ETHICS OPINION 582-1970 FEES

NUMBER 582

QUESTION.

 

The Committee on the Supreme Court of the New York County Lawyers’ Association has referred the following two questions to the Committee on Professional Ethics;

 

1. whether an accounting should be required of attorneys and organizations which raise monies for legal fees by appealing to the public in matters of broad public interest; and

 

2. whether it is proper for lawyers to volunteer their services gratis or for nominal fees and then arrange to participate with their clients for compensation flowing from book royalties, publication and serial rights and from movie and TV revenue.

 

ANSWER.

 

In answering this question the Committee assumes that the lawyer or lawyers have not participated, directly or indirectly, in the public appeals to raise money for the payment of their fees and expenses and have not received such monies directly from the general public, since such participation would be a clear violation of the prohibition against advertising contained in Disciplinary Rule 2-101(B).

 

On this assumption it is the Committee’s opinion that the lawyer’s only ethical duty to account would be the ordinary duty of a lawyer to account to his client for fees, disbursements and other use made of the client’s funds (see Disciplinary Rule 9-102(B).

 

From the lawyer’s point of view such financial data would constitute confidential or secret information which the lawyer could not properly disclose to third parties without the express consent of his client unless required to do so by law or court order (Disciplinary Rule 4-101).

 

The Committee expresses no opinion as to whether the law does or should require an organization or group which has raised monies for legal expenses by public solicitation to account to the contributors, to a governmental agency or official, or to the public at large for the use made of the monies collected. This correlated legal question does not involve ethical issues arising under the Code of Professional Responsibility.

 

Disciplinary Rule 5-104(B) provides:

 

“Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment,”

 

In the opinion of the Committee it would also be improper after the conclusion of the matter giving rise to the lawyer’s employment for the lawyer to demand or solicit from the client, as additional compensation for his services, any interest in the publication rights with respect to the subject matter of the employment, Since the assumed facts are that the lawyer has volunteered his services gratis or for a specified nominal fee, the client would owe the lawyer no further compensation (‘see Anderson v. Dister, 173 Misc. 261, 267 and cases cited).

 

After the conclusion of the matter giving rise to the lawyer’s employment the Disciplinary Rules would not necessarily preclude an unsolicited gift by the client to the lawyer of an interest in publication rights (see Ethical Consideration 5-5), nor necessarily preclude an interest granted directly by the publisher or producer in consideration for services to be performed by the attorney in connection with the publication However, such an arrangement would give rise to at least the suspicion that there had been a prior understanding on the subject in violation of Disciplinary Rule 5-104(B). For this reason, as well as the serious questions which would arise under Disciplinary Rule 2-101(A), discussed below, lawyers should ordinarily avoid such an arrangement.

 

Apart from the above stated considerations it should be noted that whenever a lawyer who is still engaged in the practice of law participates, directly or indirectly, in the publication (whether through books, periodicals, newspapers, motion pictures, television or radio) of his own professional activities serious question of the ethical propriety of the lawyer’s conduct will arise under Disciplinary Rule 2-101(A) which reads as follows:

 

“A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein public communications includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine, or book.”

 

Since the propriety of a lawyer’s conduct in the context of this Rule depends upon the special circumstances of each case, including such factors as the nature and wording of the publication, the occasion for and media of publication and the nature and extent of the lawyer’s participation, and in view of the limited facts assumed in the question presented by the Committee on the Supreme Court, this Committee is not in a position to render a specific opinion applicable to all factual situations. However, the Bar should be advised that, in the opinion of the Committee, Disciplinary Rule 2-101(A) would be violated by any conduct by a lawyer which constitutes encouraging or fostering any publication which is calculated to publicize the magnitude or importance of the interests handled by him or, in any way, his special skills, capabilities or talents in the practice of law (see Matter of Connelly, 18 A.D, 2d 466, 479) and that in the judgment of the Committee a financial interest by a lawyer in such a publication would constitute rather clear evidence of prohibited personal participation in violation of Disciplinary Rule 2-101(A).

 

October 23, 1970