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UNLESS THE BAR ASSOCIATION SPECIFICALLY APPROVES AND PARTICIPATES
IN SUCH A PLAN, THE PAYMENT OF ATTORNEY'S FEES BY MEANS OF ANY CREDIT
CARD OR PAYMENT METHOD, IS NOT PERMISSIBLE.
CODE
PROVISIONS INTERPRETED:
Canon
8: A lawyer should assist in improving the
legal system.
Canon
9: A lawyer should avoid even the appearance
of professional impropriety.
QUESTION
PRESENTED
Whether
or not there is any ethical prohibition against a lawyer having
his fee paid by means of the clients' Master Charge, BankAmericard
or other similar type of credit card?
DISCUSSION
All
accepted or approved commercial practices are not necessarily acceptable
from the ethical point of view, insofar as the Code of Professional
Responsibility is concerned. Therefore, the mere fact that the use
of these credit cards is now almost universally accepted otherwise,
it does not necessarily follow that there would be no ethical prohibition
against a lawyer having his fee paid by this means.
For
instance, it is not professionally proper for a lawyer to send out
bills for payment of fees for professional services with the statement
thereon that a discount will be allowed for prompt payment (Opinion
151, Committee on Professional Ethics and Grievances of the American
Bar Association). Although that Opinion was rendered in 1936, the
principle announced therein was reaffirmed in Informal Decision
No. C-741 of the Standing Committee on Profession Ethics, issued
in 1964. This principle was based on the old Canon 12, which stated:
"In fixing fees, it should never be forgotten that the profession
is a branch of the administration of justice and not a mere money
getting trade." Opinion 151 states: "Although the giving
of discounts may be an entirely sound and proper practice in business,
we do not think it is suited to the legal profession. Business transactions
are frankly impersonal and commercial in character. On the other
hand, the professional relationship between an attorney and his
client is highly personal, involving an intimate appreciation of
each individual client's particular problem. Practices which overlook
the personal element in the attorney's relationship with his client
and which tend toward an undue commercial emphasis are to be condemned."
A second reason set forth is the fact that an attorney's fee is
an individual matter, "that in fixing fees a lawyer should
take into consideration all of the circumstances surrounding each
individual case", apparently meaning that charging an attorney's
fee is something entirely different from, for instance, of buying
groceries.
The
use of data processing, something now used extensively in commercial
practice, is not permissible for a law firm. (Informal Opinion No.
912 _ 2/24/1966). This is based on the principle that it is the
duty of a lawyer to preserve his client's confidences.
It seems
that, as far as one may go, is to accept a note or security from
his client for his fare. (Informal Decision No. 593 _ 10/25/1962).
Drinker, in his LEGAL ETHICS (Page 171) states: "He may take
a conveyance to secure his fee, despite Canon 10". Wise, in
his LEGAL ETHICS (Page 232), in 1970, reaffirmed that "An A.B.A.
opinion held it improper for a lawyer to send out bills for professional
fees offering a discount for prompt payment". However, a client
may borrow money from a bank and then, make payment of his fee to
the lawyer. Wise, in his Legal Ethics, (Pages 234 to 235) discusses
"Legal Fee Financing Plans". He does not touch on credit
cards but it seems that before credit financing is permissible,
it must be approved and under the control of the Bar Association.
He states, in part, "These plans must be restricted in a number
of ways before a lawyer can ethically participate in them. There
must be bar association sponsorship, with a clear, written agreement
between the association and the bank. The attorney wishing to participate
must also sign an agreement with the bank. The bank investigates
the client's credit and, if satisfactory, lends the required amount,
less a discount, in exchange for the client's note". He points
out that "The canons are involved in many ways" and describes
what may or may not be done in these cases. He states "The
plan does not stir up litigation. If properly conducted by a bar
association, the plan is not so commercial as to be contrary to
the honor and dignity of the profession. *** If formulated and carried
out with strict observance of the Canons, a plan for financing legal
fees is not unethical".
Of course,
it is recognized that none of the foregoing statements is strictly
in point but they do indicate that the payment of fees is something
outside the pale of a mere commercial transaction. No doubt, the
use of credit cards to pay legal fees smacks of commercialism; also,
there is the possibility that "easy credit" might conceivably
stir up frivolous litigation.
Therefore,
where some question as to the propriety of using credit cards to
pay for legal fees, is involved, Canon 9 (Avoiding even the appearance
of professional impropriety) would seem to apply; and if the honor
and dignity of the profession are at stake, certainly, Canon 8 (For
improving the legal system) would be applicable.
CONCLUSION
The
payment of attorney's fees by means of credit cards is not permissible,
unless the Bar Association somehow specifically approves and participates
in the plans therefor.
72-10
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