Can a lawyer let the opposing party pay the fee for the work the lawyer does for his own client?

Plain-English summary

The inquiry described X, an attorney for a party seeking an easement across Y's land, and Z, Y's attorney. After Y referred X to Z and told Z to get as much as he could for the easement, X (with Y absent) offered a given amount and advised Z that X's client was willing to pay a fee, amount unstated, to cover the services Z would render Y in checking the easement agreement and related documents. The questions asked whether Z's accepting that offer, and X's making it, were ethical, and whether the easement's value or X's client being a corporation with eminent-domain power changed the result.

The Committee concluded that Z's acceptance of the offer to have X's client pay for Z's services to Y is unethical conduct unless Z makes full disclosure of the facts to Y and secures Y's express consent to that fee arrangement; without full disclosure and express consent, it would violate Canons 6 and 35 (9-0). It concluded there was no breach on X's part under the facts, assuming full disclosure was made to Y and he agreed (9-0). The Committee answered that neither the value of the easement, whether nominal or substantial, nor X's client being a corporation with the power of eminent domain would materially change the result (9-0 on each).

Currency note

This opinion was issued in 1958, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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 the other side pay my client's legal fee?

A: The Committee concluded a lawyer may accept the opposing party's payment of his fee only if he makes full disclosure to his own client and secures the client's express consent; otherwise it violates Canons 6 and 35.

Q: Is it improper for the opposing lawyer to offer to pay the other side's fee?

A: The Committee concluded there was no breach by the lawyer who made the offer, assuming full disclosure was made to the client and the client agreed.

Q: Does the size of the deal or the payer being a condemnor change the answer?

A: No. The Committee concluded that neither the easement's value nor the offering client being a corporation with eminent-domain power would materially change the result.

Background and rules framework

The opinion interprets former Texas Canons 6 (conflicting interests) and 35 (intermediaries between client and lawyer), as applied to an opposing party offering to pay a lawyer's fee. The modern analogs are ABA Model Rule 1.8(f) (a lawyer may accept compensation from one other than the client only with the client's informed consent and no interference with independence) and Model Rule 1.7 (conflict of interest, current clients).

Citations and references

Rules of Professional Conduct:

• MR 1.8(f) (compensation from a third party), as the modern analog
• MR 1.7 (conflict of interest, current clients), as the modern analog
• Texas Canons 6 and 35 (former canons on conflicting interests and intermediaries)

See also

• TX Ethics Op. 179: Insurance Defense Counsel's Duties to the Insured
• TX Ethics Op. 176: Suing One Contract Party After Drafting for Both
• TX Ethics Op. 184: Conflicts of Interest in Public Employment

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-166/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_166.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

X, an attorney, represents a party interested in obtaining an easement across Y's land. Z is Y's attorney. On being approached by X Y refers him to Z as his attorney. Y contacts Z and asks him to get as much as he can for the easement. On contacting Z, Y not being present, X offers a given amount for the easement. X also advises Z that X's client is willing to pay a fee, the amount not being stated, to cover the services that Z will render to Y in checking the easement agreement and any other pertinent documents or instruments.
Would Z's acceptance of X's offer to pay for the services which Z is to render Y constitute unethical conduct on Z's part?
Has there been a breach of ethics on X's part?
Would the value of the easement, i.e. whether nominal or substantial, change the result materially?
Would the result change materially if X's client is a corporation with power of eminent domain?

18 Baylor L. Rev. 267 (1966)

CONFLICTING INTERESTS - COMPENSATION - PAYMENT OF FEES BY OPPOSITE PARTY
The prohibition against conflicts of interest precludes an attorney who represents a landowner from accepting an offer by a party interested in obtaining an easement across the owner's land, made through his counsel, to pay for the services the attorney will render to the owner during the transaction unless he makes full disclosure to the owner and secures his express consent to the offered fee arrangement.

Canons 6. 35.

The committee is of the opinion that the question should be answered "Yes." Z's acceptance of X's client's offer to pay for the services which Z is to render Y constitutes unethical conduct on Z's part, unless Z makes a full disclosure of the facts to Y and secures Y's express consent to the payment of Z's fee by X's client. If the full disclosure is not made and express consent of Y obtained, then there would be a violation of Canons 6 and 35 of the State Bar. (9- 0)
The committee is of the opinion that this question should be answered "No" under the facts set forth in the question, assuming that a full disclosure has been made to Y and he agrees thereto. (9-0)
The committee is of the opinion that this question should be answered "No." (9- 0) 4. The committee is of the opinion that this question should be answered "No." (9- 0)

Tex. Comm. On Professional Ethics, Op. 166 (1958)