I took an elderly client pro bono through a volunteer project, and now spending down assets for Medicaid is in play. Can I pay myself for my past services out of those assets even though the work was pro bono?

Plain-English summary

Through the Volunteer Lawyers Project, the inquiring attorney had represented an elderly client. Over several years, the attorney reorganized the client's financial affairs and managed the client's monthly expenses. Because the client could no longer care for himself, he now resided in a nursing home. The client's income exceeded his monthly expenses, and his bank account was approaching a level at which his total assets would disqualify him for Medicaid benefits, so the assets had to be reduced to avoid Medicaid ineligibility. The attorney asked whether he could compensate himself for services rendered to date, even though the original representation was pro bono.

The Panel applied Rule 1.14 (client under a disability), which directs a lawyer to maintain, as far as reasonably possible, a normal client-lawyer relationship where the client's ability to make adequately considered decisions is impaired, and which allows a lawyer to seek appointment of a guardian or take protective action only when the lawyer reasonably believes the client cannot adequately act in the client's own interest.

The Panel concluded that a guardian or conservator should be appointed to determine whether the attorney's proposed conduct would be in the client's best interest. It noted its guidance was limited to the Rules of Professional Conduct and did not extend to the rules of the Volunteer Lawyers Project.

Currency note

This opinion was issued in 1994 (Opinion 94-11, issued February 23, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.14 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.14 (client with diminished capacity). 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a pro bono lawyer later charge a disabled client for past services?

A: The Panel did not decide that directly. It concluded that under Rule 1.14, a guardian or conservator should be appointed to determine whether compensating the attorney would be in the client's best interest.

Q: Why did the Panel call for a guardian?

A: Because the client was under a disability. Rule 1.14 allows a lawyer to seek a guardian when the client cannot adequately act in the client's own interest, and the Panel viewed that step as the way to test the proposal.

Q: Did the Panel interpret the Volunteer Lawyers Project's rules?

A: No. It stated its guidance was restricted to the Rules of Professional Conduct and did not extend to the project's own rules.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.14 (client under a disability), the analog of Model Rule 1.14. Subsection (a) directs the lawyer to maintain a normal client-lawyer relationship as far as reasonably possible when the client's decision-making is impaired; subsection (b) permits seeking a guardian or other protective action when the lawyer reasonably believes the client cannot adequately act in the client's own interest. The Panel treated appointment of a guardian or conservator as the appropriate mechanism to evaluate the fee proposal.

Citations and references

Rules of Professional Conduct:

• MR 1.14 / RI RPC 1.14(a), (b) (client under a disability; protective action and appointment of a guardian)

See also

• RI EAP Opinion 92-16: representing a client with a disability under Rule 1.14
• RI EAP Opinion 92-40: an attorney-trustee accused by an elderly client may seek a guardian under Rule 1.14

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%2094-11.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

0646
FINAL

ETHICS ADVISORY PANEL
OPINION #94-11 REQUEST #464
Issued February 23, 1994

Through the Volunteer Lawyers Project, the inquiring attorney has represented an elderly client. Over the past few years, the inquiring attorney has reorganized the client's financial affairs and has succeeded in managing the client's monthly expenses. As a result of the client's inability to care for him/herself, he/she now resides in a nursing home. The client's income exceeds his/her monthly expenses and his/her bank account is approaching a level at which his/her total assets will disqualify him/her for Medicaid benefits. The client's assets must be reduced in order to avoid Medicaid ineligibility. The inquiring attorney queries whether he/she may compensate him/herself for services rendered to date, notwithstanding the fact that his original representation of the client was on a pro bono basis.

Rule 1.14 addresses the issue raised by this inquiry and provides as follows:

Rule 1.14. Client Under a Disability. -

(a) When a client's ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) A lawyer may seek the appointment of a guardian, or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client's own interest.

The Panel believes a guardian or conservator should be appointed in order to determine whether the inquiring attorney's proposed conduct would be in the client's best interest.

The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to interpretations of any of the applicable rules of the Volunteer Lawyers Project.