In certain situations, attorneys may be asked to allow a third party to pay
There are various situations that may arise where an attorney may be asked to allow a third party to pay a client’s attorney’s fees. Examples include a parent paying for a criminal defense attorney or a divorce attorney for a child. When a third party is paying the bills it is particularly important to comply with the applicable rules and not to confuse the client with the person paying the bills or to include the third party in confidential client communications.
Rule 3-310(F) provides that an attorney may not accept payment for representing a client from anybody other than the client unless the attorney complies with certain requirements.
No interference is allowed
First, there must be no interference with the attorney’s independent professional judgment or with the attorney-client relationship. This means that just because a person is paying the bills she doesn’t get to direct the representation.
Confidentiality must be maintained
Second, you must strictly maintain the client’s confidential information as required under Business and Professions Code section 6068, subdivision (e). Often a person paying the bill, particularly a parent or other close relative who is genuinely interested in helping the client, will want to be informed about what is going on in the case and offer input on the attorney’s strategy. Also, they may want details about what services they are paying for.
However, just like in any other matter, unless the client specifically authorizes the attorney to discuss confidential or privileged information, the attorney cannot disclose anything to the third party. An attorney should also be careful to make sure the client doesn’t feel obligated to share confidential information with the third party simply because that person is paying the bills.
Written consent is required
Third, the attorney must obtain the written consent of the client before the attorney may accept payment from a third party. A good practice is to discuss payment terms directly in the engagement agreement and confirm that though a third party will be paying the bills, she shall have no authority to direct the representation or have access to confidential client information or privileged communications.
The attorney will also want to have the third party sign an agreement to confirm responsibility to pay the client’s bills. The attorney should consider whether to have the third party sign the same engagement agreement as the client or to enter into a separate agreement with the third party. In order to preserve any privilege as to the client’s engagement agreement, the attorney should do a separate agreement with the third party. The agreement should also confirm that the payor is not the client, shall have no authority to direct the representation or have access to confidential client information and privileged communications.
A related issue is who is entitled to a refund of any funds remaining at the conclusion of representation, the client or the person who paid? COPRAC Formal Opinion 2013-187 addressed this question and concluded that the attorney must return the balance to the third-party payor rather than the client, unless the engagement agreement with the client provides otherwise. Accordingly, the attorney should also clarify return of funds in the client engagement agreement.