伦理意见345

Reimbursement of Interest Charges Incurred When a Lawyer Uses The Firm's Line of Credit to Advance the Costs of the Representation

A lawyer who uses the firm’s line of credit to advance to a client the costs of the representation will incur interest charges from the bank in doing so. 澳门赌场官网可能会把这些费用转嫁给委托人, 只要客户事先被充分告知这些费用, 客户已经同意支付他们, 费用合理, and the lawyer maintains a separate accounting of the interest charges incurred for that client. 最后, the costs of the line of credit must be directly attributable to the representation of that client; in other words, the lawyer may not pass on to individual clients the costs of maintaining a line of credit used to fund the firm’s general overhead expenses.

适用的规则

• 规则1.5(费用)
• 规则1.8 (d)(利益冲突:具体规则)

调查

在人身伤害案件中, 复印会产生费用, 订购证词笔录, 诉讼费, 对于专家证人, 以及与起诉案件有关的类似支出. The firm representing a party is contemplating using the firm’s line of credit to pay for such costs, 但它必须为此支付银行利息. The firm has inquired whether it may pass on to the client at the end of the case the charges for the interest incurred.

讨论

There are two alternatives to this proposed arrangement: either the client will have to pay for these disbursements as they are incurred or the firm will have to absorb these additional costs, 很可能会通过增加费用来转嫁给所有客户. 如果客户必须支付这些费用, 客户可能不得不借钱来做这件事, 在这种情况下，客户将直接支付利息费用. 规则1.第8(d)条允许澳门赌场官网向客户预付诉讼费用, 但他们并没有被要求这样做. 因此，这两种选择都不是《澳门赌场官网》所要求的.

If a lawyer uses his or her credit line to operate a law office or to fund normal operating expenses, 澳门赌场官网不能将由此产生的利息转嫁给个别客户. 然而, requiring a client to pay for the costs incurred in prosecuting his or her case is clearly allowed by the 规则. 注释[2]to D.C. 规则1.5 specifies that a lawyer may seek payment from the client for expenses including filing fees, 复制成本, 还有成绩单费用. D.C. 规则1.第5(b)条规定，当澳门赌场官网未定期代表委托人时, 这些费用应告知客户, 以书面形式, 在开始陈述之前或之后的合理时间内.” By setting forth the charges for which the lawyer or his or her firm will seek payment by the client, the lawyer provides the client with a clear understanding of the lawyer’s costs and allows for discussion of these terms at the outset of the attorney-client relationship.

Neither the 规则 nor the Comments specifically mention reimbursement of interest costs. Some threshold concerns about seeking reimbursement of these charges from clients are not implicated here. 例如, the inquirer has already specified that the firm will not be making a profit on the advancement of the payments for costs incurred. 而, it will seek only to recover the costs of the interest the bank will charge the firm for using the firm’s line of credit to cover them.

这项调查引发了相互竞争的利益. 一方面，一方面, allowing lawyers to pass on the carrying costs of such charges to individual clients ensures that the firm’s other clients are not paying these charges through increased fees. 另一方面, 因为许多公司和澳门赌场官网维持信用额度来支持他们的业务, it is not appropriate for some of a lawyer’s clients to bear indirectly certain overhead expenses that appropriately should be absorbed by the lawyer or spread fairly among all the lawyer’s clients.

Because a lawyer may only charge the client the amount of interest directly attributable to that client’s case, the lawyer must maintain detailed accounts of the amount of any advance and the interest charged by the lender and attributable to the client’s costs. 尽管规则没有要求, a lawyer may wish to maintain a line of credit for the advancement of such costs that is separate and apart from the line of credit on which the lawyer regularly draws for purposes of paying overhead expenses.

除了, 向客户收取的任何利息必须合理, and the lawyer“ will have the burden of establishing the reasonableness” of such charges. 此外, it is clearly improper for a lawyer to pass onto the client any late fees or account maintenance costs that result from the lawyer's inefficient or imprudent financial management of the line of credit.

最后, any fee agreement with a client that would include interest costs should be made at the beginning of the representation. 意见310, the Committee reviewed the question whether a lawyer could charge interest on its fees if the client did not pay them promptly. 看到 D.C. 道德Op. 310 (2002). The Committee noted that the payment of interest resulted in charges only to the client directly affected and thus allowed the lawyer to avoid “upward fee pressures” caused by spreading the additional costs associated with late payment of fees to all of his or her clients. 在该意见中, the Committee noted that changing the fee agreement in an ongoing representation in order to include these charges is subject to “strict scrutiny” because of the possibility of “overreaching” by the lawyer. Id. (引用 追逐v. 吉尔伯特, 499 A.2d 1203, 1209 (D.C. 1985)) (“What may constitute overreaching in particular circumstances is of course dependent on such factors as the resources and sophistication of the client, the presence or absence of such external factors as a favorable litigation schedule that would be lost if the client had to change counsel, 等等......。.”). So, 只要有可能, 澳门赌场官网应当在代理开始时说明, should it be necessary for the lawyer to draw on a line of credit to pay for litigation expenses, 客户负责支付相应的利息费用.

出版日期:2008年7月