Formal Opinion 140.
(1969)
Expenses of Litigation

An opinion has been requested concerning the ethical responsibility of an attorney who engages the services of another attorney, or is engaged by another attorney, or who, in connection with litigation retains the services of an accountant, physician, court reporter, investigator, title insurance company, etc., so far as concerns payment by the attorney for witness fees and other services rendered.

Clearly the attorney may not agree to pay such expenses upon behalf of his client without an agreement by the client to reimburse such advances so made. On the other hand an attorney may, subject to the right of reimbursement from the client and the duty of the client to reimburse, advance expenses of litigation, Canon 42.

However, when the attorney has directly and personally ordered or arranged for services in circumstances under which he, the attorney, did not make it clear (if such were his intent) to the person rendering the services that such person must look to the client alone for payment, the attorney has been derelict in his responsibility of preserving a good public image of the legal profession. The primary responsibility of making it clear that the attorney acts in an agency capacity with no personal liability rests upon the attorney. If he has been derelict herein, others may reasonably be misled into believing that the attorney is agreeing to pay or to guarantee the payment of the obligation so created. In this circumstance it would be the ethical obligation of the attorney to pay such indebtedness and then look to his client for reimbursement and assume the risk of nonpayment.

Similarly, when arrangements are made whereby one attorney will become associated with and assists another attorney, in connection with litigation, both of the attorneys should make abundantly clear their respective financial arrangements and the responsibility of the respective attorneys so far as concerns such expenses of litigation to be incurred. It should be made very clear to the client that he, the client, will ultimately be called upon to bear such costs and expenses and the attorneys should endeavor to procure from the client authorization to pay or reimburse the same out of proceeds of the client coming into the control of the attorney.

Public trust and confidence would be greatly endangered and jeopardized by the assertion of a technical defense of "disclosed agency," even if the same be a valid defense.

[See Christenson v. Dept. of Revenues, 97 Wn.2d 764, 649 P.2d 839 (1982)]