道德意见351

与客户分担法律费用

In the particular circumstances presented, the 付款s to clients contemplated by the inquiries below do not violate 规则5.4(a)’s prohibition against sharing legal fees with nonlawyers.

适用的规则

• 规则1.5 (a)(费用)
• 规则1.8(d) (Conflict of Interest: Specific 规则)
• 规则1.15(b)(物业保管)
• 规则5.4(a) (Professional Independence of a Lawyer)

调查

The 法律道德 Committee (“Committee”) has been asked whether two proposed 付款s by lawyers to their clients violate the fee-sharing prohibition of 规则5.D .第4(a)条.C. 《澳博app》(“D.C. 规则”).

场景一:  原告 and Lawyer A have a contingent fee agreement under which Lawyer is to receive one-third of any recovery.¹ 原告获得90美元赔偿,被告达成和解, but Defendant insists that the settlement agreement designate $60,000澳博app费和30美元,作为补偿性损害赔偿. (The 原告’s claim arises under a “fee-shifting” statute that provides for attorney fees.) As contemplated by her agreement with 原告, 澳博appA只希望保留30美元,000 in 澳博app的 fees (one-third) and allocate the other $30,000 (of designated “attorney fees”) to 原告. 原告, 因此, 最后会得到60美元,90美元中的000美元,结算款, as contemplated by the contingent fee agreement made by 原告 and Lawyer A at the beginning of the engagement.

场景二: Pro bono Lawyer B receives attorney fees under a fee-shifting statute and wants to give the awarded fees to his client (“Client”), 谁是个人. Lawyer B has not made an advance commitment to pay Client the attorney fee or any other sum.

讨论

“A lawyer or law firm shall not share legal fees with a nonlawyer.” D.C. 规则5.4(a). One of the five exceptions to this prohibition is relevant to, but not dispositive of, 场景二:

(五)澳博app可以分担澳博app费, whether awarded by a tribunal or received in settlement of a matter, with a nonprofit organization that employed, 保留, or recommended employment of the lawyer in the matter and that qualifies under Section 501(c)(3) of the Internal Revenue Code.

The prohibition is intended “to protect the lawyer’s professional independence of judgment.注释[1]D.C. 规则5.4; 协议 对ABA模型规则的评论[1.4; Restatement of the Law Governing Lawyers § 10, cmt. b(2000)(“重述”). Other authorities have spoken of the need to ensure that the lawyer will control the litigation, the deterrence of solicitation by nonlawyer intermediaries, and the protection of clients from unreasonably high fees. 埃蒙斯，威廉姆斯，米尔斯 & 水蛭v. 加州州立 酒吧， 6 Cal. 应用程序. 3d 565, 573- 74,86 Cal. Rptr. 367, 372 (Ct. 应用程序. 1970); ABA Formal Op. 87-355 (1987); ABA Informal Op. 86-1519 (1986).

A Restatement comment on the prohibition focuses on the situation where the nonlawyer is 题为 to share the lawyer’s fees—a situation that does not obtain in either scenario set out above:

一个人 题为 to share a lawyer’s fees is likely to attempt to influence the lawyer’s activities so as to maximize those fees. That could lead to inadequate legal services. The Section should be construed so as to prevent nonlawyer control over lawyers’ services, not to implement other goals such as preventing new and useful ways of providing legal services or making sure that nonlawyers do not profit indirectly from legal services in circumstances and under arrangements presenting no significant risk of harm to clients or third persons.

重述§10,cmt. B(强调添加). Moreover, this Committee has counseled against an unduly broad reading of 规则5.4(a), D.C. 澳博app公会法律操守课. 233 (1993), and the Virginia 酒吧’s ethics committee has said that “application of 规则5.4(a) must move beyond a literal application of language of the provision to include also consideration of the foundational purpose for that provision.” Va. 法律伦理课. 1783 (2003); 见埃蒙斯，威廉姆斯，米尔斯 & 水蛭， 6 Cal. 应用程序. 3d在575,86州. Rptr. at 373 (focusing on “policy objectives” of the rule).

Most federal fee-shifting laws make attorney fee awards the property of the client, 而不是澳博app. Central States, Southeast and Southwest Areas Pension Fund v. 中央供电公司., 76 F.3d 114, 116(第7卷. 伊斯特布鲁克，J.); 看,e.g.，埃文斯v. 杰夫D., 475 U.S. 717, 730 (1986) (Civil Rights Attorney’s Fee 奖 Act of 1976, 42 U.S.C. § 1988); 贝v. 米切尔, 495 U.S. 82,87(1990)(同).² Some federal fee-shifting statutes, 虽然, envisage awards to the lawyer, e.g.罗德里格斯v. 泰勒, 569 F.2d 1231, 1245(第3卷. 1977) (Age Discrimination in Employment Act), and some state laws do the same, e.g.弗兰纳里v. 普伦蒂斯, 28 P.3d 860,862 (Cal. 2001) (California Fair Employment and 住房 Act).³ 奖 made to the client, of course, do not implicate 规则5.4(a). 参见Central States, 76 F.3d at 116 (where statutory fees are client’s property, their contractual allocation between client and lawyer does not raise a fee-splitting issue).

We do not think that either proposed 付款 would constitute a prohibited sharing of legal fees. In Scenario One, the “fee” for purposes of 规则5.4(a) is the amount agreed upon 提前 between 原告 and Lawyer A. It is not the sum designated in the settlement agreement as “attorney fees.” This is so even if the applicable fee-shifting statute assigns ownership of such funds to the lawyer. The fact of the advance agreement ensures that the proposed 付款 would not interfere with the lawyer’s independence of judgment or contravene the other rationales for the prohibition that are noted above. 事实上, a failure by Lawyer A to give 原告 $60,90美元中的000美元,000 settlement amount would violate the contingent fee agreement, 看到 贝, 495 U.S. 82 (lawyer and client may agree to a fee that exceeds the amount ultimately awarded under 42 U.S.C. § 1988); Va. 法律伦理课. 1783 (2003) (sustaining 付款 to client of portion of “fee” received from adverse party that exceeds fee contractually agreed upon between lawyer and client), might constitute an improper withholding of client funds in violation of 规则1.15(b), 见In re Haar, 667 A.2d 1350 (D.C. 1995), 考虑到这60美元,000 represents two-thirds of the settlement amount—might constitute an unreasonable fee in violation of 规则1.5(a).

场景二, we assume that the fee award to which the inquiry refers is the property of Lawyer B rather than Client. Otherwise there presumably would be no issue under 规则5.4(a). 参见Central States, 76 F.3d在116; 特纳v. 空军部长, 944 F.2d 804, 808(第11章. 1991) (court’s award of statutory attorney fees to client does not violate prohibition on 澳博app的 与客户分摊费用). 也, we understand that there has been no advance commitment by Lawyer B to pay Client an amount equal to Lawyer B’s fee or, 就此而言, 任何数量. 相应的, we think the proposed 付款 is not the sharing of a fee but an 通融的 付款.⁴ See National Treasury Employees Union v. U.S. 财政部部长, 656 F.2d 848, 853-54 (D.C. 圆形的. 1981) (noting that lawyers are not prohibited from donating their fees to charity or to their employers); 约旦v. 美国司法部部长, 691 F.2d 514, 516 n. 14 (D.C. 圆形的. 1982)(相同).

Finally, neither scenario implicates 规则1.8(d)’s prohibition on advancing or guaranteeing financial assistance. This is because there is no indication in either instance that the lawyer promised, 更不用说制造或担保了, any such 付款 while the litigation was pending.

This Committee’s charter limits it to addressing whether the proposed 付款s violate the D.C. 规则. D.C. 澳博app公会法律道德通讯. R. A-1, C-4. We 协议ingly do not address such issues as the tax consequences of the proposed 付款s.

结论

相应的, in the specific circumstances presented by these inquiries, neither proposed 付款 by a lawyer to the client would violate the fee-sharing prohibition of D.C. 规则5.4(a).

通过日期:2009年11月

1. Scenario One offers no explanation for Defendant’s proposed allocation of the settlement amount. We express no view on the propriety of Defendant’s proposed designation of $60,000 of the settlement amount as “attorney fees” and $30,作为“补偿性损害赔偿”,” or the propriety of any acquiescence by 原告 or Lawyer A in that designation.
2. The Supreme Court soon will consider whether Equal Access to Justice Act (EAJA) fee awards belong to the lawyer or the client. 比较Ratliff v. 阿特鲁，华氏540度.3d 800(第8章. 2008) (EAJA awards are made to attorney, not client), cert. 批准，174升. Ed. 2d 631, 2009 U.S. Lexis 5148,78 u.S.L.W. 3169 (No. 08 - 1322)(9月. 30, 2009)，以及Marre v. 美国，117 F.三维297,304(第五卷. 1997)(同)，与斯蒂芬斯v. Astrue, 565 F.3d 131(第4期. 2009) (EAJA awards are made to client), and Reeves v. Astrue, 526 F.3d 732(第11章. 2008)(相同). The Court’s decision in Ratliff should not affect the conclusions of this opinion. If EAJA fees are the property of the client, there presumably is no issue under 规则5.4(a). If the award is the property of the lawyer, this opinion presumably will apply in respect of EAJA awards in the same way it applies to awards under other fee-shifting statutes.
3. Flannery indicates that its rule can be varied by “an enforceable agreement to the contrary” between lawyer and client. 弗兰纳里，28页.3d在862度.
4. Given the express, specific exception in 规则5.4(a)(5) for 付款s to certain charitable organizations, 虽然, we think the proposed 付款 would be prohibited by 规则5.4(a) had it been agreed upon between Lawyer B and Client, 一个人, 或B澳博app承诺, 提前. This is because a limited express exception ordinarily means that other, similar potential exceptions are not granted. 相关的法律准则是 表述的唯一性是排他性的 (i.e., the expression of one thing implies the exclusion of others).