By: Karla J. Eckardt, Practice Management Advisor
LegalFuel: The Practice Resource Center of The Florida Bar

Consumers have become accustomed to the convenience of paying for goods and services using popular person-to-person payment apps, such as Venmo or Cash App, that are linked to their bank accounts, credits cards, or debit cards. While Florida Bar Ethics Opinion 21-2 greenlights accepting payments for legal services via these apps, the apps themselves may have some practical limitations when used for business purposes. Lawyers should review user agreements or terms of service before they begin accepting payments for legal services using their existing personal accounts.

Ethics Opinion 21-2

On March 23, 2021 The Professional Ethics Committee approved Opinion 21-2 which states that

A lawyer ethically may accept payments via a Web-based payment-processing service (such as Venmo or PayPal), including funds that are the property of a client or third person, as long as reasonable steps are taken to protect against inadvertent or unwanted disclosure of information regarding the transaction and to safeguard funds of clients and third persons that are entrusted to the lawyer.

The opinion concludes by setting forth the following conditions:

Confidentiality & Privacy Settings

1. The lawyer must take reasonable steps to prevent the inadvertent or unwanted disclosure of information regarding the transaction to parties other than the lawyer and the client or third person making the payment.

No Commingling

2. If the funds are the property of a client or third person (such as advances for costs and fees and escrow deposits), the lawyer must direct the payor to an account with the service that is used only to receive such funds and must arrange for the prompt transfer of those funds to the lawyer’s trust account at an eligible banking or credit institution, whether through a direct link to the trust account if available, through a suspense account with the banking or credit institution at which the lawyer’s trust account is maintained and from which the funds automatically and promptly are swept into the lawyer’s trust account, or through another substantially similar arrangement.

Transaction Fees & Chargebacks

3. Unless the lawyer and client otherwise agree, the lawyer must ensure that any transaction fee charged to the recipient is paid by the lawyer and not from client trust funds. Likewise, the lawyer must ensure that any chargebacks are not deducted from trust funds and that the service will not freeze the account in the event of a payment dispute.

Use Caution, Consider the Following

That said, we highly encourage lawyers to consider the following before they begin accepting payments for legal services using their existing personal accounts with the services.

Venmo (A PayPal Company)

Venmo’s User Agreement states that

Except for commercial transactions expressly authorized by Venmo… or transactions that are identified as payments for goods and services, personal accounts may not be used to conduct business, commercial or merchant transactions with other personal accounts, which includes paying or accepting payment from other personal accounts held by users you do not personally know for goods or services (for example, concert tickets, electronic equipment, sneakers, a watch, or other merchandise, deposits for apartments, or dog walking). If you plan to use your Venmo account to receive payments for goods or services, you must ask your buyer to identify that their payment is for goods and services or have a business profile. (emphasis added)

If you were hoping to avoid credit card processing fees by using your personal Venmo account to accept payments for legal services, you’re out of luck. Effective July 20, 2021, personal accounts receiving payments identified by senders as being for goods and services, as required, will be charged a seller transaction fee of 1.9% + $0.10, the same fee being charged on business profile transactions.

With regard to trust accounts and merchant fees, Opinion 21-2 states that “unless the lawyer and the client otherwise agree, the lawyer must ensure that any such fee is paid by the lawyer and not from client trust funds.” Venmo makes it clear that if you are sent $100, you’ll receive $98 because the seller transaction fee is deducted from the payment sent. Rule 5-1.1(a)(1)(A) allows lawyers to maintain funds belonging to the lawyer in the trust account in an amount no more than is reasonably sufficient to cover bank charges relating to the trust account. So, once the $98 Venmo balance is transferred to the linked trust account, unless the lawyer and the client otherwise agree, the lawyer will have to credit the client $2 from the lawyer’s own trust funds.

Opinion 21-2 requires that lawyers “maintain separate accounts with the service.” According to Florida Bar Ethics Counsel, this means one business profile for your operating account and another, separate business profile for your trust account (or suspense account). Having one business profile and linking both your operating account and your trust account (or suspense account) would be considered commingling and thus a violation of the rules. As it stands, Venmo only allows users to have one business profile. So, Florida lawyers may have to choose to use a Venmo Business Profile with either their operating account or their trust account, but not both.

Furthermore, sole proprietors may not be able to use Venmo at all, at least not for accepting payments into trust accounts (or suspense accounts). According to Venmo

As a sole proprietor, any payment methods you link to your Venmo account will be linked to both your personal Venmo profile and your business profile. However, if you set up your business profile as a registered business, Venmo will keep the payment methods separate for you. Any payment method you link to your business profile will only be linked to the business profile – it won’t be mirrored on your personal Venmo profile.

In terms of complying with the confidentiality requirement set forth in the rules and in Opinion 21-2, personal Venmo accounts and business profiles have separate privacy settings but the default is never set to private. Make sure your default privacy settings are set to ‘private’ BEFORE you begin accepting payments for legal services. Otherwise, “[t]ransactions made to your business profile that are shared will appear as enhanced payments, highlighting additional details about your business profile in the transactors friend’s feed.”  To be clear, no payment for legal services, either into operating or trust, should be appearing in friend’s feeds. Failing to set the default privacy settings to ‘private’ will result in the disclosure of information regarding the transaction, which is a violation of the rules.  For more information about how to adjust these settings, please see this article.

To learn more about Venmo Business profiles, click here.

Cash App

Cash App’s Terms of Service don’t go into detail about the ramifications of using a personal account for business purposes. They simply state that “[i]f you are a seller of goods or services, your profile will be marked with an official insignia or will otherwise be designated as having a ‘Cash for Business Account.’” Funds are still free to send but payments received are assessed a 2.75% fee. As with Venmo, if you use Cash App to accept payments into your trust account (or suspense account), unless the lawyer and the client otherwise agree, the lawyer will have to credit the full payment amount to the client’s trust balance.

You can change your personal account to a Cash for Business Account, and vice versa but, unlike Venmo, you can’t have both linked to the same mobile number or email. Thus, if you change your personal Cash App account to a Cash for Business account, you will no longer be able to use it for personal transactions. Like Venmo, you can only have one Cash for Business Account. Florida lawyers may have to choose to use a Cash for Business Account with either their operating account or their trust account, but not both.

It should also be noted that the Cash For Business Payment Terms prohibit using Cash App and related Payment Services for bankruptcy attorneys or collection agencies engaged in the collection of debt.

Cash App doesn’t have dedicated Cash for Business guidance, but you can visit the Cash App support page for more information.

PayPal

PayPal is one of the oldest and most widely recognized online payment platforms. The PayPal User Agreement states that “[y]ou can also use a personal PayPal account to receive money for the sale of goods and services… but if you plan to use your personal PayPal account primarily to sell things, you should open a business PayPal account.” Regardless of whether you have a personal account or a business account, when you buy or sell goods or services, receive payments through QR codes, make any other commercial type of transaction, or receive a payment when you “request money,” it is considered a “commercial transaction” and merchant fees starting at 2.9% + $0.30 will apply.

We’ve established that, unless the lawyer and client otherwise agree, the lawyer must pay the merchant fee. However, the PayPal User Agreement forbids imposing a surcharge or any other fee for accepting PayPal as a payment method. Also note that asking clients to use the “send money to a friend or family member” feature to avoid being assessed merchant fees may result in PayPal removing your PayPal account’s ability to accept payments from friends or family members.

When it comes to managing operating funds and trust funds from within PayPal, things get a little murky. As mentioned previously, according to Florida Bar Ethics Counsel, Opinion 21-2 requires that lawyers have two entirely separate accounts with the service, not one account with multiple linked bank accounts. Officially, this PayPal Help Center FAQ says “[y]ou can have one personal account and one business account. Each account must be registered with a unique email address.” PayPal community forums also seem to confirm that if you call PayPal, they can setup a parent account with multiple sub-accounts. However, this setup would require for the parent account and sub-accounts to all be linked to the same bank account(s). As with the other apps, having one account and linking both your operating account and your trust account (or suspense account) would be considered commingling and thus a violation of the rules.

To learn more about business PayPal accounts, click here.

Zelle

Lastly, there is Zelle. Unlike the previously mentioned apps that hold funds in a digital wallet until they are transferred to a bank account, Zelle transfers money directly between almost any eligible U.S. bank account, typically within minutes. Zelle works right from within your client’s bank’s mobile app or, if their bank doesn’t offer Zelle, they can download the Zelle app. According to the Using Zelle With A Small Business page, “[i]n order to use Zelle with your business account, your bank or credit union must currently offer Zelle for your business account type. Please note that not all banks and credit unions offering Zelle to consumers offer Zelle for small businesses. So, contact your bank directly to confirm.” The page also states that “only those enrolled with Zelle through their banking app are able to send and receive money with eligible business accounts.” Further guidance on how or when you can use Zelle for business is limited and seems to also depend largely on your bank’s own policies, terms, and conditions. If your bank permits the use of Zelle for business purposes, be sure the setup conforms with the rules and Opinion 21-2.

Practical Advice

Can you use online/mobile payment apps? Yes, so long as you abide by the app’s terms, the Rules Regulating The Florida Bar, and guidance set forth in Ethics Opinion 21-2. Should you use payment apps? It depends. If you are a new lawyer or you just recently opened your law firm and are looking for a way to start accepting online payments today, then sure. We can see where mobile payment apps can be a convenient short-term solution, even considering the aforementioned limitations.

However, our advice for the long term is that you limit your use of mobile payment apps to personal transactions. If you absolutely must use mobile payment apps, then consider using them only to accept payments into your operating account. These apps simply do not lend themselves for use with trust accounts, they’re just not setup for it. All the additional hoops you’ll have to jump, like having to get multiple accounts with the service (if that’s even an option) or setting up suspense accounts, completely defeat the convenience of using mobile payment apps in the first place.

In the end, what really matters is that you offer clients a simple way to pay. This can be accomplished by using legal-specific online payment services like LawPay*, LexCharge, or Headnote. These services are designed specifically for lawyers to be able to accept online payments into both operating and trust accounts, all while maintaining compliance with IOTA rules. What’s more, many practice management software programs have either built these services directly into their platforms or they offer easy-to-setup integrations. So, you can record your time, generate invoices, send invoices, and receive payment into the correct account, right from within your practice management software program. For your clients, it’s as easy as clicking a link on an invoice.

Another practical tip, regardless of how you choose to accept online payments, ALWAYS have a written fee agreement that includes detailed payment language and ALWAYS use credit card authorization forms. Taking these precautions will help protect your firm against chargebacks resulting from clients disputing charges with their credit card companies. Visit the LegalFuel Document Library to download sample fee agreements, credit card authorization forms, and more.

* LawPay is a Florida Bar Member Benefit.

Note: This article addresses the question of using online payment apps based on the technology, user agreements, and terms of service as they exist today and does not cover all available online payment solutions. As stated in Opinion 21-2, “[w]eb-based applications and technology are constantly changing and evolving. A lawyer must make reasonable efforts to become familiar with and stay abreast of the characteristics unique to any application or service that the lawyer is using.”

Legal Disclaimer: Florida Bar staff members cannot provide legal advice. None of the content should be considered legal advice. Readers should consult a lawyer for evaluation and advice on particular fact situations, rights, and obligations on issues covered herein.

VIEWS AND CONCLUSIONS EXPRESSED IN ARTICLES HEREIN ARE THOSE OF THE AUTHORS AND NOT NECESSARILY THOSE OF FLORIDA BAR STAFF, OFFICIALS, OR BOARD OF GOVERNORS OF THE FLORIDA BAR.