An increasingnumber of lawyers are taking payment in bitcoin and other cryptocurrencies. With many ICO startups destitute until their crowdsale, ether or tokens are often all they can offer. Rather than turn away business, some lawyers have admitted to taking payment in crypto. While increased acceptance of cryptocurrency – especially in such circles – is to be welcomed, it’s led to concerns that lawyers who are financially invested in a project may struggle to dispense impartial advice.
Meet the Crypto-Chasing Lawyers
It would be easy to assume that cryptocurrency acceptance in the legal profession is limited to a handful of fringe mavericks and libertarians, but it’s attracted a number of mainstream advocates. A recent article in Law.com (paywalled) quotes several lawyers who now accept crypto including Washington-based lawyer Carol Van Cleef, who helps cryptoclients with compliance matters. She explains: “I’ve known for a long time that my opportunity to expand in certain areas has been affected by not taking [cryptocurrency]”.
Historically, lawyers who’ve served the poorest and most marginalized members of society have done so for ideological reasons rather than pecuniary gain. In times gone by, it was not unheard of for defense attorneys to take payment in the form of firewood, food or whatever else their clients could spare. Had Breaking Bad been filmed five years later, it’s easy to imagine wheeler-dealer lawyer Saul Goodman accepting crypto and using it to help Walter White account for his vertiginous pallets of $20 bills.
Tokens for Attorneys
As cryptocurrencies have entered the mainstream, their association with illicit activities has diminished, and so has the stigma of accepting them. Lawyers must tread more carefully than professionals from other sectors however and accepting crypto from startups they’re advising raise possible conflict of interest concerns. It’s common practice for cash-strapped startups to offer team members payment in tokens.
Everyone from web designers to marketers can be pacified with the promise of tokens as soon as the projectlaunches. Any legal expert entering into such an agreement would be obliged to rule that the token constituted a utility and not a security, as to do otherwise would mean they wouldn’t get paid.
Conflict of Interest or Credibility Booster?
If a lawyer has never sent or received cryptocurrency, they seem ill-equipped to advise crypto startups on their structuring model. Cryptocurrency theory is all well and good, but to truly appreciate and understand it, proponents insist, it is necessary to experience it in action, and not just once for test purposes, but as part of everyday life. Lawyers who have gotten their hands dirty, so to speak, by using crypto should be able to understand and explain it more effectively than their counterparts who are still crypto virgins. It would be hard to see bitcoin or ethereum acceptance as presenting a conflict of interest; a lawyer taking tokens for the platform they’re advising on, however, would be a much narrower crypto case, and one that is much harder to defend.
Mainstream media organizations such as the New York Times forbid their bitcoin reporters from owning cryptocurrency, while other newssitesexpect their journalists to disclose any potential conflict of interest. While scribes such as the NYT’s Nathaniel Popper have earned praise for the quality of their reporting, it’s hard to shake the feeling that by watching from the sidelines, their reporting is in danger of being too detached. Just as Vietnam war journos had no qualms about hunkering down with the troops, crypto reporters with personal experience of the subject matter are likely to be better informed and more attuned to community matters.
Dirty Digital Money
Accepting crypto is “a symbol for the client about how vested you are in the area,” says DC lawyer Carol Van Cleef. Defense attorney Jay Cohen also accepts bitcoin but confesses “We cash it out when it comes in, because of the volatility”. This practice tallies with an opinion delivered by a Nebraska Supreme Court committee which advises lawyers to convert crypto to fiat expeditiously to prevent conflicts of interest caused by lawyers getting vastly over or underpaid due to bitcoin volatility.
There’s another problem though that defense lawyers accepting crypto from their clients must address: ensuring that it has not come from illegitimate activities. Cohen confesses to having to turn down bitcoinpayment from a client who was charged with money laundering. Obvious red flag-raising cases aside, there’s nothing to stop lawyers from accepting crypto, as a number of firms in the U.S. and elsewhere do.
Former assistant U.S. attorney Kathryn Haun put it best when she told Law.com via email: “There is no reason to believe that cryptocurrency is illegitimate and criminally-derived any more than any other form of currency or payment. Cryptocurrencies are not special in that regard and I would think would be treated like any other funds.”
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