Bartering For Your Services
November 2008
We all get that call from a friend. "Hey, sorry to bother you, but I got a little legal problem and could really use your help."
That little legal problem usually is the most emotional fight of the year, over the smallest amount of money, and takes more hours than the caller ever imagined.
An attorney friend of mine would always say yes and then send a bill. One time a response came, "I got your bill, but I thought you were just doing this to help me out." The lawyer responded, "No problem George." George was in the furniture business. "Are you open today?"
"Yes."
"Okay. My wife wants a new couch, so I'll come down and pick one out."
"Oh. How about I just mail you a check?"
That's good, because it's easier to survive when we get paid for legal services. But can we opt for the couch? Is it okay to barter your services?It depends. For the couch, yes. For services on the couch, perhaps not.
In September, an Illinois lawyer received a 15-month ARDC vacation for arranging to have a female client perform nude dances for him in exchange for credit on her legal fees. In re Scott Robert Erwin Commission, No. 04 CH 114.
As the story goes, a woman was dancing for him at a "gentlemen's club" when he realized, through a discussion, that he had previously done legal work for her.
Through a discussion?
"You know sweetie, there is something about you ... I can't put my finger on it ... Yes, yes, it's your voice. I recognize your voice from a time I did legal work for you. Oh, and here's a dollar."
That must have made her feel good.
Turns out she had more legal problems and he tells her to make an appointment. She explains that she doesn't have much money. (Is it a wonder if all he was thinking about was her voice?) He thus agrees to give the dancer credit on bills for his legal work in exchange for her working on the dance routines in his office.
Apparently he went too quickly from barter to garter and she resented the advances. He was hit with multiple ARDC violations, starting with Rule 8 misconduct.
A lawyer shall not: commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects (8.4(a)(3)); engage in conduct involving dishonesty, fraud, deceit or misrepresentation (8.4(a)(4)); or engage in conduct that is prejudicial to the administration of justice (8.4(a)(5)). 134 Ill. 2d R. 8
He was further charged with violating Rule 1.7(b), which states that a lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to ... [his] own interests. 134 Ill. 2d R. 1.7(b).
Then the circuitous Rule 1.16 -- failed to withdraw when he knew or reasonably should have known that he was violating the rules.
"Rule number 1, Otis, obey all rules." B. Fife.
Maybe he got his idea from the Las Vegas mechanic who wrote: "Barter my mechanic service for erotic service. I figure instead of paying you ladies with cash it would be better to trade. I'm looking for all legal types of entertainment that a person would receive at a call service."
Those at the call service probably just run this through their legal department for a quick memo on what's okay for mechanics.lasvegas.craigslist.org/bar/867011879.html.
For lawyers, it was spelled out pretty clearly by the Illinois Supreme Court in In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909, 222 Ill. Dec. 375 (1997): sexual conduct with clients is improper.
But you can barter for other goods, and Craigslist is full of interesting items lawyers are willing to take in exchange for payment.
A Philly attorney will be happy to work for an Audemars Piguet Royal Oak watch, a 1967 Corvette or Maserati Bora, or an Accuracy International AW sniper rifle. Oh sure, take the obvious ones. philadelphia.craigslist.org/bar/848450610.html.
One New York lawyer seemed like he needed to get out of town. "I'm willing to barter my legal services for a decent running and looking, late model passenger van, or similar vehicle that can transport eight people." newyork.craigslist.org/mnh/bar/861799227.html.
A Baton Rouge attorney specializing in divorce is looking to barter for a one-bedroom apartment. batonrouge.craigslist.org/lgs/8529 48125.html. Hmmm.
If you do decide to go the barter route, remember, it is taxable. The fair market value of goods and services exchanged must be included in the income of both parties.irs.gov/taxtopics/tc420.html.
The guiding principle, no matter how we are paid, is that we have an ethical obligation to at all times act in the client's best interest. The representation cannot be materially limited by the lawyer's own interests. So, whether the client is late with the bill or you're sent the wrong sniper rifle, you put the clients' interests first.
It's what sets our profession apart from many. And it's why so many of us take that call. dheilmann@clausen.com
