Page 30 - December 2018 | Cleveland Metropolitan Bar Journal

3 See ORPC 1.2(d)(1). For domestic “Know Your Client”
The Nebraska opinion does not address holding an asset for others, there should be guidelines, see https://www.americanbar.org/content/
eTHICS PerSPeCTIve
some of the practical issues embedded in a written agreement signed by the payor, dam/aba/publishing/criminal_justice_section_newslet-
ter/crimjust_taskforce_gtfgoodpracticesguidance.au-
its advice immediately to convert digital the payee, and the lawyer. specifying the thcheckdam.pdf. For an international perspective, see
currency, including selecting the payment terms under which the asset is received https://www.actec.org/resources/fatf-and-the-lawyers-
role/.
processor and identifying who bears any and should be released. In addition, it is 4 Payment of a lawyer’s fees by a non-client requires com-
transaction fee that may be associated advisable to address bears the risk of loss pliance with ORPC 1.8(f ).
with the required conversion. A lawyer or changes in value. 5 Internal Revenue Service Notice 2014-21 (March 25,
who intends to accept a digital currency 2014). https://www.irs.gov/pub/irs-drop/n-14-21.pdf
should address these specifics, as well as Every Practitioner Needs to Know 6 R. Rotunda, “Bitcoin and the Legal Ethics of Lawyers,”
https://verdict.justia.com/2017/11/06/bitcoin-legal-eth-
the lawyer’s intent immediately to convert Something About Digital Currency ics-lawyers.
the currency to U.S. dollars, in her fee A competent lawyer needs baseline 7 See ORPC 1.5(a), (d)(3) and Comment [6A], 1.15(a) and
agreement with the client. knowledge about digital currency even (c) and 1.16(e). Fees deemed “earned on receipt” are a
special case; per Ohio Board of Professional Conduct Op.
if the lawyer or his firm has resolved not 2016-1, such fees should not be deposited into a trust ac-
Holding Digital Currency for Others to accept or hold digital currency for any count, although subject to refund under ORPC 1.5(d)(3)
and 1.16(e).
The Nebraska opinion finds that a lawyer purpose. A practitioner that does any work 8 The Ohio Rule on point is ORPC 1.15.
may hold bitcoins or other digital currency that involves the inventory or transfer of
in escrow or trust for a client or third party assets must consider the possibility that
pursuant to the ethics rules governing a party’s assets include digital currency. Deborah Coleman of Coleman Law LLC
holding property for others. The rule Thus both civil and criminal lawyers, and helps parties in conflict resolve complex
requirements include holding the property those who handle litigation, transactions, business disputes through mediation or
separate from the lawyer’s property, estate planning and probate, insolvency, arbitration. She also provides profes-
safeguarding it and satisfying recordkeeping and domestic relations should educate sional ethics counsel and represents
8
requirements. The opinion suggests several themselves about this form of asset. respondents in grievances. She chaired
possible security precautions, including the ABA Standing Committee on Ethics
encryption of the private key required 1 See, e.g., John Stark Reed, “Why Lawyers Should Nev- and Professional Responsibility, and the
to send the bitcoins, requiring multiple er Accept Their Fees in Crypto-Currency”, https:// CMBA’s Ethics Committee. She has been
www.linkedin.com/pulse/why-law-firms-should-
private keys to access them, or maintaining never-accept-fees-cryptocurrency-john-reed-stark/ a CMBA member since 1977. She can be
the wallet in a storage device that is not (June 5, 2018). Reed is a former Chief, SEC Office of In- reached at dac@dacolemanlaw.com or
ternet Enforcement.
continuously connected to the Internet. 2 https://www.bna.com/law-firms-accepting-n73014464226/ (216) 991-4510. For more information,
As in any situation in which a lawyer is “More Law Firms Are Accepting Bitcoin Payment”, go to www.dacolemanlaw.com.
Corporate on Bloomberg Law 9/6/17.

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