New Hampshire Bar Finds Lawyer-Client Bartering is a Business Transaction

A recent opinion published by the New Hampshire Bar Association Ethics Committee finds that legal fee bartering is a business transaction with a client subject to ABA Model Rule 1.8(a) requirements, which apply a reasonable standard and include a thorough discussion with the client, the suggestion that the client seek advice from another lawyer, and written consent.

In the opinion, the committee defines bartering agreements as an agreement whereby a lawyer provides legal service and the client provides goods or services in place of a fee. The opinion rejects the idea that bartering agreements are standard commercial transactions, which are exempt from the requirements of Rule 1.8(a). The comments to Rule 1.8(a) explain that standard commercial transactions are exempt because “the lawyer has no advantage in dealing with the client.” Further, The Restatement (Third) of the Law Governing Lawyers, explains that in a commercial transaction a client does not need special protection.

The committee noted that The Restatement provides that “[a] lawyer may not participate in a business or financial transaction with a client, except a standard commercial transaction in which the lawyer does not render legal services.” Because barter transactions between a lawyer and a client “[do] involve the rendering of legal services, [they] cannot fall within the safe harbor of the standard commercial transaction.”

Therefore, an attorney who wishes to accept goods or services instead of a fee from a client will have to comply with the provisions of Rule 1.8(a).

Read the full opinion here.

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