In September 2021, the Washington Supreme Court adopted amendments to RPC 1.4, which now require disclosure regarding minimum malpractice insurance levels. With some exceptions, this new requirement applies to all practicing attorneys and has generated many questions.
At the WSBA Ethics Line, for example, we have received numerous calls from attorneys asking questions like, “Do I have to comply if I have just one corporate client?” or “Does this apply to my existing clients, or only new ones?” Fortunately, a newly issued advisory opinion (Advisory Opinion 202202) provides answers to most of these types of questions. (Note that this opinion is advisory; other professionals or courts may come to different conclusions. You can find this and other resources on the WSBA Ethics in Practice page.)
Keep in mind that RPC 1.4 is a communication rule, and the amendment requires disclosure—it does not require insurance. I’ve received calls from lawyers asking if they have to get insurance in certain situations; however, the rule doesn’t require insurance. It requires disclosing to clients, in writing, if you don’t have minimum levels of malpractice insurance, and getting the client’s written, informed consent. If informed consent is not received, the lawyer must withdraw from representation. (See RPC 1.4, Comment 12.) RPC 1.4 also provides a sample notice form, discusses record keeping, and explains who is not covered by this communication requirement.
Another common question is whether the amendment applies retroactively to existing clients, or to new clients only. As of the effective date of the amendment (Sept. 1, 2021), lawyers to whom the rule applies must provide the required disclosure to all new clients. The Committee on Professional Ethics clarifies that the rule only applies to new clients, since on its face RPC 1.4(c) requires an attorney to notify a client “before or at the time of commencing representation … .” If a policy lapses or is terminated during the representation, then the duties set forth in RPC 1.4(c)(1) will apply.
The opinion addresses several other common questions, such as whether the rule applies if a lawyer or law firm is self-insured at the minimum levels, is only providing nonlegal services, or does not represent any clients within Washington state. Of course, the best way to understand how this new amendment applies to you is to read the opinion and see for yourself.