When a third party pays a client's legal fees, can the lawyer send the payer an itemized bill of the work performed?

Plain-English summary

The inquirer asked whether, when a third party pays a client's fees and costs and requires a "normal itemization" of services performed to justify payment, the lawyer violates the ethics rules by providing that itemization to the third-party payer. The committee said a lawyer whose fee is paid by someone other than the client has the same obligations as counsel paid directly by the client.

The committee concluded that such a lawyer may ethically submit a billing statement to the person or entity paying the bill, provided the statement does not: (1) require disclosure of the client's confidential or secret information without the client's consent; (2) interfere with the lawyer's independent professional judgment or with the attorney-client relationship; or (3) direct or regulate the lawyer's independent professional judgment in rendering legal services. Although "normal itemization" is undefined, the committee said an itemization using broad, nonspecific terms void of client confidences or secrets will not violate RPC 1.6 or 1.8.

The committee suggested that a review of CrR 4.7 may assist the lawyer in resisting discovery of work product that may contain client confidences, and noted the lawyer may refer to RPC 1.7, 1.8, and 5.4 in addressing the duties and responsibilities that arise when a third party pays the fee.

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. 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 Treat this page as historical context, not current guidance.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 third-party-funded representation as carrying the same duties as client-funded representation, and permitted billing the payer so long as the statement protects client confidences, preserves the lawyer's independent judgment, and keeps the payer from controlling the representation. The committee tied a compliant "itemization" to broad, nonspecific descriptions that omit confidences or secrets, and pointed to CrR 4.7 as relevant if the lawyer needs to resist discovery of work product.

Common questions

Q: Can a lawyer send an itemized bill to whoever is paying the client's fees?

A: The committee concluded the lawyer may submit a billing statement to a third-party payer, provided it does not disclose the client's confidences or secrets without consent, interfere with the lawyer's independent judgment or the attorney-client relationship, or let the payer direct the lawyer's judgment.

Q: What does a permissible "normal itemization" look like?

A: The committee said the phrase is undefined, but an itemization that uses broad, nonspecific terms free of client confidences or secrets will not violate RPC 1.6 or 1.8.

Q: Does paying the fee give the third party any control over the case?

A: No. The committee said the billing statement (and the arrangement) must not interfere with the lawyer's independent professional judgment or the attorney-client relationship, or direct or regulate the lawyer's judgment, and it pointed to RPC 1.7, 1.8, and 5.4 on the duties that arise when a third party pays.

Q: What if the payer's itemization request would expose protected work product?

A: The committee suggested that a review of CrR 4.7 may assist the lawyer in resisting discovery of work product that may contain client confidences.

Background and rules framework

The opinion applies Washington RPC 1.6 (confidentiality; corresponding to Model Rule 1.6) and RPC 1.8 (specific conflicts, including third-party payment of fees; corresponding to Model Rule 1.8), and refers to RPC 1.7 (conflicts of interest; Model Rule 1.7) and RPC 5.4 (professional independence; Model Rule 5.4) for the duties that arise when a third party pays the fee. It also points to Washington Criminal Rule (CrR) 4.7 on discovery as relevant to protecting work product. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information)
• Model Rule 1.8 / Washington RPC 1.8 (third-party payment of fees; specific conflicts)
• Model Rule 1.7 / Washington RPC 1.7 (conflict of interest)
• Model Rule 5.4 / Washington RPC 5.4 (professional independence of a lawyer)

Court rules:

• Washington Criminal Rule (CrR) 4.7 (discovery), noted as potentially assisting a lawyer in resisting discovery of work product containing client confidences.

See also

• WSBA Ethics Op. 1014: Third-Party Payment by a Parent for a Child's Lawyer
• WSBA Ethics Op. 1693: Third-Party Fee Payment and an Insurance-Agent Referral
• WSBA Ethics Op. 1396: Lawyer Employed by an Insurance Company, Conflicts

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1243

Original opinion text

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

Advisory Opinion: 1999
Year Issued: 2002
RPC(s): RPCs 1.6, 1.7, 1.8, 5.4, CrR 4.7
Subject: fees paid by third party, client confidences

The inquirer asks the following question: Where fees and costs are paid on behalf of a client by a third party and justification for payment is required by submitting to the third party a normal itemization of services performed does the lawyer violate the ethical rules by providing to the third party payer the itemization?

The committee opined that a lawyer, whose fee is paid by one other than the client, has the same obligations as counsel paid directly by the client. A lawyer whose professional services are paid by a third party can ethically submit a billing statement to the person or entity paying the bill, provided the billing statement does not: (1) require disclosure of confidential or secret information of the client, without the client’s consent; (2) interfere with the lawyer’s independent professional judgment or with the attorney-client relationship; or (3) direct or regulate the lawyer’s independent professional judgment in rendering legal services to the client. Although the phrase “normal itemization” is not defined, if the itemization includes broad nonspecific terms void of client confidences or secrets it will not violate RPC 1.6 or 1.8. The committee suggests that a review of CrR 4.7 may assist the lawyer in resisting discovery of work product that may contain client confidences. Finally, the inquirer may refer to RPC 1.7, 1.8 and 5.4 in addressing the duties and responsibilities of a lawyer when a third party pays the fee.