ETHICS COMMITTEE OPINION NO. 16-02
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STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE OPINION NO. 16-02
This opinion is advisory only
QUESTION PRESENTED The Ethics Committee has been asked to render its opinion on whether a lawyer may undertake representation of Party B while accepting payment of attorney fees from Party A, who is bringing suit against Party B and wants to ensure that Party B has legal representation.
OPINION Based on the facts presented below, Party A may cover the attorney fees for Party B, providing that the lawyer for Party B reasonably believes this third party payment will not interfere with his independent professional judgment and there is consent from the client( Party B).
APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT
Rule 1.6( a), N. D. R. Prof. Conduct: Confidentiality of Information; Rule 1.7( c), N. D. R. Prof. Conduct: Conflict of Interest: General Rule; Rule 1.8( f), N. D. R. Prof. Conduct: Conflict of Interest: Prohibited Transactions; Rule 5.4( c), N. D. R. Prof. Conduct: Professional Independence of a Lawyer
FACTS PRESENTED Party A is bringing suit against Party B. Party A wants to ensure Party B has legal representation, therefore Party A has offered to pay the attorney fees for Party B. Party B is permitted to find a lawyer of his own choosing.
DISCUSSION Rule 1.7( c), N. D. R. Prof. Conduct, addresses situations where the lawyer’ s responsibilities to a third party may adversely affect his representation of the client. The lawyer is prohibited from undertaking representation unless the lawyer reasonably believes there will be no adverse effect on the representation and the client consents after consultation.
Rule 1.8( f), N. D. R. Prof. Conduct, allows for a lawyer to accept compensation for representing a client from someone other than the client( including an indemnitor) provided certain conditions are met. The lawyer must determine that there will be no interference with his independent professional judgment. The client must consent after consultation. And, the lawyer must abide by Rule 1.6, N. D. R. Prof. Conduct, regarding confidentiality. continued on page 38
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