A LOOK AT THE ETHICAL ISSUES RAISED BY ACCEPTING PAYMENT OF LEGAL FEES THROUGH PAYMENT APPS
BY PAMELA LANGHAM, ESQ.
METHODS OF PAYMENT in today’s world are constantly evolving. Many solo practitioners need to be nimble in the way clients pay their legal fees to make it simple for them to pay, including acceptance through payment apps.
This article will address whether a lawyer can accept legal fees through online payment apps, such as Venmo, PayPal, Zelle, LawPay, LawCharge, or Headnote, and the ethical issues surrounding the acceptance of payment through these apps. Guidance will be provided to help mitigate risks.
The American Bar Association has yet to issue guidance on accepting payment of legal fees through a payment app but has cautioned attorneys about using outside vendors and compliance with Model Rule 1.5 on record-keeping and safekeeping of property. The Florida and South Carolina bar associations have issued advice on payment app adoptions. The Florida Bar Ethics Opinion stated a lawyer may ethically accept payments via a Web-based payment processing service as long as steps are taken to protect against disclosure of information and the funds are safeguarded and not commingled. The South Carolina opinion stated attorneys may accept payment through these apps so long as they don’t commingle client funds with their own and make timely transfer advances to an interest-bearing trust account. The Maryland Ethics Committee has yet to issue an opinion, but this article will focus on accepting payments through these payment apps based on the current version of the Maryland Attorneys’ Rules of Professional Responsibility (“Maryland Rules”) and opinions issued by the Maryland State Bar Association Ethics Committee (“Ethics Committee”).
Payment apps are popular among a large portion of the population and clientele for lawyers. Some of these payment apps are specifically designed for the legal profession, i.e., LawPay, LexCharge, or Headnote; others are not, i.e., Venmo, PayPal, and Zelle. These payment apps also operate in different ways. Regardless of which payment app a lawyer decides to use, they all create risk with an attorney’s obligation to protect all client funds and protect the confidentiality of client information.
Prohibition on Commingling of Funds
Venmo and PayPal hold funds in a “digital wallet” until they are transferred to a bank account. Indeed, they are not bank accounts at all, so they do not seem to qualify as the type of bank account contemplated by the trust accounting rules set forth in Rules 19-401 to 19-412, Maryland Rules.
In addition, Rule 19-404 of the Maryland Rules provides that advance payments (retainers) “shall be deposited in an attorney trust account in an approved financial institution.” Rule 19-408 of the Maryland Rules of Professional Responsibility, establishes an anti-commingling of funds rule that a lawyer must hold in trust and separate from all other funds.
To avoid impermissible commingling, it seems a lawyer may accept legal fees through a payment app into their operating account for earned fees. As of the writing of this article, Venmo and PayPal do not provide or allow a lawyer to designate a separate bank account to accept unearned fees. The issue is exacerbated because Venmo and PayPal charge service fees and they are equally unprepared to distinguish between an attorney’s operating versus trust account for payment of these service fees. Zelle actually transfers money directly between almost any eligible U.S. bank account, typically within minutes. Guidance on whether a lawyer can accept payment through Zelle depends largely on whether the Rule 19-411 approved MLSC bank utilizes Zelle and whether Zelle’s service agreement allows the lawyer to designate which funds should go into their operating versus their trust account and the appropriate account to withdraw service fees and chargebacks. Many banks do not allow you to link a trust account with a payment processing service such asVenmo, PayPal, or Zelle.
Payment apps that are specifically designed for lawyers, like LawPay, LexCharge and Headnote allow attorneys to accept online payments into both an operating and trust account while maintaining compliance with Rules 19-401 to 19-412, Maryland Rules. Strong consideration should be given to using their services.
In sum, to avoid commingling, the lawyer must arrange for separate accounts with the payment app; one for the lawyer’s operating account and a separate one for the lawyer’s trust account. As of the writing of this article, Venmo and PayPal are not set up to allow a lawyer to accept electronic payments into two separate accounts.
A lawyer should exercise caution in accepting payment of legal fees through a payment app that is not designed specifically for lawyers and for maintaining compliance with the professional rules. Of course, if a lawyer decides to accept payments through one of these services, the lawyer is responsible for all fees and chargebacks unless the lawyer and client otherwise agree.
Confidentiality
The use of these payment apps creates enormous privacy risks. It is the lawyer who needs to take the responsibility of protecting the financial information. Transactions on Venmo are published to a feed of each Venmo user. This risks disclosure of information pertaining to the representation of a client in violation of Rule 19-301.6 of the Maryland Rules. Rule 19-301.6 prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent. Venmo does allow users to adjust their privacy settings to control who sees particular transactions: Public, Friends Only, and Private. Lawyers accepting Venmo payments should choose the privacy setting and instruct their clients to use the privacy setting to mitigate against unwanted disclosure of information. PayPal and the other payment apps all have their own individual privacy settings, and the lawyer should become well acquainted with their settings prior to accepting payment for legal fees earned through their app. Payment apps specifically designed for lawyers are well-versed in a lawyer’s duty to maintain confidentiality and ensure that the confidentiality rules are satisfied for each transaction.
Guidance to Mitigate Risks
Accept Payment Through a Payment App Only for Earned Fees
There is little risk of violating the prohibition of commingling funds if a lawyer accepts payments through a payment app for fees already earned to hold in a digital wallet until the lawyer transfers the money into their operating account. However, the opposite is true for the acceptance of a retainer fee (unearned fees) from one of the payment apps that are not specifically designed for legal services.
Use A Payment App Specifically Designed for Lawyers for Earned and Unearned Fees
he Maryland Rules specifically mandate that all unearned fees must be placed into an attorney’s trust account. An attorney cannot accept payment of a retainer by first depositing the funds into the attorney’s operating account (via Venmo or PayPal) and then transferring it into their trust account. SeeMaryland Ethics Committee Docket 03-06. Using a legal-specific online payment app such as LawPay, LexCharge or Headnote will assist the attorney in maintaining their obligations to their trust account. These legal-specific services are designed to allow an attorney to accept online payments into both their operating and trust accounts while withdrawing the transactional fees and chargebacks from the operating account.
Transactions Fees and Chargebacks
The lawyer must ensure that any transaction fees or chargebacks are paid by the lawyer unless the lawyer and client otherwise agree. The lawyer must ensure that any transaction fees or chargebacks are not withdrawn from the lawyer’s trust account.
Maintain Confidentiality of the Client’s Financial Transactions
The lawyer must ensure that the payment app maintains adequate encryption and other security features to protect the lawyer and client’s financial information and especially to preserve the confidentiality of any transactions. The lawyer must take steps to advise the client of any steps they should take to prevent unwanted disclosure of confidential information.
Communicate
Use of a payment app that is not specifically designed for lawyers to comply with their trust account obligations may not be worth the time unless the lawyer restricts the use of the app for earned fees. Nevertheless, it is important for the lawyer to communicate to the client the lawyer’s obligations in regard to legal fee payments. It is also important to ensure the attorney-client legal services agreement states whether the attorney or the client will be responsible for the payment of transactional fees and chargebacks.
LawPay is an endorsed vendor of the MSBA.
This is the second article of a five-part MSBA blog post series that discussed non-traditional payment of legal fees by credit card, payment apps, or third-party financing. This series was designed to assist you in becoming aware of the ethical consideration a lawyer must consider before accepting payment of legal fees through one of these methods, as well as providing guidance to mitigate risks.