Can a criminal defense lawyer pay a client's fine and court costs up front, expecting the client to reimburse him?

Plain-English summary

The inquiry described a criminal defense lawyer often retained at the last minute for clients unable to appear for waivable offenses, where the district attorney offered favorable plea bargains only on the first court date. To capture the favorable offer, counsel would waive the client's appearance and accept the plea. The inquiry asked whether the attorney may advance the fine and court costs on the client's behalf, expecting reimbursement.

The opinion concluded that he may. It explained that Rule 5.3(b), while generally prohibiting the lending of living expenses to a client, permits a lawyer to advance court costs from the lawyer's own funds while representing the client in pending litigation, so long as the client remains ultimately liable. Although the advancement of fines is not expressly permitted, the opinion saw no principled distinction between such penalties and the other kinds of expenses that may legitimately be advanced, such as court costs, investigation expenses, medical examination expenses, and the costs of obtaining and presenting evidence. It added that the policies underlying Rule 5.3(b) do not warrant prohibiting such a loan: advancing a fine is unlikely to create a conflict of interest compromising the lawyer's judgment in a criminal case, and a lawyer is unlikely to suggest willingness to advance a fine in order to solicit a criminal case.

Currency note

This opinion was issued in 1989, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The financial-assistance provision it applies (Rule 5.3(b)) has since been renumbered and revised (the corresponding Model Rule is 1.8(e)). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a defense lawyer advance a client's fine and court costs?

A: Yes. The opinion concluded that a lawyer may advance a fine and court costs from his own funds during pending litigation if the client remains ultimately liable.

Q: Why are fines treated like other advanceable expenses?

A: The opinion saw no principled distinction between fines and expenses such as court costs, investigation, medical examinations, and obtaining evidence, all of which a lawyer may advance.

Q: Does advancing a fine create a conflict or solicitation problem?

A: The opinion concluded it is unlikely to create a conflict compromising the lawyer's judgment, and unlikely that a lawyer would offer to advance a fine to solicit a criminal case.

Background and rules framework

The opinion applied North Carolina Rule 5.3(b), which generally barred financial assistance to a client but allowed advancing litigation expenses for which the client stays ultimately liable (corresponding to Model Rule 1.8(e)). The committee read the rule's list of advanceable expenses as non-exhaustive in principle and extended it to fines, finding the rule's underlying policies not implicated.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.3(b) (financial assistance to a client; advancing litigation expenses)
• MR 1.8 (conflicts; financial assistance to clients)

See also

• NC Ethics Op. RPC 80: lending money to a client
• NC Ethics Op. RPC 173: advancing funds to a client to post bond

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-76/

Original opinion text

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

Inquiry:

Perry Mason devotes a substantial portion of his practice to the defense of the criminally accused. He is often retained at the last minute to represent individuals who are unable to come to court for waivable offenses. These individuals may reside out of state, be away on business, or just unable to miss a day of school or work. The local district attorney's office often offers favorable plea bargains only on the first court date, and either withdraws or offers a less favorable plea bargain if the case is continued. Consequently, counsel is compelled to waive the client's appearance, accept the favorable offer, and the consequently more favorable judgment.

May an attorney, under this fact situation, advance the fine and court costs on behalf of his client, as long as he expects to seek reimbursement from his client?

Opinion:

Yes. Rule 5.3(b) of the Rules of Professional Conduct, while generally prohibiting the lending of living expenses to a client, does permit a lawyer to advance court costs on the client's behalf from the lawyer's own funds while representing the client in connection with pending litigation so long as the client remains ultimately liable for the expense. Although the advancement of fines is not expressly permitted, there appears to be no principled distinction between such penalties and the other kinds of expenses which may be legitimately advanced such as court costs, expenses of investigation, expenses of medical examination, and the costs of obtaining and presenting evidence. Nor would the policies which underlie Rule 5.3(b) seem to warrant the prohibition of such a loan. The advancement of fines is unlikely to create a conflict of interest which would compromise the lawyer's professional judgment in a criminal case. It is also unlikely that a lawyer would suggest his willingness to advance a fine in order to solicit a criminal case.