Does a lawyer have to tell clients about frequent-flyer miles earned on travel that the clients pay for as litigation expenses?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer enrolled in airline frequent-flyer programs earned free tickets after flying enough miles. The cost of the flights generating the miles was billed to clients as litigation expense, and no additional cost to the clients was incurred in accruing the miles. The benefit from any single ticket was nominal, but the accumulated miles could add up to substantial value. The lawyer asked whether benefiting personally from using one service provider over another was unethical.
The committee started from DR 2-106(B), which requires that a lawyer charge only a reasonable fee. It read that provision to extend to expenses incurred on a client's behalf, which must also be reasonable, and held that the client should receive the information needed to judge whether the expenses are reasonable. The committee said it would be unethical for a lawyer to select a more expensive flight in order to accumulate miles, conduct that would also violate DR 5-107(A)(2), which bars a lawyer from accepting anything of value related to the representation from someone other than the client without the client's consent after full disclosure.
Because the situations that could generate an economic benefit vary widely, the committee declined to set a single fixed rule and instead made disclosure depend on two factors, assuming no added cost to the client. First, if the benefit is more than de minimis and is one the client could claim, the lawyer should advise the client of its availability (for example, by discussing whether the client wishes to pay for travel directly and obtain the miles). Second, if the benefit is not available to the client but is significant enough that it could potentially influence the lawyer's selection of the service provider, its existence should be disclosed. Disclosure lets the client assess the reasonableness of the expense and avoids any appearance that the lawyer chose the provider based on the benefit rather than the client's needs.
Currency note
This opinion was issued in 1994, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer keep frequent-flyer miles earned on travel billed to a client?
A: The committee did not bar keeping the miles outright, but conditioned it on disclosure. If the benefit was more than de minimis and the client could have claimed it, the lawyer was to tell the client; if it was large enough to potentially influence the lawyer's choice of provider, the lawyer had to disclose it.
Q: When does the benefit have to be disclosed to the client?
A: Under the opinion, disclosure was required when either the client could claim the benefit (and it was more than de minimis) or the benefit was significant enough to have the potential to influence the lawyer's selection of the service provider.
Q: Is it ever improper to choose a provider to earn the benefit?
A: Yes. The committee said selecting a more expensive flight for the purpose of accumulating miles would be unethical and would violate DR 5-107(A)(2), which addresses outside benefits that could affect the lawyer's independent judgment.
Background and rules framework
The opinion applied DR 2-106(B) (reasonable fee, extended by the committee to reasonable expenses), corresponding to Model Rule 1.5, and DR 5-107(A)(2) (accepting value from a third party related to the representation only with the client's consent after full disclosure), corresponding to Model Rule 1.8(f). The committee framed the issue as one of both fee/expense reasonableness and protection of the lawyer's independent professional judgment.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.5 / DR 2-106(B) (reasonable fees and expenses)
- Model Rule 1.8(f) / DR 5-107(A)(2) (value received from a third party related to the representation)
Other opinions cited:
- BBA Ethics Opinion 93-4 (Boston Bar Association response to the same inquiry, reaching a somewhat different interpretation)
See also
- MA Bar Ethics Op. 95-2: Non-refundable retainers barred
- MA Bar Ethics Op. 94-4: Contingent fee to collect child support
Source
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