Opinion #190: Pro Bono Representation Issues: Change of Fee and Use of Confidential Information

Issued by the Professional Ethics Commission

Date Issued: May 3, 2006

Questions

Bar Counsel has asked the Commission the following questions:

  1. When an attorney has made an agreement with a legal services organization serving the indigent to provide pro bono representation to a client referred to that attorney by that legal services organization, is it a violation of Maine Bar Rule 3.2(f)(3), 3.3(a) or any other Bar Rule for the attorney to make a separate fee agreement with the client that contravenes to the detriment of the client the terms to which the attorney agreed with the legal services agency?

  2. Would the answer to the first question change if the attorney does not make any explicit fee agreement with the client but simply sends the client a bill for services during or after the representation that exceeds that to which the attorney agreed with the legal services organization?

  3. When client and case information are disclosed by a legal services organization serving the indigent to an attorney for purposes of inquiring whether the attorney will agree to provide the client with pro bono representation, is it a violation of Maine Bar Rule 3.6(h) or any other Bar Rule for the attorney to use this information for a purpose detrimental to the client, such as in either later inducing the client to hire the attorney for a fee or in advocating for another client whose interests are adverse to those of the client referred by the legal services organization?

Opinion

The Commission finds the answers to these questions clear both in the context of any reasonable understanding of the broad ethical duties of attorneys as well as in the context of specific Bar Rules. This Opinion will directly examine the latter.

Alteration of Agreed Upon Fee to the Detriment of the Client

As to the first two questions, we believe that an attorney who violates an agreement undertaken for the benefit of the client in the manner indicated would be charging an excessive fee, in violation of Bar Rule 3.3(a), which states, in part: “A fee is excessive when, after review of the facts, a lawyer of ordinary prudence would be left with the definite and firm conviction that the fee is in excess of a reasonable fee.” In the view of this Commission, a fee in excess of that to which the attorney agreed for the benefit of an indigent client is per se unreasonable and therefore in violation of this stated general principle of the Rule. Moreover, two of the specific factors to be considered under the Rule in determining the reasonableness of a fee are undermined by charging such a fee. The attorney has set a fee which is inconsistent with the nature of the professional relationship with the client, see Rule 3.3(a)(6), and the fee charged is in excess of that which was fixed, see Rule 3.3(a)(8).

If the financial circumstances of the client change or do not reflect those of indigence or financial need as the legal services organization referring the client had understood, then, if the attorney wishes to charge a fee, the attorney’s obligation is to so inform the legal services organization and obtain a change in its agreement before approaching the client about a different fee arrangement.[1]

If the attorney has not obtained a change in his/her agreement with the legal services organization before approaching the client about a different fee agreement, that attorney has misused a fiduciary position of trust with the client. An attorney who has agreed with a legal services organization, which is acting on behalf of the indigent client, to take a case pro bono or at a reduced fee, and then extracts a greater fee from the client, without telling the client about the lawyer’s prior commitment to charge a lesser fee or no fee at all, violates Bar Rule 3.2(f) (3). Through such silence, the attorney has essentially engaged in fraud. See Glynn v. Atlantic Seaboard Corp., 1999 ME 53 at ¶ 12, 728 A.2d 117, 120 (where fiduciary relationship exists between parties, omission by silence may constitute supplying of false information).

In sum, there are no facts conceivable to this Commission, in the absence of the legal services organization’s prior express consent, by which an attorney could agree to charge no fee for legal services and then ethically charge the client a fee. In this response, the Commission finds no distinction between the first and second questions.

Use of Confidential Information

Under the circumstances set forth in the third question, the Commission is of the opinion that the attorney would be in violation at least of Bar Rule 3.6(h)(1)(iv), which prohibits, except in circumstances not present here, knowing disclosure or use of information that is received from a prospective client, the disclosure of which would be detrimental to a material interest of the client, when the information is provided under circumstances in which the prospective client has a reasonable expectation that the information will not be disclosed. For purposes of this analysis, there is no difference between information received from the legal services organization on behalf of the client and information received directly from the client.

Footnotes

[1] The legal services organization’s materials that the Commission was provided document the client’s consent for the attorney to release such financial information to the organization.


Enduring Ethics Opinion