105 N.J.L.J. 441
May 15, 1980
Bar Foundation Legal Services Financing
Plan Reversing Prior Opinions 115 and 180
The New Jersey State Bar Association has submitted a proposed
plan for the financing of legal fees. In broad outline the plan
contemplates that the New Jersey State Bar Foundation as sponsor
will enter into an agreement with one or more financial
institutions in the State whereby legal services may be financed
for clients of attorneys who participate in the plan.
The procedure is essentially as follows. An attorney who wishes to participate enters into an agreement with the bank which provides the basis for the bank to accept contracts for fees from the attorney. A client wishing to finance his fee fills out a credit application which is submitted to the bank. If the bank approves the credit, the attorney and the client enter into a contract for the fee and the contract is assigned by the attorney to the bank. The bank pays the attorney the amount of the fee specified in the contract less a discount and thereafter collects
the amount due plus interest from the client. The bank also pays to the Bar Foundation 5% of the gross amount financed. The contract between the attorney and the bank provides among other things for the circumstances under which the attorney will be obligated to repurchase from the bank a fee contract assigned to it, the principal circumstance relating to a dispute between the attorney and the client as to services rendered.
In 1966 one of the county bar associations submitted to this Committee a proposed legal services financing plan not unlike the one now being considered. This plan was referred to as the Erie County, New York Plan. That plan had received the award of merit from the American Bar Association and was also presented to the Committee on Professional Ethics of the American Bar Association, but at the time our Opinion 115, 90 N.J.L.J. 681 (1967), was issued, no opinion had been rendered by the American Bar Association. In Opinion 115 we said the plan should be disapproved, not so much because it violates any particular canon of ethics, but because it connotes the commercialization of the practice of law. "A lawyer is not a tradesman and therefore he should not be a retail seller of his services." Subsequently to the adoption of Opinion 115, we had equation to consider an inquiry from the New Jersey State Bar Association which submitted essentially the Erie County Plan in slightly revised form. Once again we disapproved the plan, Opinion 180, 93 N.J.L.J. 481 (1970). At about the same time we also issued our Opinion 175, 93 N.J.L.J. 132 (1970), disapproving the use of credit cards in payment of clients' bailiwick essentially for the reasons expressed in Opinion 115. Later Opinion 293, 97 N.J.L.J. 929 (1974), disapproved of attorneys' demanding interest on clients' accounts.
Since the adoption of Opinions 115, 175 and 180 many changes have occurred which bear on the propriety of participation in a legal services financing plan. Not long after Opinion 115 was published, the American Bar Association's Standing Committee on Ethics and Professional Responsibility did have occasion to consider the Erie County Plan. It reviewed all the pertinent canons, considered the commercialization aspect of such plan and concluded that it is not per se unethical for an attorney to participate in a plan of this nature sponsored by a bar association.See footnote 1 1 The opinion of the American Bar Association Committee quotes at length from a Los Angeles Bar Association Committee opinion disapproving a similar plan, referring to that opinion as the best statement of the objections to the plan. In essence the principal objection of the Los Angeles County Committee was the same as ours in Opinion 115, namely that of commercialization of the practice of law. Nevertheless, the American Bar Association, after noting some distinguishing features of the Los Angeles County Plan, concluded that the plan before it should be approved. In the mid-1970's other changes came quickly. The legal profession was held to be subject to the antitrust laws of the United States. Goldfarb v. Virginia State Bar Association, 421 U.S. 773, 95 S.C. 2004, 44 Law Ed. 2d 572 (1976); advertising was permitted, Bates v. State Bar of Arizona, 433 U.S. 360, 97 S.C. 2691, 63 L. Ed. 2d 810 (1977); and the New Jersey Supreme Court promulgated rules covering advertising by New Jersey attorneys, DR 2-101, et seq. The Legislature of New Jersey authorized the use of credit cards by lawyers, N.J.S.A. 17:16C-1 et seq.; the Supreme Court of New Jersey advised our Committee in March 1978 that Opinion 293 and every authority to the contrary were modified or vacated; and we have approved participation in a nationwide prepaid legal services plan, Opinion 383, 100 N.J.L.J. 1206 (1977).
We conclude that our Opinions 115 and 180 can no longer stand scrutiny and should be reversed. While the proposed plan no doubt advances the commercialization of the practice of law with such terms as buy-sell agreements, discounts, franchises, retail installment contracts and the like appearing throughout the plan,
nevertheless we agree with the American Bar Association that it is the duty of the profession to utilize such methods as may be developed to bring the services of its members to those who need them so long as this can be done ethically and with dignity. As society changes, these methods must necessarily change; otherwise the profession will become dormant and static and fail to fulfill its proper function. Accordingly, participation of attorneys in this plan sponsored by the New Jersey State Bar Foundation is approved. We express no opinion on the merit of the details of the plan other than to say there do not appear to be any ethically improper provisions in the plan submitted to us.