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

those costs.


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