Can a Florida lawyer guarantee or advance the fees of medical or expert witnesses in a personal injury case?

Plain-English summary

A lawyer whose firm frequently represents personal injury plaintiffs was often asked by medical witnesses to guarantee payment of their witness fees. The opinion, originally issued in 1972 and revised in 1993 to track the Rules of Professional Conduct, concludes that the lawyer may do so under Rule 4-1.8(e).

The committee reads Rule 4-1.8(e) to permit, but not require, a lawyer to advance litigation costs and expenses, including witness fees, on a client's behalf. For a non-indigent client, the lawyer and client may agree that repayment of advanced costs and expenses is owed only if a recovery is obtained; in a contingent fee case, any such agreement should be in the required written employment contract. For an indigent client, the lawyer and client may agree that the lawyer will pay the litigation costs and expenses if no recovery is obtained.

Currency note

This opinion was originally issued in 1972 and revised in 1993, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applies Rule 4-1.8(e) (Model Rule 1.8(e)) of the Rules Regulating The Florida Bar as that rule stood at the time. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer guarantee a medical witness's fee in a personal injury case?

A: Yes. The committee concluded that a lawyer may advance or guarantee witness fees as litigation expenses under Rule 4-1.8(e), which the opinion treats as permitting (not requiring) the lawyer to advance such costs.

Q: Does the client have to repay advanced witness fees?

A: For a non-indigent client, the opinion says repayment of advanced costs and expenses may be made contingent on obtaining a recovery; in a contingent fee case that agreement should be in the written employment contract. For an indigent client, the lawyer may agree to bear the costs if no recovery is obtained.

Background and rules framework

The opinion interprets Rule 4-1.8(e) of the Rules Regulating The Florida Bar (Model Rule 1.8(e)), which governs financial assistance to a client in connection with litigation. The rule's text, as quoted in the opinion, allows a lawyer to advance court costs and expenses of litigation with repayment contingent on the outcome, and allows a lawyer representing an indigent client to pay those costs outright. The committee treats witness fees as falling within "expenses of litigation."

Citations and references

Rules of Professional Conduct:

• Rule 4-1.8(e), Rules Regulating The Florida Bar (Model Rule 1.8(e)): financial assistance to a client; advancing litigation costs and expenses

See also

• FL Bar Ethics Op. 16-1: Forgiving Advanced Costs
• FL Bar Ethics Op. 00-3: Non-Recourse Advance Litigation Funding

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-27/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-27-1-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 72-27
Originally issued July 30, 1972
Revised April 23, 1993
Advisory ethics opinions are not binding.
A lawyer may advance or guarantee fees of medical witnesses in accordance with Rule of Professional Conduct 4-1.8(e).
RPC: 4-1.8(e)
A lawyer whose firm frequently represents plaintiffs in personal injury litigation advises that he is often requested by medical witnesses to guarantee payment of their witness fees. He asks whether he may properly do so under the Rules of Professional Conduct.
Rule 4-1.8(e) provides:
(e) Financial Assistance to Client. A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
Clearly the lawyer is permitted, but not required, to advance litigation costs and expenses—including witness fees—on behalf of a client. Subdivision (1) of this rule allows the lawyer and a non-indigent client to agree that the client is obligated to repay the lawyer for advanced costs and expenses only if a recovery is obtained. In a contingent fee case, any such agreement should be included in the required written employment contract.
Subdivision (2) allows the lawyer and an indigent client to agree that the lawyer will pay the litigation costs and expenses of the indigent client if a recovery is not obtained.