The fictional attorneys Franklin “Foggy” Nelson and Matt Murdock have the very real world problems with running a small law firm. Real attorneys every day have clients who cannot afford paying their legal bills. This has negative consequences on the operational costs of running a firm, from practice management software, to online legal research, to making payroll. While alternative fees are good, it is extremely difficult to keep the lights on when clients pay in bananas.
Nelson & Murdock have a serious ethical issue with how they conduct client consultations. Karen Page identifying each prospective client in the waiting room, publically disclosing each individual’s legal problem, potentially is a violation of a New York attorney’s duty of confidentiality to a prospective client.
New York’s Rules of Professional Conduct, Section 1.18(a) state that “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a “prospective client.” Every person in the waiting room of Nelson & Murdock had disclosed information to the Karen Page for the possibility of representation by Nelson & Murdock. Those communications arguably would have been protected under Section 1.18(b) from disclosure. Moreover, both Foggy Nelson and Matt Murdock had a duty to supervise Karen Page as a non-lawyer under New York’s Rules of Professional Conduct, Section 5.3, in how she maintained that information.
The New York State Bar Association Ethics Opinion 1067 addresses the duty of confidentiality to prospective clients under New York’s Rules of Professional Conduct, Section 1.18(b). The Opinion defines the test for confidentiality as follows:
Whether the prospective client’s identity, the fact of the consultation, and the subject matter of the consultation constitute confidential information turns on whether the information is protected by the attorney-client privilege, on whether disclosure likely would be embarrassing or detrimental to the prospective client, and on whether the prospective client has asked the lawyer not to disclose the information.
Foggy Nelson and Matt Murdock should both discuss the importance of confidentiality with Karen Page for prospective clients. Whether or not there was an ethical violation would turn on each individual client. It is a smart practice to not create legal risk where there would otherwise be none.
As to the matter of attorney’s fees, there is nothing in Rule 1.5 that would prohibit Nelson & Murdock being paid in pies as “excessive” legal fees (except as to calories). However, while pies are extremely tasty at accounts receivable meetings, they do not pay any bills.