August 19, 2021

Washington State-Licensed Lawyers Take Note: Get Insurance or Start Making Disclosures

Holland & Knight Alert
Nellie Q. Barnard | Dayna E. Underhill

Beginning Sept. 1, 2021, all licensed lawyers in the state of Washington, with only limited exceptions, will be required to disclose to clients and obtain informed consent confirmed in writing if they do not have malpractice insurance coverage of at least $100,000 per occurrence and $300,000 in the aggregate.

The Washington Supreme Court approved the amendment to Washington Rule of Professional Conduct (RPC) 1.4 in June 2021, adding subpart (c), which contains onerous requirements for those who do not carry the minimum malpractice insurance, including the following:

  • disclosure to clients in writing before or at the commencement of the representation
  • obtain the client's written informed consent
  • maintain a record of notices of client disclosure and the signed client consents and acknowledgments received for at least six years after the representation is terminated
  • obtain written consent to continue the representation or obtain a new policy if a lawyer learns (or reasonably should know) of a malpractice insurance policy lapse or termination

The new rule applies to all lawyers with an active Washington State Bar Association (WSBA) status, emeritus pro bono status and lawyers permitted to engage in limited practice under Admission and Practice Rule (g). The last point is particularly important because it means that visiting lawyers, and any other lawyers authorized by the Washington Supreme Court to practice law, are subject to RPC 1.4(c) unless they fall within its enumerated exemptions, which include:

  • judges, arbitrators and mediators not otherwise engaged in the practice of law
  • in-house counsel for a single entity
  • government lawyers practicing in that capacity
  • employee lawyers of nonprofit legal services organizations, or volunteer lawyers, where the nonprofit entity provides malpractice insurance coverage at the minimum levels

The new rule also contains suggested language for both the lawyer's disclosure and the client's consent that meets the requirements of the rule.

For questions about how the new rule applies to your practice, consult the Washington Supreme Court order, visit the WSBA's website, or contact the authors of this alert or other ethics counsel.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.

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