Are you “assisting” in the unauthorized practice of law when the opposing party appears to be represented by a person without a law license? Many lawyers have called the ethics line asking this question. The unauthorized practice of law (UPL) remains an increasingly complex and evolving challenge in modern legal practice—particularly in matters that cross state lines or involve unlicensed professionals.
Newly published Advisory Opinion 202602 offers helpful guidance for Washington lawyers navigating situations where an opposing party is represented by someone who may not be authorized to practice law in Washington. The opinion clarifies when a lawyer’s conduct may constitute “assisting” UPL under RPC 5.5(a) and RPC 8.4(a), while also highlighting related ethical risks that practitioners should be prepared to manage.
At its core, the opinion affirms that a Washington lawyer does not violate RPC 5.5(a) or RPC 8.4(a) merely by continuing to represent a client when they know—or believe—that the opposing party is represented by someone engaged in UPL. Representation of one’s own client, standing alone, is not “assistance.” The rules require actual knowledge of UPL before the conduct can even be evaluated—and even then, some affirmative step contributing to UPL is required. Passive knowledge, without more, does not constitute ethical misconduct.
However, the analysis does not end there. The Advisory Opinion underscores several key duties that still attach once a lawyer becomes aware of potential UPL by an opposing representative.
- First, the lawyer must communicate with their own client. Under RPC 1.1 and RPC 1.4, competent representation and thorough communication require advising the client when the opposing side’s representative may be engaged in UPL. This information could materially affect a client’s decisions or strategic posture, and the lawyer’s failure to advise could itself raise ethical concerns regarding the lawyer’s duties of competency or diligence.
- Second, lawyers must understand the challenge of determining “knowledge.” Many situations involving multijurisdictional practice, federal preemption, or overlapping roles of other licensed professionals create significant ambiguity. A lawyer may suspect UPL but lack the actual knowledge required to trigger RPC 5.5(a) or 8.4(a). The opinion acknowledges this complexity while making clear that only true, demonstrable knowledge triggers further analysis.
- Third, even when a lawyer knows of UPL by the opposing representative, they are not necessarily “assisting” in that conduct. Assistance requires an affirmative act—something that facilitates, legitimizes, or collaborates with UPL. Examples include lending one’s name to non-lawyer work, failing to supervise non-lawyer staff, or partnering with disbarred or unlicensed practitioners. Simply proceeding with representation is insufficient to constitute assistance.
- Finally, lawyers must remain mindful of adjacent ethical duties—particularly in litigation. When UPL occurs in a courtroom or tribunal, failing to alert the court may implicate duties of candor under RPC 3.3 or honesty under RPC 4.1 and RPC 8.4. In such cases, silence could be construed as enabling a fraud on the tribunal. Lawyers must also guard against being drawn into schemes that could constitute conspiracy, fraud, or conduct prejudicial to the administration of justice under broader professional responsibility rules.
Overall, Advisory Opinion 202602 reinforces a balanced approach: a lawyer is not responsible for policing the conduct of the opposing party but must safeguard their own ethical obligations with vigilance. Awareness, communication with the client, and careful attention to related duties are key to navigating the risks associated with UPL concerns.
Note: Some material in this publication was generated using Microsoft Copilot and was reviewed for accuracy by the author, a member of the Advancement Department, before publication.
