Professor Alberto Bernabe often appears on this blog’s #fiveforfriday Honor Roll. He also has his own blog and, last week, blogged on an advisory from the DC Bar. The opinion addresses the ethics issues that arise when a lawyer’s client crowdfunds legal fees.
I’ve also blogged on the topic. I did so here in response to an advisory opinion from the Philadelphia Bar Association. I wrote:
- “That’s why the Philly opinion is great. It doesn’t treat ‘crowdfunding platforms’ as new creatures that require new rules. Rather, it reminds lawyers that the rules that apply when using a crowdfunding platform are the same rules that apply to any other representation.”
As Professor Bernabe notes, the DC Bar opinion is consistent with the Philadelphia opinion and others on crowdfunding.
I like the following statement from the DC Bar:
- “It is not unusual for clients to rely on money collected from family or friends to pay for legal services.”
Indeed, many Vermont lawyers accept payment from someone other than the client. The most common situation? A parent pays for a child’s lawyer in a criminal or family case.
When that happens, it’s critical for the lawyer to remember Rule 1.8(f):
- “A lawyer shall not accept compensation for representing a client from one other than the client unless (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to the representation of a client is protected as required by Rule 1.6.”
In other words, even if Parents are paying Lawyer to represent Child, they don’t get to direct the representation and, absent Child’s consent, Lawyer cannot disclose information relating to the representation to them.
Somewhat related, the DC Bar included a great tip in Ethics Opinion 375:
- “A lawyer should consider counseling his or her client regarding disclosures to third parties. Crowdfunding typically entails some level of disclosure to third parties about the predicate need for counsel. Because of their financial support, crowdfunding contributors may be interested in the status of or information about the client’s matter. Due to the risk of waiver of the attorney-client privilege, or simply for strategic reasons, a lawyer who knows that a client is crowdfunding should provide the appropriate level of guidance to the client regarding disclosures to third parties, whether such disclosures occur on a social media platform or privately in discussions with friends and family.”
In sum, nothing about using a social media platform to crowdfund legal fees is inherently unethical. Oh, and as mentioned in both the Philadelphia and D.C. advisory opinions: crowdfunding helps provide access to legal services to those who otherwise might not be able to afford a lawyer.
- (Bernabe) DC Ethics Committee new opinion on crowdfunding
- (Bernabe) Is it ethical to use “crowdfunding” to finance the practice of law?
- (Kennedy) Crowdfunding: The More Things Change . . .
- DC Bar Ethics Opinion 375
- Philadelphia Bar Association Opinion 2015-06