April 17, 1973
Ethics Opinon 1973-7
SUBJECT: EMPLOYMENT BY A UNION; MINIMUM FEE SCHEDULE
An attorney is about to be retained by a Union in order to handle its members' legal problems, and he will charge not more than the Minimum Bar Fee Schedule. May the attorney ethically be so retained?
Yes and no. The attorney may be retained by a Union in order to handle its members' legal problems, provided Rule 20 of the Rules of Professional Conduct of the State Bar of California is complied with; however, the attorney may not establish fees with respect to the Bar Association's Minimum Fee Schedule since it has been abolished.
Rule 20 of the Rules of Professional Conduct of the State Bar of California provides:
"Rule 20. Provision of legal services pursuant to group arrangement. The furnishing of legal services by a member of the State Bar pursuant to an arrangement for the provision of such services to the individual member of a group, as herein defined, at the request of such group, is not of itself in violation of Rules 2 or 3 of these Rules of Professional Conduct if the arrangement:
(1) permits any member of the group to obtain legal services independently of the arrangement from any attorney of his choice.
(2) is so administered and operated as to prevent
(a) such group, its agents or any member thereof from interfering with or controlling the performance of the duties of such member of the State Bar to his client,
(b) such group, its agents or any member thereof from directly or indirectly deriving a profit from or receiving any part of the consideration paid to the member of the State Bar for the rendering of legal services thereunder,
(c) unlicensed persons from practicing law thereunder, and
(d) all publicizing and soliciting activities concerning the arrangement except by means of simple, dignified announcements setting forth the purposes and activities of the group or the nature and extent of the legal services or both, without any identification of the member or members of the State Bar rendering or to render such services.
"Nothing in this rule shall prohibit a statement in response to individual inquiries as to the identity of the member or members of the State Bar rendering or to render the services giving the name or names, addresses and telephone numbers of such member or members.
"As used in this rule a group means a professional association, trade association, labor union or other nonprofit organization or combination of persons, incorporated or otherwise, whose primary purposes and activities are other than the rendering of legal services.
"A member of the State Bar furnishing legal services pursuant to an arrangement for the provision thereof shall advise the State Bar thereof within 60 days after entering into the same. Thereafter he shall advise the State Bar, on forms provided by it, of the following matters: the name of the group, its address, whether it is incorporated, its primary purposes and activities, the numbers of its members and a general description of the types of legal services offered pursuant to the arrangement. Annually on January 31, he shall report to the State Bar, on forms provided by it, any changes in such matters, and the number of members of the group to whom legal services were rendered during the calendar year. Each report filed pursuant hereto and the information contained therein, except the name and address of the group, the fact that it has an arrangement for the provision of legal services and the names of members of the State Bar providing such services shall be confidential."
As can be seen, Rule 20 contains rather specific provisions governing relationships between a group, such as a union, and the attorney with whom an arrangement is entered for the provision of services to its members. So long as the requirements of Rule 20 are met, such an arrangement would be ethically proper.
MINIMUM BAR FEE SCHEDULE
On January 5, 1973, the United States District Court, Eastern District of Virginia in Goldfarb v. Virginia held the Minimum Bar Fee Schedule of the Fairfax County Bar Association to be illegal in violation of the Sherman Act, 15 U.S.C. Sec. 1. Shortly thereafter, in February, 1973, the Board of Directors of the San Diego County Bar Association abolished the Recommended Minimum Fee Schedule which it adopted on February 8, 1971. Accordingly, any reference to the fee schedule would be considered improper, since it no longer exists.
Rule 20 of the Rules of Professional Conduct of the State Bar of California govern the arrangements that may be made between attorneys and unions for the representation of union members. The Rule is detailed and the attorney can determine whether or not his proposed arrangement complies with the Rule. However, with respect to the use of the Minimum Bar Fee Schedule, it is this writer's opinion that with the abolition of the Schedule, no reference to it or usage of it would be proper.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: This opinion was reviewed on July 16, 1976. Nothing has been found to change the conclusion of this Opinion. It should be noted however that the paragraph of Rule 20 which defines the meaning of "group" now includes some new language but only to the extent that the "group" also includes employees of a single employer. Rule 20 is now Rule 2-104(D).
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.