Ethics Opinion 120

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #120 – 10/30/1969 (24-69)

Topic: Billing practices
Digest: Attorney should bill client for whom specific services were performed

QUESTION

An attorney is retained by a building contractor to obtain a zoning variance. The client had engaged a subcontractor to do part of the work and the subcontractor’s agreement provided that he would pay the cost of obtaining all necessary permits, including the zoning variance. The attorney asks whether it is proper for him to bill the client rather than the subcontractor for his services.

OPINION

The answer to the inquiry depends upon whether the contractor or the subcontractor was the client. If the subcontractor retained the attorney to obtain the zoning variance, the bill should be sent to the subcontractor who had assumed the obligation of carrying out that part of the work. On the other hand, if the attorney was retained by the contractor, the bill should be sent to him, even though he is entitled to reimbursement from the subcontractor. In the latter case, it maybe that as a matter of law the lawyer has a direct cause of action against the subcontractor as third party beneficiary of the subcontractor. In that case, it would not be improper, if the contractor fails to pay, for the attorney to assert his claim directly against the subcontractor.As long as no conflict of interest exists, the attorney may represent the contractor on some matters and the subcontractor on others and bill the client for whom the services were rendered.

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