Sunday, April 16, 2006

Lawyer "ethics": hungry clients and ambulance chasers

It is okay for a personal injury lawyer to advance money based on a contingent fee in a speculative lawsuit, but it is forbidden for a pro bono asylum lawyer to, say, raise money in a charity auction to fly the client's children to the country for derivative asylum applications after a successful asylum ruling, or to volunteer money that likely will never be repaid for a DNA test to establish paternity for those I-730 derivative applications.

This from the Connecticut Rules of Professional Conduct. Section 1.8:
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

(1) a lawyer may pay court costs and expenses of litigation on behalf of a client, the repayment of which may be contingent on the outcome of the matter;

(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

(Commentary on Rule 1.8 has noted that these rules should apply both to current and former clients.) Rule 1.8(e)(1) enables speculative litigation, and 1.8(e)(2) applies only to actual court costs and litigation for indigent clients, not expenses which follow from a successful ruling. For example, Informal Opinion 93-12 and 00-21, allow, respectively, expenses for personal injury suits (say, an MRI for evidence), but require the indigent client to be cut loose after the verdict. These rules parallel the ABA model rules, and both are harshly interpreted. See, e.g.,
C.O.P.R.A.C. Op. 1976-36 (opines that it is unethical for an attorney to advance expenses (i.e., in instances of indigence on pro bono cases) where there is a substantial likelihood that the client will not be able to repay such costs absent successful resolution of the case).
I suggest, gently, that perhaps this is a somewhat unfair bias. The review list
8 ALR3d 1155 has notes on champerty, and how unlikely one is to be hit for that in personal injury law, but how pro bono firms just can't risk it. (The painting is from Marginal Revolution's study of Mexican Amate artists.)


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