Introduction
The short answer is yes, but there are certain rules and regulations to understand.
When it comes to credit and debit card processing for lawyers and law firms, the fees can be expensive. From several dollars for an ACH transaction to as much as 3% for some credit cards, these fees are significant. Still, credit and debit cards are an increasingly popular way people pay for anything today, and legal services are no exception. How can a law firm balance the costs associated with accepting credit cards while preserving the convenience to clients? Here we outline two ways a lawyer or law firm can pass the cost of processing on to the client, or at least share the cost with the client. These strategies are known as surcharging and discounting.
In this document, we provide an overview of both surcharging and discounting. Then we examine the three sets of rules that should be understood prior to implementing these strategies: card brand rules, state laws, and state rules of professional conduct. At the end, you will find a guide outlining relevant ethics rules and state laws.
Surcharging
In surcharging, firms pass the cost of processing credit cards on to clients and let them choose which payment methods to use. Many lawyers assume that charging clients an additional fee for payment processing is unethical or at least slimy. But the truth is that major card brands like Visa and Mastercard don’t want consumers to know the actual cost of their airline miles, cash back rewards, or vacation points. For years, consumer advocates have been fighting the card brands to allow businesses to expose the true cost of credit cards and help consumers make more informed decisions about which payment methods they use.
Discounting
Another strategy for offsetting credit card fees is to offer the client a discount if they pay by means other than a credit or debit card (e.g., ACH). While this strategy can be economically similar to surcharging, it is viewed more favorably by the card brands, under state laws, and by the rules of professional conduct.
Rules and Regulations
There are three sets of rules firms should be familiar with before implementing either surcharging or discounting: card brand rules, state laws, and state rules of professional conduct.
Card Brand Rules
The card brands (Visa, Mastercard, etc.) permit surcharging and discounting, but they have some rules that merchants must follow. These rules are generally uniform across all states, and so we’ve provided them below, along with some best practices.
Surcharging Rules and Best Practices Regardless of State
- Firms intending to surcharge must notify Visa and Mastercard 30 days in advance of beginning to surcharge
- Surcharging is limited to credit cards only; the practice is not allowed on all debit cards even if they have a Visa/MC logo
- The amount of the surcharge must not exceed the amount it costs to process that card (Note: This rule makes it difficult to implement surcharging when firms are paying different amounts to process certain types of credit cards)
- In no case may the surcharge exceed 4%
- Clearly notify clients of the surcharge at the time of payment, in a fee agreement, and with signage at the firm’s offices
- Use a payments system that calculates the total amount of the payment after the surcharge is added; do not simply provide a surcharge percentage and require the client to do their own math
- Provide a receipt with the surcharge amount clearly identified
Discounting Rules and Best Practices Regardless of State
- The discount must be displayed as an actual discount from the full price of the services
- In the eyes of the card brands, a discount is not a service fee or other additional fee charged on all services and then removed for those paying by means other than cards (Note: Firms can accomplish this by displaying two prices on an invoice: a credit price and a check/bank transfer price)
- Clearly notify clients of the discount at the time of payment, in a fee agreement and with signage at the firm’s offices
- Discounting may be applied to both credit and debit cards
State Laws
While discounting is permitted in all states, some jurisdictions have passed laws limiting how businesses (not just law firms) implement surcharging or whether it is allowed at all. Below, we provide links to reference materials on states in which surcharging is limited.
Rules of Professional Conduct
Unsurprisingly, bar associations also have a say in how these strategies are implemented. There are only a few ethics opinions or rules of professional conduct that take the anti-consumer position of prohibiting the exposure of processing fees to clients. Most other states permit it explicitly, haven’t taken a position, or allow legal-sector-agnostic state laws and court decisions about merchant best practices to govern. Below we provide links to rules and opinions that have limited the practice of both discounting and surcharging.
To see more details on the rules and regulations specific to Hawaii, download our state-by-state guide below.
