3 October 2015
No.
It is common for some potential clients that need legal
help to seek and need a third party to pay for the legal representation. In that case, it is also common for that
third party payer to expect to have access to the communications between the
attorney and client and have input on decision making. Some payers even make demands or place
conditions on the payment, sometimes out of interest in helping the client, and
sometimes to serve their own interests.
But from the lawyer’s perspective, to maintain ethical
standards, he must resist when a third party payer has these expectations, and many
times opt not to pursue the representation if the issue cannot be rectified. There are common sense reasons that any
objective layman could express, and one professional reason is the need to
comply with the Massachusetts Rules of Professional Conduct. Specifically the rules that apply are 1.3,
1.6, and 1.7 which are in pertinent part:
RULE 1.3: DILIGENCE
A lawyer shall act with reasonable diligence and promptness
in representing a client. The lawyer should represent a client zealously within
the bounds of the law.
RULE 1.6: CONFIDENTIALITY OF
INFORMATION
(a)A lawyer shall not reveal confidential information
relating to the representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to carry out the
representation or the disclosure is permitted by paragraph (b).
. . .
.
RULE 1.7: CONFLICT OF INTEREST:
CURRENT
CLIENTS
(a)
Except as provided in paragraph (b),
a lawyer shall not represent a client if the representation involves a
concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client
will be directly adverse to another client; or
(2) there is a significant risk that
the representation
of one or more clients will be materially limited
of one or more clients will be materially limited
by the
lawyer’s responsibilities to another client,
a former
client or a third person or by a personal
interest of
the lawyer.
(b)
Notwithstanding the existence of a
concurrent conflict of interest under
paragraph (a), a lawyer may
represent a client if:
(1) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent
representation to each affected client;
(1) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent
representation to each affected client;
(2) the representation is not
prohibited by law;
(3)
the representation does not involve
the assertion of
a claim by one client against
another client represented
by the lawyer in the same litigation
or other proceeding
before a tribunal; and
(4)
each affected client gives informed
consent,
confirmed in writing.
. . . .
Comment
. . . .
Interest of Person Paying for a Lawyer’s Service
[13] A lawyer may be paid from a source other than the
client, including a co-client, if the client is informed of that fact and
consents and the arrangement does not compromise the lawyer’s duty of loyalty
or independent judgment to the client. See Rule 1.8(f). If acceptance of the
payment from any other source presents a significant risk that the lawyer’s
representation of the client will be materially limited by the lawyer’s own interest
in accommodating the person paying the lawyer’s fee or by the lawyer’s responsibilities
to a payer who is also a co-client, then the lawyer must comply with the requirements
of paragraph (b) before accepting the representation, including determining whether
the conflict is consentable and, if so, that the client has adequate information
about the material risks of the representation.
Another good reason is the attorney-client privilege. The basics are that a client wants to have
his communication with his attorney to be protected from disclosure, for many
reasons, one being that they may be in litigation in the future and it will
damage them to have the communication revealed.
The attorney-client privilege allows a client to keep his communications
with his attorney from disclosure. If a
third party is present during the communication, or if that information is
later revealed, the attorney-client privilege could be attacked. This means the
client’s adversary (the other side) may be entitled to the confidential information
because it was not treated properly.
If you are intending on paying
for the legal representation of another party, it may be that you care for them
or seek to make sure things are done right.
It is important to understand that purchasing legal services is
different than anything else, and your seeking to be privy to the confidential
information that otherwise would also be covered by the attorney-client
privilege, can harm the very person that you are trying to help. Instead of seeking to control the matter and
placing demands on the payment of your money that only an unethical attorney would
accept, the better course of action is to find an ethical attorney and trust that
the attorney will have the client’s best interests at heart. And if a lawyer resists the types of demands discussed
in this post that would be the first indication that lawyer may be a good
choice.
If you are seeking an attorney
that has his client’s interests at heart, feel free to give this office a call.
