Blogger’s Note: many thanks to Tom Little for sending me the Ohio advisory opinion that is referenced below and that served as the impetus for this post.
My sense is that not many Vermont lawyers or law firms often handle cryptocurrency. Doing so is likely to become more common, especially for lawyers and firms whose clients regularly use cryptocurrency to conduct transactions. Thus, it makes sense to highlight the professional responsibility issues most likely to arise.
Caveat: I don’t understand even the basics of cryptocurrency. So, here, I’m not going to try to explain what it is or how it works. Rather, I will limit this post to sharing guidance that others have provided. Namely, via the following advisory ethics opinions:
- Nebraska Advisory Ethics Opinion for Lawyers No. 17-03 (Sept. 2017)
- C. Bar Ethics Opinion 378 (June 2020)
- Ohio Board of Professional Conduct Opinion 2022-07 (August 2022)
The opinions discuss three distinct situations in which a client or third party might ask to transfer cryptocurrency to a lawyer or law firm:
- to pay for legal services that have already been rendered.
- as an advance against legal services that will be provided in the future.
- to hold in escrow pending future use by the client.[i]
For me, the opinions lend themselves to a single overarching takeaway.[ii]
On this blog and at CLEs, I’ve long argued that new things don’t necessarily require us to rewrite the Rules of Professional Conduct.
- No matter the mode of communication, the duty is to employ reasonable precautions against unauthorized access to or inadvertent disclosure of client information
- Whether using a file cabinet, the storage facility on Town Line Road, or the cloud, the duty is to take reasonable precautions to safeguard client property.
- Yes, social media has provided new ways for lawyers to get caught. It has not, however, created or caused the underlying misconduct that has always been a violation of the rules, but is more readily apparent when done in a public medium.
That’s why a section of the D.C. opinion resonates with me:
“We do not perceive any basis in the Rules of Professional Conduct for treating cryptocurrency as a uniquely unethical form of payment. Cryptocurrency is, ultimately, simply a relatively new means of transferring economic value, and the Rules are flexible enough to provide for the protection of clients’ interests and property without rejecting advances in technologies.”
In other words, just because something is new doesn’t mean it’s unethical.
Rather, take the “tech” out of it and look to fundamental principles that have long been part of the foundation upon which the Rules were constructed:
- legal fees must not be unreasonable,
- client property must be safeguarded,
- risks associated with the representation must be explained to the client,
- no matter who pays, a client’s confidences must be protected, and a lawyer’s independent judgment must not be compromised, and,
- business transactions with a client must be transparent and fair.[iii]
With these principles in mind, I should stop. If I don’t, my second post in 2 months would go on so long that readers would wish I’d taken a permanent vacation from blogging.
Alas, I’d be remiss not to mention the following points, each of which is made in both the Nebraska and D.C. opinions.
- Cryptocurrency is not fiat currency. It is property and must be treated as such.
- Before a lawyer or firm agrees to accept cryptocurrency as an advance fee, the lawyer or firm better know how to hold it safely.
- V.R.Pr.C. 1.5 prohibits unreasonable fees. Comment  states that while a lawyer may accept property as payment of a fee, “a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a),” the rule that governs business transactions with a client.
- Indeed, the D.C. opinion concludes that Rule 1.8(a), which governs business transactions with a client, applies when (a) a client transfers cryptocurrency against which the lawyer will bill for legal services in the future; and (b) a client and lawyer agree to an ongoing relationship in which the lawyer will provide legal services in exchange for X amount of cryptocurrency per month.
Now I’ll stop. For real. For more, check out the opinions or give me a call.
As always, let’s be careful out there.
[i] The Nebraska and D.C. opinions focus on the first two, while the Ohio opinion addresses the third.
[ii] My takeaway is not a substitute for reading the opinions themselves and may not be the same takeaway made by Disciplinary Counsel’s, a PRB hearing panel, or the Vermont Supreme Court.
[iii] In order, Rule 1.5, Rule 1.15, Rule 1.4, 1.6, and Rule 1.8.