Trust Account Responsibilities and Retainers Task Force

The Trust Account Responsibilities and Retainers Task Force (TARRTF) was formed by the WSBA Board of Governors in December 2005 after the Board withdrew Formal Ethics Opinion No. 186, which addressed the issue of whether and when fees paid to a lawyer in advance must be deposited into a trust account. The Task Force has been asked to review the issue and make recommendations to the Board with respect to the handling of various types of advance fee arrangements.

SUPREME COURT ADOPTS PROPOSED AMENDMENTS WITH CHANGES

Following publication of the amendments as suggested by the WSBA Board of Governors and a public comment period, on October 28, 2008, the Supreme Court adopted the proposed amendments to RPC 1.5 and RPC 1.15A, though with some significant differences from the version submitted by WSBA and published for comment. The Supreme Court did not adopt proposed paragraph (g), to RPC 1.5, which stated: "A lawyer shall not characterize any fee as 'nonrefundable,' 'minimum,' or 'earned upon receipt.'" The Court did not adopt much of the proposed dispute resolution paragraph (f)(3), which specified the circumstances in which a lawyer would have to place disputed funds from a retainer or a flat fee into a trust account. As adopted, paragraph (f)(3) states, "In the event of a dispute relating to a fee under paragraph (f)(1) or (f)(2) of this Rule, the lawyer shall take reasonable and prompt action to resolve the dispute." Finally, the Court did not adopt proposed comments 17 and 18, which related to the above two provisions.

The amendments will go into effect on November 18, 2008. The complete text of the amendments as adopted is available on the Washington Courts website: www.courts.wa.gov/court_rules/?fa=court_rules.adopted.

TASK FORCE REPORT TO BOARD OF GOVERNORS; SUBMISSION TO THE SUPREME COURT

The Final Report of the Task Force, recommending adoption of amendments to RPC 1.5 and RPC 1.15A, was presented to the Board of Governors for a first reading on July 28, 2007, at the Board's meeting in Quincy, Washington. The Board of Governors subsequently approved the Task Force recommendation at its meeting in Seattle on September 20-21, 2007. Following WSBA submission of the suggested amendments, the Supreme Court published the amendments for public comment in January 2008, with a comment period that expired on April 30, 2008.

TASK FORCE CHARTER

Review all Washington State rules (including RPC 1.5 and RPC 1.15A), ethics opinions (including Proposed Ethics Opinion 198 and Proposed ODC Ethics Opinion regarding flat and nonrefundable fees), statutes and decisional authority that relate, pertain or refer to attorney's fees, and make recommendations to the Board of Governors with respect to the definition, trust account treatment, ethical propriety, accounting practices and applicability to various types of representation of flat fees, nonrefundable fees, advance fee payments and various forms of attorney retainer.

TASK FORCE ROSTER

Mark Johnson, Chair
Randy Beitel
Professor David Boerner
Liza Burke
Marc Christianson
David Heller
Alison Holcomb
Marijean Moschetto
Art Lachman
Jody McCormick
Nancy Pacharzina
Ann Guinn

Intern: Jason Holman

MEETING MINUTES AND INFORMATION

Note: To be as timely as possible, the most recent minutes (designated as "Draft") are usually posted on the website after review by the Task Force Chairperson, but without being reviewed or formally approved by the full Task Force.