A lawyer may trade legal services for something other than money. However, before bartering with a client, the lawyer must assure compliance with the rules of professional conduct.
A recent ethics advisory opinion notes that “[b]arter agreements are business transactions between a lawyer providing legal services and a client providing goods or services.” As a result, a lawyer entering into such a transaction must comply with Rule 1.8, which prohibits business transactions with a client unless certain prerequisites are satisfied. See N.H. Bar Assoc. Ethics Cmte. Adv. Op. 2017-18/01 (2017).
Under Louisiana Rule of Professional Conduct 1.8(a), a lawyer may not enter into a business transaction with a client unless the following prerequisites are satisfied:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
La. Rules of Prof’l Conduct r. 1.8(a). Ordinary fee agreements typically do not constitute “business transactions with clients” for purposes of Louisiana Rule 1.8(a). Unusual fee arrangements, however, can implicate this rule. See In re Curry, Spillers & Theus, 16 So. 3d 1139 (La. 2009); see also In re Brown-Mitchell, 167 So. 3d 545, 556 (La. 2015) (lawyer violated rule 1.8(a) by entering into an agreement with the client to live in half of the client’s property and to rent out the remaining portion). A barter agreement is “unusual” enough to require a Louisiana lawyer to comply with Rule 1.8(a).