Opinion 410

Statement of Facts Discussion Conclusion

Bartering in a one-on-one situation has been practiced throughout history and has been and remains ethically permissible for attorneys. The new form of barter associations, however, presents a number of ethical problems. The barter association promises to provide its attorney members with a certain level of business or refund their fees and dues. This guarantee violates DR 2-103(E): "A lawyer shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of his services . . . ." The barter association does not meet the requirements of any of the exceptions to this disciplinary rule. In fact, one of the association's rules and regulations provides for a bonus to members who introduce and sponsor new members.

Participation in the barter association also violates DR 2-103 (C) which bars a lawyer from giving anything of value to an organization to recommend or secure his employment. The entire thrust of the barter group here is to promote the use of its members services. The more business generated among its members, the more profit the barter organization makes. The membership fee, annual dues, and percentage fee on each transaction, which an attorney member would be required to pay, must all be considered as the giving of value to secure employment.

Additionally, the percentage charge on each transaction may involve an impermissible sharing of legal fees with a non-lawyer. DR 3-102.

ABA Informal Opinion 1430 mentioned several other problems with a bartering exchange organization, including: (1) The rules of the exchange do not contemplate the duty of an attorney to refuse employment in some circumstances as expressed in EC 2-30 and DR 2-109. Since fees paid to the exchange by a lawyer member are based upon the employment of the lawyer by other exchange members and since the lawyer's membership is subject to cancellation or recall by the exchange . . . the lawyer may not have sufficient freedom in refusing a member's case. (2) Another possible problem could arise in the termination of a lawyer as a member of the exchange. e.g., does the lawyer have a duty to continue with the representation of an exchange member/client or can he withdraw? (3) There are also potential conflict of interest problems depending upon the definition of the lawyer's relationship with the exchange and its members. e.g., can the lawyer represent an exchange member against the exchange, a member against another member, or a nonmember against a member? ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1430 (1979).

Since the answer to the initial question is no, the Committee does not address the second question.

Bartering on a one-to-one basis is ethically permissible. However, participation in a barter association in which the attorney would exchange his services for barter units that would then be used to obtain goods or services from other members of the association, with a percentage on all purchases being paid to the association, is ethically improper. The committee does not address whether a bartering organization may be devised that would satisfy the requirements of the Code of Professional Responsibility. (9-0.)