The Bank of America Corporation (BAC) is asking certain of its select outside law firms to give it a credit on its annual legal fees, based on the amount of customer business—such as loans—sent to the law firms. Some experts say that practice is highly unusual and ethically suspect.
A form prepared by Bank of America and given to preferred provider law firms calls for a one-year deal between the bank and the firm. It states that the law firm “will give BAC a credit equal to $_____ [blank] to be applied toward bank paid legal services provided to GBAM [global banking and markets division] during the one-year arrangement period.”
The credit is on top of other discounts the bank already receives from its preferred providers.
One source who received the form and asked not to be named, said BAC indicated that the credit is calculated based on the total amount of legal fees passed on to third-party customers. For example, BAC may send a customer’s business, such as a large construction loan, to an outside law firm to handle, and the bank would pass on the legal fees to the borrower as part of the cost of the loan. But the credit BAC is requesting wouldn’t go to the customer who pays the legal fees—it would go to the bank.
Bank of America said as a general matter it doesn’t comment on specific arrangements with its legal providers. A source familiar with the agreements said that in general, the credit being sought is relationship-based rather than based on a strict percentage of fees paid.
The bank has threatened to stop using law firms that refuse to sign the deal.
If based on the amount of fees paid by customers, such an arrangement would be “outrageous,” according to professor Cornelius Hurley, director of the Morin Center for Banking and Financial Law at the Boston University School of Law. “It’s unethical. It’s a kickback and a form of pay to play for the law firms.”
Continue reading the complete Corporate Counsel story here.