Opinion 90-08
(May 1990)

You have asked for an opinion on the following fact situation. A is a non-lawyer who offers services for a fee as a developer of franchise programs to business people who wish to franchise their businesses. A has engaged you to prepare necessary franchise documents for C, who has engaged A to develop a franchise program for his business. C is to pay A a fee out of which A is to pay your fee. Other than being engaged by A, you have no prior or current relationship with A and work entirely with C with whom you consider you have an attorney-client relationship. C is aware that your fee is to be paid by A. You have completed the legal work for C, who now has a disagreement with A, has terminated his engagement of A, but nevertheless is in need of the work you have done and stands willing and able to pay you your fee directly. A has directed you not to deliver the legal documents you have prepared for C to C, as he wishes to use the withholding of the documents as leverage in his dispute with C. You ask if you may deliver the documents directly to C.

Rule 1.8(f) governs an attorney's conduct when his or her fee is being paid by a person other than the client and provides that:

A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client consents after full disclosure of the circumstances and consultation;

(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

Note that Rule 1.6 governs attorney-client confidentiality.

Applying Rule 1.8(f) to your present situation, it is the Committee's opinion that you are obligated to deliver the documents directly to your client C. To do otherwise would permit an interference with your independent professional judgment as exercised on behalf of your client, which would constitute a violation of Rule 1.8f(2). It is expressly the ill-founded expectation on the part of one who is paying for an attorney's services that somehow providing the fee entitles that person to control the attorney's action as regards the client that is addressed by the Rule. Furthermore the Committee cautions you that to notify A of your delivery of the documents to C without C's express consent would violate your client's confidentiality and Rule 1.6.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.