Can a legal-services lawyer take part in a program where an outside nonprofit advances students' court costs and its staff helps them file small claims suits?

Plain-English summary

A lawyer in a university student legal services office asked whether he could participate in a program under which the Illinois Public Interest Research Group would advance court costs for needy students filing small claims suits to recover rental deposits from landlords, with the student legal services screening the claims and the research group reimbursed only out of any court-cost recovery so the fund could revolve. The committee addressed only the lawyer's professional ethics, expressly declining to opine on whether the program would violate the Illinois maintenance statute.

The committee found no direct violation of Rule 5-103(b) (which bars a lawyer from advancing or guaranteeing financial assistance to a client beyond litigation expenses for which the client remains ultimately liable), because it was an independent non-lawyer organization, not the lawyer, advancing the costs. But the proposal said a staff person would "assist the student in placing the claim" and help the claimant "cope with the red tape involved." The committee concluded that this assistance would thrust the research group into the unauthorized practice of law, which Rule 3-101(a) prohibits a lawyer from aiding.

That, combined with the potential maintenance-statute violation, led the committee to conclude the lawyer could not participate. It also pointed to Rule 1-102, under which a lawyer may not circumvent a disciplinary rule through the actions of another, or engage in conduct prejudicial to the administration of justice: the unauthorized practice of law is prejudicial to the administration of justice, and the lawyer is barred from circumventing Rule 5-103(b) through the research group's actions. The committee therefore found it would be professionally improper for the student legal services attorney to participate in the proposal.

Currency note

This opinion was issued in 1982, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rule (Rule 1.8(e)), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis, including the rules on third-party litigation funding. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer join a program where an outside group funds clients' court costs?

A: The opinion concluded the lawyer here could not, not because of the funding itself (an outside non-lawyer organization advanced the costs), but because the program's other features amounted to unauthorized practice the lawyer would be aiding.

Q: What made the program unauthorized practice of law?

A: Per the opinion, the organization's staff would "assist the student in placing the claim" and help with "the red tape involved," which the committee found would thrust the non-lawyer organization into practicing law, contrary to Rule 3-101(a).

Q: Did the committee decide whether the funding violated the maintenance statute?

A: No. The committee expressly declined to opine on the maintenance statute, addressing only the lawyer's professional ethics, though it treated a potential violation as part of the basis for finding participation improper.

Background and rules framework

The opinion applied former Illinois Code Rule 3-101(a) (not aiding a non-lawyer in the unauthorized practice of law), Rule 5-103(b) (limits on advancing financial assistance to a client), and Rule 1-102 (not circumventing a rule through another's acts, and not engaging in conduct prejudicial to the administration of justice), against the backdrop of the Illinois maintenance statute. The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.8(e) (financial assistance to clients), corresponding to ABA Model Rule 1.8, with the unauthorized-practice bar in Model Rule 5.5.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rules 3-101(a), 5-103(b), 1-102 (applied in the opinion)
• Illinois RPC 1.8(e) (2010 equivalent per the Board's affirmation)
• MR 1.8 (financial assistance to clients, 1.8(e)); MR 5.5 (unauthorized practice of law)

Statutes:

• Illinois maintenance statute, Ill. Rev. Stat. ch. 13, Section 22 (committee declined to opine on its application)

See also

• ISBA Ethics Op. 85-07: Law Firm Providing Letterhead to a Client
• ISBA Ethics Op. 97-03: Corporation Practicing Law
• ISBA Ethics Op. 13-03: Nonlawyers in FINRA Arbitration

Source

• Landing page: https://www.isba.org/ethics/opinions/767