Opinion 94-13
(June 1994)

You have inquired whether an attorney may agree with a spousal/child support client to do the following:

1.  Direct the Family Court Bureau of Accounts to mail the periodic support check, payable to the client, in care of the attorney to the attorney's office; and

2.  Get a power of attorney from the client for the attorney to endorse the client's name on the checks and deposit them in the attorney's escrow account; and

3.  Thereupon to make distribution to the client after deduction of a certain amount (or percentage of each check) to be applied toward payment of the attorney's fee (which fee is not a contingent fee but based upon hours of service as billed or a fixed fee as previously agreed).

You have proposed this because you believe that more attorneys may be willing to represent the dependent spouse or mother when their fee is secured by the agreement as set forth, thereby making available counsel to this otherwise under-represented segment of litigants.

In order to determine whether this arrangement satisfies the Rules of Professional Conduct, we first turn to Rule 1.5(d), which proscribes the charging of a fee the payment or amount of which is contingent upon ... the amount of alimony or support. You have assured us that the client is responsible for the fee as charged whether or not support payments are received, and that this arrangement is merely a deferral of fee payment to a time when the client is better able to pay, and that payment in the form of a percentage of each support check received is to assure that the client will get the bulk of each check for living needs, as it is intended. Accordingly, we do not find this arrangement to be impermissible under Rule 1.5(d).

We next turn to Rule 1.8, which prohibits certain business transactions with a client. Under Rule 1.8(a), a lawyer must fully disclose, in writing, the terms of the transaction to the client in a manner which can be reasonably understood by the client, and advise and give the client a reasonable opportunity to seek the advice of independent counsel, and get the client's consent in writing.

A common example of reference to this rule in domestic relations cases occurs when the lawyer seeks to obtain a note, judgment or mortgage to secure payment of fees. There it is axiomatic that the lawyer must comply with the procedures set forth in Rule 1.8(a)(1) through (3). Therefore, if you do so properly, you will not violate Rule 1.8(a) by use of the arrangement described.

More troublesome is Rule 1.8(jr), which prohibits the obtaining by a lawyer of a proprietary interest in a cause of action, with the exceptions listed, which do not seem to be applicable. The Comment notes that this is a general rule which has its basis in the common law notions of chancery and maintenance.

However, despite a lack of court decisions and ethics/guidance committee opinions on this topic, we see no difference in the ethical constraints of your handling of a matter under this arrangement that in the forces brought to bear upon your representation when you are simply hoping to be paid by your client at a later date without the security obtained here. Hence, we do not believe the arrangement violates Rule 1.8.

Nonetheless, we caution you not to abuse the arrangement in any way whatsoever. Specifically, we urge you to issue your check to the client immediately upon receipt of the court check, and to terminate the agreement promptly when you are paid in full (and thereafter to send the entire check to the client or advise the Bureau of Accounts to mail its check directly to the client). Furthermore, the fee taken out of each payment must be reasonable compared to the amount of each check, as must be interest charged, if any. In the event of a dispute between you and the client as to any balance allegedly owed you, you must honor the client's direction with regard to the checks and seek redress against the client elsewhere.

Finally, since the arrangement is for your security and convenience, and not for the client, we believe it would be improper for you to charge to the client your time involved in turning around the checks. A fee for this activity would be unreasonable.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.