LEO: Law Firm - Advancing Costs of LE Op. 997
Law Firm - Advancing Costs of Litigation.
November 13, 1987
You ask whether a court-appointed or pro bono counsel may advance the
costs of an expert witness whose services are necessary to establish
claims of constitutional error brought by a death row inmate, where there
is no probability that the client will ultimately reimburse counsel for
Earlier Legal Ethics Opinions address the subject of advancing costs of
litigation on behalf of a client. Generally, these opinions state that
costs may be advanced if the client remains "ultimately responsible". (See
LE Op. 317, LE Op. 820 and LE Op. 941). These opinions were all based
upon DR:5-103(A) of the Code, which provides that an attorney may
advance costs of litigation provided the client remains ultimately liable
for such expenses. Ethical Consideration 5-8 provides that a lawyer may
provide or guarantee costs but the liability for such costs must be that
of the client.
LE Op. 485 states that "it is improper for a private law firm to
advance the costs and expenses of litigation where the client will not be
ultimately liable for these costs and expenses. This is so even in a class
action--where there is not a readily identifiable 'client '--and even
though the class members are indigent".
LE Op. 485 was based also on the possibility that the advancement of
funds by a private attorney in a civil rights litigation could affect
independence of judgment as to settlement and appeals. There is no danger
of that occurring in the instant situation since there is only one avenue
of relief in death penalty cases.
The Committee finds it extremely unfair for a client, particularly in a
death penalty case, to be denied effective representation because he is
indigent and unable to ultimately pay his attorney for costs advanced.
The Committee, therefore, opines that it is not improper for a lawyer to
advance the costs of litigation for an indigent client in a death penalty
case, when there is no reasonable expectation that the client will be able
to repay the lawyer for the costs advanced.
Committee Opinion November 13, 1987