When a private attorney is hired as a special assistant attorney general to pursue L&I's third-party claim, is the injured worker also the attorney's client?

Plain-English summary

A worker injured by a third party's negligence received $50,000 in workers' compensation benefits from L&I, then signed a Third Party Election Form under RCW 51.24.050 giving L&I the right to take legal action against the third party. L&I hired a private attorney as a special assistant attorney general (SAAG) under RCW 51.24.110 to pursue the third-party claim, under an agreement stating that L&I is the client and that the attorney must act in the best interest of the Department. The committee answered two questions about who the SAAG's client is.

First, may the SAAG pursue pain-and-suffering damages for the injured worker without L&I's consent? No. The committee held the agreement is explicit that L&I, not the worker, is the sole client, and the worker assigned all claims for economic and non-economic damages to L&I. As the owner of those claims, L&I's consent is an ethical prerequisite to the SAAG representing the worker for pain-and-suffering, and any recovery is distributed under RCW 51.24.060. The committee cited Tobin and Carrera, noting the assignment puts L&I "in the shoes of the injured worker" for making the claim and does not create an attorney-client relationship with the worker. In representing L&I, the lawyer must follow RPC 1.4's duties to keep the client informed.

Second, must the SAAG obtain the worker's consent because of a significant risk that representing L&I is directly adverse to the worker? No. The committee held that because no attorney-client relationship exists with the worker, RPC 1.7's conflict rules do not apply; L&I may assert the worker's non-economic claim, and the worker has given up the right to act. The committee grounded the client's control over objectives and settlement in RPC 1.2(a). It limited its analysis to the typical written agreement, noting that whether a particular attorney-client relationship exists, or whether other duties to a worker could materially limit the L&I representation, are fact-specific or legal questions beyond its purview. The committee emphasized that in dealing with the worker the attorney must follow RPC 4.3: not implying disinterest, correcting any misunderstanding of the lawyer's role, and not giving the worker legal advice beyond advising the worker to get counsel where interests may conflict.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee held that the SAAG's only client under the standard L&I agreement is the Department, because the worker assigned the third-party claim to L&I, so the SAAG cannot pursue the worker's pain-and-suffering claim without L&I's consent and has no RPC 1.7 conflict to manage with the worker. The opinion holds the lawyer owes L&I the RPC 1.4 communication duties and RPC 1.2(a) deference on objectives and settlement, and must treat the worker as an unrepresented person under RPC 4.3. The committee expressly limited its conclusion to the typical written agreement and flagged that a different agreement or facts could change the analysis.

Common questions

Q: When a SAAG pursues L&I's third-party claim, is the injured worker a client?

A: No. The committee held that under the standard agreement L&I is the sole client; the worker assigned the claim to L&I and the assignment does not create an attorney-client relationship with the worker.

Q: Can the SAAG pursue the worker's pain-and-suffering claim?

A: Only with L&I's consent. The committee held that because the worker assigned all economic and non-economic claims to L&I, L&I's consent is an ethical prerequisite to representing the worker for pain-and-suffering, with recovery distributed under RCW 51.24.060.

Q: Does the SAAG have a conflict of interest with the injured worker?

A: No. The committee held that because there is no attorney-client relationship with the worker, RPC 1.7's conflict rules do not apply to the SAAG's representation of L&I.

Q: How must the SAAG deal with the injured worker?

A: Under RPC 4.3. The committee held the attorney must not imply disinterest, must correct any misunderstanding of the lawyer's role, and must not give the worker legal advice other than to secure counsel where the worker's interests may conflict with L&I's.

Background and rules framework

The opinion interprets Washington RPC 1.4 (Model Rule 1.4, communication with the client), RPC 1.7 (Model Rule 1.7, conflicts of interest, held inapplicable for want of an attorney-client relationship with the worker), RPC 1.2(a) (Model Rule 1.2(a), the client's authority over objectives and settlement), and RPC 4.3 (Model Rule 4.3, dealing with an unrepresented person). The statutory backdrop is Washington's Industrial Insurance Act, RCW 51.24 (including RCW 51.24.050, .060, and .110), under which the worker assigns the third-party claim to L&I.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.4 / Washington RPC 1.4 (keeping the client informed)
• Model Rule 1.7 / Washington RPC 1.7 (conflicts of interest)
• Model Rule 1.2(a) / Washington RPC 1.2(a) (client's authority over objectives and settlement)
• Model Rule 4.3 / Washington RPC 4.3 (dealing with an unrepresented person)

Statutes:

• RCW 51.24 (Industrial Insurance Act third-party actions), including RCW 51.24.050, .060, .110

Cases:

• Tobin v. Dep't of Labor & Indus., 169 Wn.2d 396 (2010); Carrera v. Olmstead, 189 Wn.2d 297 (2017), the assignment puts L&I in the worker's shoes
• Burnett v. Dep't of Corrections, 187 Wn. App. 159 (2015)

See also

• WA Ethics Op. 201803: communication with a represented government employee
• ABA Formal Op. 97-408: communication with a represented government agency
• ABA Formal Op. 514: advising an organization on constituent legal risk

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1692

Original opinion text

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

Advisory Opinion: 201902
Year Issued: 2019
RPC(s): RPC 1.4, 1.7, 4.3
Subject: Special Assistant Attorney General (SAAG) Representing Government Department in Claim Against Third Party

Facts:

A person is injured during the course of employment by the negligence of a third party. The injured worker files for and receives worker’s compensation benefits. Eventually, the claim is closed after L&I pays all medical bills, lost wages, and permanent partial disability benefits, totaling $50,000.00. Under the Washington Industrial Insurance Act, RCW 51.24, covered workers are compensated for on-the-job injuries, without regard to fault, and participating employers are generally immune to lawsuits seeking additional compensation. However, responsible third parties may be liable to the injured worker and to L&I for compensation paid from the industrial insurance fund. RCW 51.24.030.

The injured worker signs a Third Party Election Form pursuant to RCW 51.24.050, which states:

I give up my right to take legal action against the third party to recover damages, both economic and non-economic, on my own or with an attorney. I give this right to L&I, and I understand that L&I may choose not to take legal action. . . .

L&I hires a private attorney, per RCW 51.24.110, to be a SAAG to pursue the third party claim, pursuant to an agreement which states:

Attorney-Client Relationship. For the claims/actions pursued under this agreement, L&I is the client and is afforded such rights as are attendant on an attorney-client relationship.

As a SAAG, the attorney shall abide by all terms of this contract and act in the best interest of its client, which is the Department, at all times. In the event any potential conflict of interest arises, e.g., the injured worker asserts an attorney-client relationship, etc., the attorney must notify the Department in writing of the existence and nature of the potential conflict within 20 calendar days.

Issue and Analysis:

The committee received an inquiry with the following questions:

1. When an attorney is contracted as a special assistant attorney general pursuant to RCW 51.24.110, may the contracted attorney ethically pursue damages for pain and suffering on behalf of the injured worker without the consent of L&I?

Answer: No. The terms of the agreement are explicit that L&I, not the injured worker, is the sole client. The worker has assigned to the client, L&I, all claims for economic and non-economic damages. As the owner of such claims, the consent of L&I is an ethical prerequisite to representing the injured worker to recover damages for pain and suffering, and any recovery is to be distributed per RCW 51.24.060. Tobin v. Dep’t of Labor & Indus., 169 Wn. 2d 396 (2010), Carrera v. Olmstead, 189 Wn. 2d 297 (2017). The Carrera court stated the “assignment puts L&I in the shoes of the injured worker . . .” for the purpose of making a claim and does not create any attorney-client relationship with the worker.

In representing the client, the lawyer must be guided by RPC 1.4, which provides:

(a) A lawyer shall:

(1) promptly inform the client of any decision of circumstance with respect to which the client's informed consent, . . . is required . . .;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) . . . .

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

2. Is the contracted attorney ethically obligated to obtain the consent of the injured worker due to the significant risk that the contracted attorney’s representation of L&I may be directly adverse to the injured worker?

Answer: No. An attorney-client relationship does not exist with the worker. L&I may assert, on behalf of the worker, a claim for non-economic damages. The worker has given up the right to take legal action. Since there is no attorney-client relationship, RPC 1.7, dealing with conflicts of interest, is inapplicable. Burnett v. Dept. of Corrections, 187 Wn.App. 159, 349 P.42 (2015).

RPC 1.2 provides:

(a) . . . [A] lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by RPC 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. . . .

Comment [1] to RPC 1.2 provides:

[1] [Washington revision] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. The decisions specified in paragraph (a), such as whether to settle a civil matter, must also be made by the client. . . .

The committee has based its analysis on the typical written agreement between L&I and the SAAG. Examination of the scope of any particular alleged attorney-client relationship would be a fact-specific analysis or require a legal analysis that is beyond the purview of the committee. Similarly, examination of other duties and responsibilities to a specific injured worker that could materially limit the representation of L&I in a particular situation would be a fact-specific analysis or require a legal analysis that is beyond the purview of the committee.

In dealing with the injured worker, the attorney must be mindful of RPC 4.3, which provides:

In dealing on behalf of a client with a person who is not represented by a lawyer, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure the services of another legal practitioner, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Comment

[1] [Washington revision] An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client. In order to avoid a misunderstanding, a lawyer will typically need to identify the lawyer's client and, where necessary, explain that the client has interests opposed to those of the unrepresented person. . . .