One of your former clients paid his legal fees with a credit card, and you have now received notice from the credit card company that the former client is disputing the legal fees and has requested a chargeback. The credit card company requires that you provide documentation of the legal services to demonstrate the validity of the charges, and you send along copies of the client bills which include brief accounts of the work performed and the time spent on each task. Sending that information to the credit card company:
A. Is permissible because the client’s request for a chargeback establishes a controversy that permits an attorney to reveal confidential client information.
B. Is permissible because mere lists of tasks performed for a client and the time spent on each is not confidential information.
C. Is impermissible because an attorney may not disclose information relating to the representation of a client without the client’s informed consent.
D. Is impermissible because attorneys are not allowed to dispute chargeback requests from clients.
CORRECT ANSWER: C. Is impermissible because an attorney may not disclose information relating to the representation of a client without the client’s informed consent.
A recent Missouri Informal Ethics Opinion states that an attorney may not disclose information relating to the representation, “including information about legal services provided and fees charged,” without the client’s informed consent. See Missouri Informal Ethics Op. 2020-22. The opinion further notes that, though the confidentiality rule does contain an exception to confidentiality for an attorney “to establish a claim or defense in a controversy between the lawyer and the client,” a chargeback request by a client is not the type of controversy that gives rise to the exception.
An attorney’s duty of confidentiality is set forth in Rule 1.6, and the comments to that rule define “confidential information” as “all information relating to the representation, whatever its source.” See Rule 1.6, Comment . This extremely broad definition of confidentiality includes not only proprietary or sensitive information about the representation, but also information attorneys may not realize are confidential, including documents that are matters of public record and the fact of the representation itself. This also includes billing information such as the types of legal services performed and the fees charged for those services. See Rule 1.6: Confidentiality and Missouri Informal Ethics Op. 2018-08.
This recent ethics opinion regarding chargebacks states that an attorney may respond to a chargeback request with “an affidavit or statement that professional services were provided,” and may also state that “professional obligations” prevent the attorney from providing more detailed information. The opinion also includes a note that attorneys who accept credit card payments for fees should ensure any chargeback for disputed payments cannot be processed out of the firm’s trust account. For more information on ethics considerations and risk management issues relating to accepting credit card payments for legal fees, please see our recent article here: https://www.thebarplan.com/credit-card-fee-payments/.
Malpractice Insurance : Not All Policies Are The Same
Lawyers’ Malpractice Insurance can be complicated and nuanced. In this explainer video we unpack an important policy differentiator that may save you money and protect your practice in the long run: FDCPA (Fair Debt Collections Practices Act) claims coverage.