so the proposed agreement fell within that prohibition.

Background and rules framework

The opinion applied Washington RPC 1.8(e) (financial assistance to a client in connection with litigation, corresponding to ABA Model Rule 1.8(e)), reading it to bar an arrangement under which the client's repayment of advanced litigation costs would depend on whether the case was won.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.8 (current clients: specific rules; financial assistance); Washington RPC 1.8(e)

See also

• WSBA Ethics Op. 1074: Contingent Fee, Domestic Split
• WA Ethics Op. 1900D: Contingent Fee, Unmarried Parties
• WSBA Ethics Op. 1182: Contingent-Fee Ads and Costs

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1105

Original opinion text

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

Advisory Opinion: 1911
Year Issued: 2000
RPC(s): RPC 1.8(e)
Subject: Contingent fee agreement provides that repayment of costs advanced is contingent on outcome

The inquirer asked if a lawyer may enter into a contingent fee agreement in which the lawyer advances the costs on behalf of the client, with repayment of those advances contingent on the outcome of the case.

The committee stated that RPC 1.8(e) prohibits a lawyer from advancing the expenses of litigation the payment of which is contingent on the outcome of the litigation. Therefore, it is the opinion of the committee that the fee agreement the inquirer proposed would violate RPC 1.8(e).