Can I advance the court costs and litigation expenses for indigent personal-injury clients and be reimbursed only if the case recovers?

Plain-English summary

An attorney proposed to represent several indigent plaintiffs in a personal-injury matter and, given the clients' age and poverty, to advance the costs of litigation and be reimbursed only if the claim resulted in a recovery.

The Panel applies Rule 1.8(e)(1), which allows a lawyer to advance court costs and expenses of litigation "the repayment of which may be contingent on the outcome of the matter." The opinion concludes that, as long as the advanced costs and expenses are related to the litigation, the attorney's proposed conduct is not inconsistent with the Rules of Professional Conduct.

In practice

Under this opinion, advancing court costs and litigation expenses on behalf of indigent clients, and tying repayment to a recovery in the same matter, falls within the express permission of Rule 1.8(e)(1). The opinion frames the analysis around one limitation: the advanced amounts must be costs and expenses related to the litigation.

Common questions

Q: Can a Rhode Island lawyer front litigation costs for a client who cannot afford them?

A: Yes. The opinion applies Rule 1.8(e)(1), under which a lawyer may advance court costs and expenses of litigation, and finds the attorney's proposal permissible.

Q: Can repayment of those advanced costs be made contingent on winning the case?

A: Yes. Rule 1.8(e)(1) allows the repayment of advanced court costs and expenses to be contingent on the outcome of the matter, and the opinion approves that arrangement.

Q: Is there any limit on what may be advanced?

A: The opinion conditions its conclusion on the advanced amounts being costs and expenses "related to the litigation."

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.8(e)(1), the analog of Model Rule 1.8(e)(1), which appears under the heading "Conflict of Interest: Prohibited Transactions." That subparagraph permits a lawyer to advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter.

Citations and references

Rules of Professional Conduct:

• MR 1.8(e)(1) (advancing court costs and litigation expenses; repayment may be contingent on outcome)
• RI RPC 1.8(e)(1) (same)

See also

• RI EAP Opinion 92-92: advancing litigation costs and recouping from a later recovery under 1.8(e)(1)

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2093-07.pdf

Original opinion text

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

Final
ETHICS ADVISORY PANEL
Opinion #93-7, Request #337
Issued March 15, 1993

An attorney seeks Panel advice with regard to Rule 1.8 entitled "Conflict of Interest: Prohibited Transactions." The attorney would like to represent several indigent plaintiffs in a personal injury matter. Given the clients' age and poverty level, the attorney would advance the costs of litigation and would be reimbursed only if the claim results in recovery with regard to the claim.

Rule 1.8(e)(1) allows for an attorney to advance court costs and expenses of litigation. The Rule states 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;

As long as the advanced costs and expenses are related to the litigation the attorney's proposed conduct is not inconsistent with the Rules of Professional Conduct in this matter.