Formal Ethics Opinion on BP Claims Issued

Most of us would like to forget the Deepwater Horizon explosion and oil spill, and all of the damage done to the Gulf of Mexico as a result. Unfortunately, the claims process for compensating those who live on the gulf or depend on it for their livelihood continues, and some of the ways in which this process is playing out present potential ethical issues for Alabama attorneys. As a result of many calls and questions to the Office of General Counsel, the Disciplinary Commission has recently issued Ethics Opinion 2013-01 which states that the sharing of a legal fee with a non-lawyer while prosecuting a BP claim violates Rules 5.4(a), 5.5 and 7.2 of the Alabama Rules of Professional Conduct.

Read the entire opinion. It’s short and easy to follow. The pertinent points are the following:

  • The filing or prosecution of BP claims on behalf of another constitutes the practice of law.
  • It is impossible for a non-lawyer to assist an Alabama claimant in the BP Claims Program without having to communicate and explain the Settlement Agreement and the BP Claims Program as well as the rights and obligations of the parties.
  • The Claim Form required by this process becomes a part of an official record and has a potentially prejudicial effect on the claimant’s rights under the Settlement Agreement, and is the basis upon which the Court appointed Claims Administrator determines qualification, eligibility, and compensation.
  • An attorney in violation of Rule 5.4(a) by virtue of such impermissible fee-splitting would also be guilty of violating Rule 5.5 which prohibits a lawyer from assisting another in the unauthorized practice of law.
  • While an attorney cannot share a fee with a non-lawyer or assist a non-lawyer in the unauthorized practice of law, an attorney may employ the services of an accountant or other professional to assist in supporting or proving the client’s case; however, the attorney may not split or share any contingency fee with the non-lawyer as a means of compensating the non-lawyer for their services.
  • Pursuant to Rule 1.5(c), any contingency fee between an attorney and the client must be in writing. Further, an attorney may not be hired by an accounting firm on a contingency basis to prosecute the claims of its clients. The attorney’s client must be the person or business for whom the BP claim is being prosecuted and the attorney should have a contract clearly stating this arrangement with each client.
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