When does an attorney-client relationship form under a prepaid legal services plan, and can the plan's Washington lawyer initiate contact with plan purchasers about plan benefits?

Plain-English summary

The inquirer was the Washington State service provider for a for-profit prepaid legal services plan and asked two questions: at what point the attorney-client relationship forms under the plan, and whether the lawyer may initiate contact with plan purchasers to tell them about plan benefits. The committee said the Rules of Professional Conduct must be complied with at all stages of implementing such a plan, and that the plan agreements raised numerous contract and other substantive-law questions outside the committee's purview. It flagged that, in forming relationships under the plan, the lawyer must comply with RPC 1.2(c) (consultation before limiting the scope of representation), RPC 1.7(b) (waiver of potential conflicts as to the plan seller), RPC 1.8(a) and/or 1.7(b) (business transactions with clients selecting non-plan counsel), RPC 1.8(f) (accepting fee payment from someone other than the client), and RPC 7.1(a) (misleading statements about a lawyer's services in the membership contract).

On the first question, the committee said whether an attorney-client relationship exists is a mixed question of law and fact that may turn on the client's subjective belief based on reasonable facts (citing Bohn v. Cody), and it does not opine on substantive law. For purposes of the second question, it stated that after purchase and before the plan purchaser seeks advice, an attorney-client relationship is unlikely, because subscribers must contact the lawyer to establish the relationship, even where the plan agreement does not expressly require a separate representation agreement first.

On the second question, the committee said RPC 7.3(a) permits the lawyer to contact a plan purchaser in person or by telephone (absent a family relationship) only where an attorney-client relationship currently exists or previously existed; that prohibition includes disseminating information on, or invitations to exercise, plan benefits. RPC 7.3(b) permits written communication of this type directed at plan purchasers so long as they have not manifested a desire not to receive it. The committee did not address other ethical issues that plan participation might raise beyond those in the inquiry.

Currency note

This opinion was issued in 2002, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Washington later adopted a specific rule on duties to prospective clients (RPC 1.18) and amended its solicitation rule (RPC 7.3); the rule numbering in this opinion reflects the pre-2006 rules. 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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated the attorney-client relationship as unlikely to exist between a consumer's purchase of the plan and that subscriber's first request for advice, because the subscriber must contact the lawyer to establish it. It treated RPC 7.3(a) as barring lawyer-initiated in-person or telephone contact (including to convey plan benefits) absent a current or prior attorney-client relationship, while RPC 7.3(b) allowed written communication unless the recipient had manifested a desire not to receive it. The committee expressly declined to resolve the precise point at which the relationship forms, calling it a mixed question of law and fact.

Common questions

Q: When does the attorney-client relationship form under a prepaid legal services plan?

A: The committee declined to fix the moment, calling it a mixed question of law and fact that may turn on the client's reasonable subjective belief (citing Bohn v. Cody); it said the relationship is unlikely to exist after purchase but before the subscriber contacts the lawyer, because the subscriber must contact the lawyer to establish it.

Q: Can the plan's lawyer call or meet plan purchasers to tell them about plan benefits?

A: The committee said RPC 7.3(a) permits in-person or telephone contact only where an attorney-client relationship currently exists or previously existed; absent that (and any family relationship), the lawyer may not initiate such contact, including to disseminate information about plan benefits.

Q: Can the lawyer at least write to plan purchasers about the plan?

A: The committee said RPC 7.3(b) permits written communication of this type directed at plan purchasers so long as they have not manifested a desire not to receive it.

Q: What other rules did the committee say apply to implementing the plan?

A: The committee said the lawyer must comply with RPC 1.2(c) (consultation before limiting scope), RPC 1.7(b) (waiver of conflicts as to the plan seller), RPC 1.8(a) and/or 1.7(b) (business transactions with clients selecting non-plan counsel), RPC 1.8(f) (accepting fees from someone other than the client), and RPC 7.1(a) (misleading statements about a lawyer's services in the membership contract).

Background and rules framework

The opinion applies Washington RPC 7.3 (direct contact with prospective clients; Model Rule 7.3) to the contact question, and flags RPC 1.2 (scope of representation; Model Rule 1.2), RPC 1.7 (conflicts of interest; Model Rule 1.7), RPC 1.8 (specific conflicts, including third-party payment; Model Rule 1.8), and RPC 7.1 (communications about a lawyer's services; Model Rule 7.1) for plan implementation. The committee noted that whether an attorney-client relationship exists is a mixed question of law and fact (citing Bohn v. Cody) and declined to opine on substantive law. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2 / Washington RPC 1.2(c) (consultation before limiting scope of representation)
• Model Rule 1.7 / Washington RPC 1.7(b) (waiver of conflicts of interest)
• Model Rule 1.8 / Washington RPC 1.8(a), 1.8(f) (business transactions with clients; third-party fee payment)
• Model Rule 7.1 / Washington RPC 7.1(a) (misleading statements about a lawyer's services)
• Model Rule 7.3 / Washington RPC 7.3(a), 7.3(b) (in-person, telephone, and written contact with prospective clients)

Cases:

• Bohn v. Cody, 119 Wn.2d 357, 832 P.2d 71 (Wash. 1992), existence of an attorney-client relationship is a mixed question of law and fact that may turn on the client's reasonable subjective belief.

See also

• Alabama Ethics Op. 1999-04: Conflict Where a Firm Sells a Prepaid Legal Plan
• WSBA Ethics Op. 1979: Referral-Service Lawyer Initiating Contact
• WSBA Ethics Op. 1475: Solicitation by Written and Telephone Contact
• WSBA Ethics Op. 1933: Confidentiality of a Prospective Client's Phone Call

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1228

Original opinion text

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

Advisory Opinion: 1978
Year Issued: 2002
RPC(s): RPCs 1.7(a), 1.7(b), 1.8(a), 1.8(f), 7.3(b)
Subject: pre-paid legal services plan, attorney-client relationship, contact with prospective clients

The inquirer serves as the Washington State service provider of a for-profit prepaid legal services plan. The inquirer has written to ask the opinion of the Rules of Professional Conduct Committee on:

1. The point in time in the implementation of the legal services plan at which the attorney-client relationship is formed. The purchase of the plan by a consumer, the first call to the inquirer by a plan purchaser, and the conclusion of a fee agreement with the inquirer by a plan purchaser are all suggested by the inquirer as alternatives; and

2. Whether it is permissible under the Rules of Professional Conduct for the inquirer to initiate contact with a plan purchaser to inform her or him of plan benefits and, if so, what limitations are placed on the method of such contact.

The Rules of Professional Conduct must be complied with in all stages of the implementation of a for-profit prepaid legal services plan. Based on its review of the plan agreements, the Committee believes that they present numerous contract and other substantive law questions materially affecting their legal interpretation. Their resolution is outside the purview of the Committee, but is not without ethical implications related to the inquiry. As a result, the Committee must emphasize that when forming attorney client-relationships in the implementation of the prepaid legal services plan in issue the inquirer must comply with Rule 1.2(c) regarding the requirement of consultation before limiting the scope of representation, Rule 1.7(b) regarding the requirements for waiver of potential conflicts of interest (with respect to the seller of the prepaid legal services plan), Rule 1.8(a) and/or 1.7(b) regarding business transactions with clients selecting non-plan counsel, Rule 1.8(f) regarding acceptance of fee payment from a party other than the client, and Rule 7.1(a) regarding the making in the membership contract of misleading statements concerning a lawyer`s services.

With more specific regard to the first portion of the inquiry, the threshold determination of whether an attorney-client relationship exists is a mixed question of law and fact which may turn on the subjective belief of the client based on reasonable facts. See Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992). The committee does not opine on substantive law. However, for the purposes of answering the second portion of the inquiry, it should be stated that after the purchase of the plan and prior to the plan purchaser seeking advice from the inquirer, the existence of an attorney-client relationship is unlikely because the subscribers must contact the lawyer to establish the relationship. This is the case even where the agreement for the purchase of the plan has not expressly required the conclusion of a separate representation agreement prior to legal services being provided under the plan.

With regard to the second portion of the inquiry, Rule 7.3(a) of the Rules of Professional Conduct makes it clear that only where an attorney-client relationship currently exists or has previously existed may the inquirer contact a plan purchaser in person or by the telephone (assuming no family relationship) to discuss the inquirer’s provision of legal services. This prohibition includes the dissemination of information on or invitations to exercise benefits under the for-profit prepaid legal services plan in the inquiry. Rule 7.3(b) permits written communication of this type to be directed at plan purchasers, so long as they have not manifested a desire not to receive it. The committee does not address other ethical issues which may be raised by participation in the prepaid legal services plan beyond those in the inquiry.