Can a New York lawyer send a client's retainer agreement and invoices to a credit card company to fight a chargeback of legal fees?
NYSBA Ethics Opinion 1248: Disputing a Credit Card Chargeback of Legal Fees
Short answer: The opinion concludes that a lawyer may give a credit card provider information such as the retainer agreement and invoices to contest a client's chargeback only if that information is not confidential, or the client gives informed consent, or, absent consent, the lawyer reasonably believes disclosure is necessary to collect the fee; the disclosure must be limited or redacted, and the lawyer must still comply with the New York State Fee Dispute Resolution Program.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquirer accepts credit card payments for legal fees. When a client later disputes the charge and requests a "chargeback," the card provider lets the lawyer respond with information about the services rendered. The question is whether sending the retainer agreement and invoices would violate the duty of confidentiality.
The opinion proceeds in steps. First, it asks whether a retainer agreement or invoices are "confidential information" under New York's narrower Rule 1.6(a) definition (privileged, embarrassing or detrimental, or information the client asked be kept confidential). The opinion concludes this depends on the facts: information about the general nature of services is not invariably confidential, but even the existence of a representation can be confidential in sensitive practice areas such as criminal, bankruptcy, debt collection, or family law (citing N.Y. State 1088 (2016)).
Second, if the material is confidential, the lawyer may disclose it with the client's informed consent under Rule 1.6(a)(1) and Rule 1.0(j). The opinion offers timing guidance: the lawyer can seek consent when the dispute arises, explaining the limited purpose and any proposed redactions, or obtain advance consent in the retainer agreement, which the client may later revoke.
Third, absent consent, the lawyer must find an exception. Rule 1.6(b)(5)(ii) permits disclosure "to the extent that the lawyer reasonably believes necessary . . . to establish or collect a fee." The opinion stresses this exception does not always apply; where practicable the lawyer should first try to resolve the dispute or persuade the client to withdraw the chargeback (Rule 1.6 Cmt. [14]). When the exception does apply, the lawyer must redact information not reasonably necessary to collect the fee. Finally, the opinion holds that contesting a chargeback does not relieve the lawyer of the obligation under the Fee Dispute Resolution Program (22 NYCRR Part 137) to serve a Notice of Client's Right to Arbitrate, which should be provided contemporaneously.
In practice
Under this opinion, a New York lawyer contesting a credit card chargeback may submit the retainer agreement and invoices to the card provider if the material is not confidential, or the client has consented, or the lawyer reasonably believes disclosure is necessary to collect the fee under Rule 1.6(b)(5)(ii). Per the opinion, the lawyer should first try to resolve the dispute where practicable, must redact anything beyond what is objectively reasonable to prove entitlement to the fee, and must still serve the Notice of Client's Right to Arbitrate under the Fee Dispute Resolution Program.
Common questions
Q: Are a retainer agreement and invoices confidential information under the New York rules?
A: Per the opinion, it depends on the facts; New York defines confidential information narrowly, and information about the general nature of services is not always privileged, embarrassing, or marked confidential, though even the fact of representation can be confidential in sensitive matters.
Q: Can a lawyer get advance consent to disclose fee information for a future chargeback?
A: Per the opinion, yes, the lawyer may obtain informed consent in the retainer agreement and rely on it unless and until the client revokes it.
Q: Without consent, on what basis can the lawyer disclose?
A: Per the opinion, the Rule 1.6(b)(5)(ii) exception for information reasonably necessary to establish or collect a fee, applied only after trying to resolve the dispute where practicable and limited by redaction.
Q: Does fighting the chargeback satisfy the lawyer's fee-dispute obligations?
A: Per the opinion, no. The chargeback process does not relieve the lawyer of the Fee Dispute Resolution Program; the Notice of Client's Right to Arbitrate should be served contemporaneously.
Background and rules framework
The opinion interprets New York Rule 1.6, including the confidentiality duty in Rule 1.6(a), the fee-collection exception in Rule 1.6(b)(5)(ii), and the informed-consent definition in Rule 1.0(j), alongside the procedural requirements of the New York State Fee Dispute Resolution Program (22 NYCRR Part 137). Rule 1.6 corresponds to ABA Model Rule 1.6.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.6(a), 1.6(b)(5)(ii), 1.6 Cmt. [14], 1.0(j)
- ABA Model Rule 1.6 (analogue)
Regulations:
- 22 NYCRR Part 137 (New York State Fee Dispute Resolution Program)
Other opinions cited:
- N.Y. State 362 (1974): lawyers may accept credit card payment of fees with appropriate safeguards
- N.Y. State 1088 (2016): when the fact of representation is confidential; N.Y. State 1118 (2017) and N.Y. State 1061 (2015)
See also
- ABA Formal Op. 00-419: Credit Card Payment of Fees
- ABA Formal Op. 476: Withdrawal for Unpaid Fees
- ABA Formal Op. 02-425: Arbitration in Retainer Agreements
Source
- Landing page: https://nysba.org/ethics-opinion-1248/