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For our second installment of "Ethical Dilemma of the Week," we address a situation that many BigLaw associates may have wondered about.
You're flying somewhere on a client matter. The client is ultimately paying the bill, but the firm bought the airline tickets (or you bought them with your "rewards" credit card), and you entered your frequent flyer number so you can rack up those awesome miles and get an upgrade to Business Plus/First Class Minus, where there are a few more precious centimeters of leg room.
But the client's paying. Are those the client's miles, or yours?
The Boston Bar Association, Oklahoma Bar Association, and Massachusetts Bar Association all agree: They're your airline miles. But because we're lawyers, there are some asterisks attached to that, of course. (What, you thought this answer was going to be simple?)
The Massachusetts Bar Association framed frequent flyer miles in terms of a reasonable fee. Participating in the frequent flyer program doesn't cost the client anything, so that can't be where the issue lies. But if an attorney purposefully selects a more expensive airline because it affords greater rewards, that would be a violation of the attorney's duty to only charge a reasonable fee. In that case, the attorney would have to disclose to the client the fact that he's picking an airline specifically for its benefits.
The Boston Bar Association opinion looks at miles as akin to a nominal gift. Unlike other gifts, the opinion says, frequent flyer miles can't be transferred or converted to cash, so the client can't obtain them once the attorney has earned them. Besides, a single piece of travel earned on behalf of one client wouldn't be enough to obtain a substantial benefit, like an actual plane ticket. The rewards accumulate as a result of travel on behalf of many clients. The catch, however, is that a lawyer can't bill a client for travel paid for with the lawyer's frequent flyer miles.
But it's the Oklahoma opinion that's most on point. It was written in 2013, unlike the Boston and Massachusetts opinions, which were written in 1993 and 1994, respectively. "Both of these opinions predate the current Rules of Professional Conduct, which do not directly address the issue," the Oklahoma opinion notes.
Oklahoma takes a third view of airline miles; namely, the duty of loyalty to the client. The lawyer can't place his own interests above those of the client, but the Oklahoma opinion says, pragmatically, that "award levels are intentionally set at relatively high levels by the credit card affiliates," meaning it's unlikely a single trip taken on behalf of a single client will earn enough miles to buy a whole airline ticket somewhere.
Like the Boston opinion, Oklahoma's points out that even if the client wanted the miles, the client couldn't get them unless the client bought the ticket with his or her own credit card.
In very few cases, there may be so many travel expenses incurred that the tiny benefits might add up. In those cases, you should talk to the client. "In other cases, the use of the credit card will be so incidental and the awards generated so de minimis that the existence of those benefits could have no impact that could materially affect the lawyer's ability to represent the client, making disclosure and discussion unnecessary," the Oklahoma Bar reassures us.
So rest assured that earning 1,000 miles here and there on behalf of one client (or, more likely, as a result of flying for several clients) isn't a benefit that you're cheating the client out of.
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