Getting paid electronically is more relevant than ever in our current pandemic moment. It's no wonder, then, that lawyers have lots of questions about how to get paid without cash or paper checks.
These inquiring legal minds Want. To. Know. And apparently, at least in Florida, they're asking the Florida Bar to help them sort it out.
The Florida Bar Professional Ethics Committee has created a subcommittee to make recommendations - potentially leading to a formal advisory opinion - on online payment services such as PayPal, Venmo, and Apple Pay.
The question of lawyers accepting credit cards is not new. The ABA first explored the issue back in 1969. Of course since then we've seen the emergence of the modern online economy, with billions (maybe trillions?) paid electronically annually online. And the legal profession has progressed right along with it. Most states expressly permit lawyers to accept credit cards, with the remainder simply remaining silent on the topic.
But the electronic payments landscape has marched on. And just as they had questions about the credit cards before them, lawyers now wonder about accepting new payment methods for their services.
While the Bar has empaneled a subcommittee to explore the issues, from where we stand, Florida Bar Ethics Counsel Elizabeth Tarbert already answered the question:
“'If the payment is to the lawyer for fees and costs that the lawyer has already earned and advanced and it is the lawyer’s money, it doesn’t matter,' Tarbert said. 'The only time…the rules are going to apply is if the lawyer or third party is offering payment to the lawyer and the [payment] does not belong to the lawyer' such as advance payment for fees or costs, receiving settlements, monies to be held in trust, or other such transactions."
We couldn't agree more and that's why - though we're hardly biased on the topic because, well, we sell payment processing to lawyers - lawyers should use a legal-specific payment processor. PayPal, Venmo, GPay, Apple Pay are all great for your run-of-the-mill small business accepting payment for drinks, or dinner, or yoga classes, or whatever. But those businesses don't have or use trust accounts. And, as a result, they don't have the same obligations that lawyers do related to the protection and electronic acceptance of trust funds.
The ethics rules regarding safekeeping property and the associated trust accounting rules are fairly central to the legal ethics framework. As a result, we think it's pretty unlikely that this committee will introduce anything particularly new.
So, can lawyers accept Venmo, Apple Pay, or GPay? (PayPal's been around since 1999 so I'm not going to add them to this list.) Sure. Does using them introduce risk of a trust account violation. Absolutely.