Can a Utah lawyer accept credit cards for legal fees and costs?

Plain-English summary

Opinion 97-06 revisited the older Opinion No. 21 (1975), which had placed significant restraints on attorneys accepting credit cards under the then-effective Code of Professional Responsibility. The Committee concluded that, under the current Rules of Professional Conduct, attorneys may accept payment for fees and costs by credit card in the same way other merchants and service providers do, and it overruled Opinion No. 21.

The opinion walked through the six "considerations" that ABA Formal Opinion 338 (1974) and Utah's Opinion 21 had imposed, including prior bar approval of credit-card advertising, directory restrictions, and limits on promotional materials, and found that current Rule 7.2 (advertising) no longer required them. It addressed five specific questions and answered each permissively: a lawyer may accept funds the lawyer knows the client obtained by credit card; may take a credit-card authorization in a retainer agreement; may suggest a client use a card; may note on bills that cards are accepted; and need not use the old "Bank Charge Card-Attorney Agreement" form.

The Committee tied two cautions to existing rules. First, if a lawyer accepts a card payment as an advance of fees, the lawyer must comply with Rule 1.15 (safekeeping) and Rule 1.16(d) (refunding unearned advances). Second, because paying by card may reveal to the card company that the client retained a lawyer, the opinion said that where the lawyer is aware the client wants the representation kept confidential, the lawyer should alert the client to that disclosure so the client can consent, consistent with Rule 1.6. The opinion also noted a lawyer may pass along the card company's processing charge, for example through a discount to cash-paying clients.

Currency note

This opinion was issued in 1997, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Utah lawyer suggest that a client pay fees with a credit card?

A: Yes. The opinion concluded a lawyer may suggest that a client use a credit card to pay fees or costs, while noting Rule 2.1 may lead a lawyer to advise against it where economic factors of the client's situation warrant.

Q: Did the opinion require any special agreement to accept cards?

A: No. It concluded a lawyer has no obligation to enter into a bank charge card-attorney agreement like the form attached to old Opinion 21, seeing no reason the lawyer-card-company relationship would differ from other professional service providers.

Q: What did the opinion say about confidentiality when a client pays by card?

A: Because accepting a card may reveal to the card company that the client paid a lawyer, the opinion said that when the lawyer knows the client wants the representation confidential, the lawyer should alert the client to that disclosure so the client can consent under Rule 1.6.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 1.5 (fees), which it read as permitting credit-card payment, alongside Rule 7.2 (advertising), Rule 2.1 (advisor), Rule 1.6 (confidentiality), Rule 1.15 (safekeeping property), and Rule 1.16(d) (refunding unearned advances). The relaxation of the old restrictions tracked the expansion of permissible attorney advertising under the Rules of Professional Conduct compared with the prior Code. These correspond to ABA Model Rules 1.5, 7.2, 2.1, 1.6, 1.15, and 1.16.

Citations and references

Rules of Professional Conduct:

• MR 1.5 / Utah RPC 1.5 (fees) and MR 7.2 / Utah RPC 7.2 (advertising)
• MR 1.6 / Utah RPC 1.6 (confidentiality); MR 2.1 / Utah RPC 2.1 (advisor)
• MR 1.15 / Utah RPC 1.15 (safekeeping) and MR 1.16 / Utah RPC 1.16(d) (refunds)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), attorney advertising
• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), advertising

Other opinions cited:

• ABA Formal Op. 338 (1974): credit-card payment permitted under the Code, with six considerations
• Utah EAOC Op. No. 21 (1975): overruled by this opinion

See also

• ABA Formal Op. 00-419: Credit Card Payment of Fees
• AK Bar Ethics Op. 85-5: Credit Card Fee Payment
• AK Bar Ethics Op. 2014-1: Credit Card Surcharges

Source

• Landing page: https://www.utahbar.org/ethics-opinions/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/1997-06.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Utah Ethics Opinions enter into a bank charge card-attorney agreement similar to the agreement attached to Ethics Advisory Opinion No. 21, 1997. issued February 19, 1975? 97-06. USB EAOC Opinion No. 97-06 Analysis: In 1969 the American Bar Association issued Informal Opinion 1120 which stated that "it is Utah State Bar unprofessional for an attorney to subscribe to credit card plans." That view was reaffirmed in February 1971 by ABA Ethics Advisory Opinion Committee Informal Opinion 1176. However, by 1974 in Formal Opinion 338, the ABA had revisited the issue of attorneys' Opinion No. 97-06 accepting credit cards for fee payments in light of the Approved May 30, 1997 adoption of the ABA Model Code of Professional Responsibility, which had replaced the ABA Canons of Issue: Under the Utah Rules of Professional Conduct, what Ethics. The ABA reversed course and concluded in Opinion are the ethical limitations that govern attorneys' acceptance No. 338 that "the Code has overruled Informal Opinion of clients' credit cards to pay fees and costs? 1176 and that the use of credit cards for the payment of legal expenses and services is permitted under the Code." Opinion: Generally, attorneys may accept payment for fees However, the opinion went on to list six "considerations" to and costs by credit card in the same way that other which a credit card plan was required to conform: merchants and service-providers do. This general conclusion is, in part, in conflict with Utah Ethics Advisory 1. All publicity and advertising relating to a credit card Opinion No. 21, which is accordingly overruled. plan shall be subject to the prior approval in writing of the state or local bar committee having jurisdiction of the Background: In 1975, the Utah Ethics Advisory Opinion professional ethics of the attorneys involved. Committee issued Opinion No. 21, which placed significant restraints on the acceptance of credit cards by attorneys in 2. No directory of any kind shall be printed or published of payment of fees and cost. That opinion was issued under the the names of individual attorney members who subscribe to then-effective Code of Professional Responsibility, which, the credit card plan. among other differences, is at variance with the current Utah Rules of Professional Conduct in the area of attorney 3. No promotional materials of any kind will be supplied advertising. To the extent the world of communicating by the credit card company to a participating attorney about attorneys' services has changed, this Committee has except possibly a small insignia to be tactfully displayed in been asked to revisit the issue of attorneys' acceptance of the attorney's office indicating his participation in the use of credit cards under today's Rules. the credit card. The following specific questions have been asked: 4. An attorney shall not encourage participation in the plan, but his position must be that he accepts the plan for the

1. May an attorney accept cash or a check from a client to convenience for clients who desire it; and the attorney may
   be held against unearned fees or costs when the attorney not because of his participation increase his fee for legal knows that the client obtained the funds through the use of a services rendered the client. credit card?
2. Charges made by attorneys to clients pursuant to a credit
3. May an attorney enter into a retainer agreement with a card plan shall be only for services actually rendered or
   client under which the client gives the attorney a credit card cash actually paid on behalf of a client. number and authorizes the attorney to charge the client's card when fees are earned or costs incurred? 6. In participating in a credit card program the attorney shall scrupulously observe his obligation to preserve the
4. May an attorney suggest to a client that the client use a confidences and secrets of his client.
   credit card to pay attorneys' fees or costs?
   ABA Opinion 338 does not cite any provision of the ABA
5. May an attorney place a notice on bills sent to clients Model Code of Professional Responsibility as support for
   stating that the attorney accepts credit card payments? the "considerations," nor does the opinion cite any provision of the Code as support for any conclusion in the
6. In accepting credit-card payments, must an attorney

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opinion. In representing a client, an attorney shall exercise
independent professional judgment and render candid
The year after Opinion 338 was issued, the Utah State Bar advice. In rendering advice, an attorney may refer not only approved Opinion No. 21, which adopted the conclusion of to law but to other considerations such as moral, economic, ABA Formal Opinion 338: "We concur with Formal social and political factors, that may be relevant to the Opinion 338, and accordingly hold that if those client's situation. requirements [the "six considerations"] are met fully, the use of credit cards for the payment of attorney's services Therefore, economic factors of a client's situation could and charges is proper for members of the Utah State Bar." require an attorney to advise that a client not use a credit Also appended to Opinion No. 21 was a suggested form of card to pay the attorney's fees and services. "Bank Charge Card-Attorney Agreement." As with ABA Opinion 338, Utah Ethics Opinion 21 does not cite any In addition, there is no ethical principle that would prohibit provision of the Utah Code of Professional Responsibility the attorney from passing along any additional costs (the predecessor to today's Utah Rules of Professional incurred in accepting credit-card payment. As with most Conduct) to support the requirements. retail merchants, the attorney or law firm might typically forego this charge. But, if a credit-card company charges Rule 1.5 of the Utah Rules of Professional Conduct deals the attorney, for example, 3% of the gross billings to with fees. The rule does not prohibit credit cards. Just as provide its services, these are legitimate costs that the Opinion No. 21 concluded that "the use of credit cards for attorney may pass on to clients. (This could be a direct payment of legal expenses and services is permitted," Rule charge or could, for example, take the form of a discount to 1.5 of the Rules of Professional Conduct currently permits cash-paying clients of an equivalent percentage. the use of credit cards for payment of legal expenses and services. 5. The Rules of Professional Conduct do not require that the attorney restrict credit card acceptance to those The previous opinions of the ABA and the Utah State Bar instances in which the attorney is billing only for services were written under the prior Canons of Ethics or the Code actually rendered or cash actually paid on behalf of a client. of Professional Responsibility. Attorney advertising was However, if an attorney accepts credit-card payment as an much more limited in those days under the Code of advance of fees or reimbursements, then the attorney must Professional Responsibility than it is today under the Rules comply with Rule 1.15, Safekeeping of Property, and with of Professional Conduct. Since then, court decisions, (fn1) Rule 1.16(d), which deals with refunding any advance combined with the adoption of the Rules of Professional payment of fee which has not been earned, upon Responsibility, have granted attorneys greater freedom in termination of representation. the area of advertising. In light of these changes, the following discusses, in turn, each of the six "considerations" 6. An attorney does have a duty to preserve confidences in listed in Opinion 21. accordance with Rule 1.6, which forbids disclosure of "information relating to representation of a client . . . ,

1. Current Rule 7.2 deals with advertising by attorneys. It unless the client consents after disclosure." The rule has
   does not require "prior approval in writing of the state or been read as being broad enough to protect the client's local bar committee having jurisdiction of the professional identity. (fn2) It is possible that the acceptance of a credit ethics of the attorneys involved." card will reveal to the credit card company that the client has paid an attorney. Therefore, in an instance where the
2. Rule 7.2 does not prohibit attorneys from being included attorney is aware that the client wishes the fact of his being
   in a directory of firms and businesses that accept credit represented by an attorney to remain confidential, the cards. This would not be substantially different from an attorney should alert the client who offers to pay by credit attorney's being included in (or actually advertising in) a card of the disclosure of his name to the credit-card directory of firms and businesses that have a telephone and company to insure that the client consents. accept telephone calls. With this discussion as a foundation, we now address
3. Rule 7.2 does not limit an attorney to a "small insignia to directly the questions raised in this request:
   be tactfully displayed in the attorney's office indicating his
   participation in the use of the credit card." 1. An attorney may accept cash or a check from a client to be held against unearned fees or costs when the attorney
4. Nothing in the Rules of Professional Conduct explicitly knows that the client obtained the funds through the use of a
   requires an attorney to discourage the use of credit card in credit card. payment of fees or services. However, Rule 2.1, Advisor, provides: 2. An attorney may enter into a retainer agreement with a

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client under which the client gives the attorney a credit card
number and authorizes the attorney to charge the client's
card when fees are earned or costs incurred.

3. An attorney may suggest that a client use a credit card to
   pay attorneys' fees or costs.
4. An attorney may place a notice on bills sent to clients
   stating that the attorney accepts credit card payments.
5. In accepting credit-card payments, an attorney has no
   obligation to enter into a bank charge card-attorney
   agreement similar to the agreement attached to Ethics
   Advisory Opinion No. 21. Indeed, we see no reason that the
   relationship between the attorney and the bank or
   credit-card company would be significantly different from
   that between a card company or bank and other providers of
   professional services.
   For the reasons discussed above, this opinion overrules
   Utah Ethics Advisory Opinion No. 21.
   Footnotes
6. See, e.g., Peel v. Attorney Registration & Disciplinary
   Comm'n, 496 U.S. 91 (1990); Shapero v. Kentucky Bar
   Ass'n, 486 U.S. 466 (1988); Zauderer v. Office of
   Disciplinary Counsel, 471 U.S. 626 (1985); In re R.M.J.,
   455 U.S. 191 (1982); Bates v. State Bar of Arizona, 433
   U.S. 350 (1977).
7. Utah Ethics Advisory Committee Op. No. 97-02, 1997
   WL 45141 (Utah St. Bar); see Przypyszny, Public Assault
   on the Attorney-Client Privilege: Ramifications of Baltes v.
   Doe, 3 Geo. J. Legal Ethics 351 (1989) (discussing a
   Florida case where lawyers refused to disclose the identity
   of a client that had allegedly consulted them concerning a
   hit-and-run.) But cf. In re Subpoena to Testify Before the
   Grand Jury (Alexiou v. U.S.), 39 F.3d 973 (9th Cir. 1994)
   (holding that a lawyer had to reveal the identity of the client
   in a counterfeiting case).
   Rules Cited:
   1.57.2