道德意见351

与客户分担法律费用

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

适用的规则

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

Inquiry

The Legal Ethics Committee (“Committee”) has been asked whether two proposed payments by lawyers to their clients violate the fee-sharing prohibition of Rule 5.4(a) of the D.C. 《澳门赌场官网》(“D.C. Rules”).

Scenario One:  Plaintiff 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澳门赌场官网费和30美元,作为补偿性损害赔偿. (The Plaintiff’s claim arises under a “fee-shifting” statute that provides for attorney fees.) As contemplated by her agreement with Plaintiff, 澳门赌场官网A只希望保留30美元,000 in attorney’s fees (one-third) and allocate the other $30,000 (of designated “attorney fees”) to Plaintiff. Plaintiff, therefore, 最后会得到60美元,000 of the $90,结算款, as contemplated by the contingent fee agreement made by Plaintiff and Lawyer A at the beginning of the engagement.

Scenario Two: 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.

Discussion

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

(五)澳门赌场官网可以分担澳门赌场官网费, whether awarded by a tribunal or received in settlement of a matter, with a nonprofit organization that employed, retained, 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. Rule 5.4; accord 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 & Leech v. 加州州立 Bar, 6 Cal. App. 3d 565, 573- 74,86 Cal. Rptr. 367, 372 (Ct. App. 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 entitled to share the lawyer’s fees—a situation that does not obtain in either scenario set out above:

A person entitled 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 Rule 5.4(a), D.C. 澳门赌场官网公会法律操守课. 233 (1993), and the Virginia Bar’s ethics committee has said that “application of Rule 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 & Leech, 6 Cal. App. 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, 而不是澳门赌场官网. 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.); see, e.g., Evans v. Jeff D., 475 U.S. 717, 730 (1986) (Civil Rights Attorney’s Fee Awards Act of 1976, 42 U.S.C. § 1988); Venegas v. Mitchell, 495 U.S. 82,87(1990)(同).² Some federal fee-shifting statutes, though, envisage awards to the lawyer, e.g., Rodriguez v. Taylor, 569 F.2d 1231, 1245(第3卷. 1977) (Age Discrimination in Employment Act), and some state laws do the same, e.g., Flannery v. Prentice, 28 P.3d 860,862 (Cal. 2001) (California Fair Employment and Housing Act).³ Awards made to the client, of course, do not implicate Rule 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 payment would constitute a prohibited sharing of legal fees. In Scenario One, the “fee” for purposes of Rule 5.4(a) is the amount agreed upon in advance between Plaintiff 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 payment would not interfere with the lawyer’s independence of judgment or contravene the other rationales for the prohibition that are noted above. Indeed, a failure by Lawyer A to give Plaintiff $60,000 of the $90,000 settlement amount would violate the contingent fee agreement, see Venegas, 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 payment 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 Rule 1.15(b), see 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 Rule 1.5(a).

In Scenario Two, 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 Rule 5.4(a). 参见Central States, 76 F.3d at 116; Turner 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 attorney’s 与客户分摊费用). Also, 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, any amount. Accordingly, we think the proposed payment is not the sharing of a fee but an ex gratia payment.⁴ See National Treasury Employees Union v. U.S. 财政部部长, 656 F.2d 848, 853-54 (D.C. Cir. 1981) (noting that lawyers are not prohibited from donating their fees to charity or to their employers); Jordan v. 美国司法部部长, 691 F.2d 514, 516 n. 14 (D.C. Cir. 1982) (same).

Finally, neither scenario implicates Rule 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 payment while the litigation was pending.

This Committee’s charter limits it to addressing whether the proposed payments violate the D.C. Rules. D.C. 澳门赌场官网公会法律道德通讯. R. A-1, C-4. We accordingly do not address such issues as the tax consequences of the proposed payments.

Conclusion

Accordingly, in the specific circumstances presented by these inquiries, neither proposed payment by a lawyer to the client would violate the fee-sharing prohibition of D.C. Rule 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 Plaintiff 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. Astrue, 540 F.3d 800(第8章. 2008) (EAJA awards are made to attorney, not client), cert. granted, 174 L. Ed. 2d 631, 2009 U.S. Lexis 5148,78 u.S.L.W. 3169 (No. 08-1322) (Sept. 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) (same). 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 Rule 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. Flannery, 28 P.3d at 862.
4. Given the express, specific exception in Rule 5.4(a)(5) for payments to certain charitable organizations, though, we think the proposed payment would be prohibited by Rule 5.4(a) had it been agreed upon between Lawyer B and Client, an individual, 或B澳门赌场官网承诺, in advance. 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).