Can a lawyer reach out to an indigent person to offer pro bono representation, and pay the case's costs?

Plain-English summary

A lawyer learned from a newspaper account of an indigent individual involved in a legal problem of public importance and wished to contact the person to offer representation on a pro bono basis. The lawyer asked whether it was proper to solicit that representation in a criminal or a civil matter, both where the lawyer would absorb all fees and costs and where the lawyer would ask the client to pay the costs from the client's own or third-party funds.

The opinion concluded that solicitation here was not improper. It noted that ER 6.1 encourages public-interest legal service and does not distinguish criminal from civil cases. Under ER 7.3, a lawyer may not solicit a prospective client with whom the lawyer has no family or prior professional relationship when a motive is the lawyer's pecuniary gain. The committee emphasized that Arizona deleted the Model Rule's "significant motive" qualifier, so the lawyer must have no pecuniary motive at all, however small or indirect; a pro bono solicitation made expecting that the resulting publicity would enhance the lawyer's income would not qualify.

On costs, the opinion read ER 1.8(e)(2) to permit a lawyer representing an indigent client to pay the court costs and expenses of litigation, without distinguishing criminal from civil cases. It added that the lawyer need not pay all costs and may ask the client to pay as much as possible. Where a third party pays, the opinion pointed to ER 1.8(f) and concluded that, whether or not that rule literally covers litigation costs, its conditions, client consent, no interference with the lawyer's independent judgment, and protection of confidential information under ER 1.6, should govern the use of third-party funds.

In summary, the opinion concluded it is not unethical to solicit an indigent prospective client for pro bono work in a criminal or civil matter absent any pecuniary motive, that the lawyer may pay the litigation costs for an indigent client, may ask the client to pay as much as possible, and may accept third-party payment of costs if the ER 1.8(f) principles are followed.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer contact an indigent person to offer free representation?

A: The opinion concluded yes, in a criminal or civil matter, as long as the lawyer has no motive of pecuniary gain, because ER 7.3 (as adopted in Arizona) bars solicitation only when pecuniary gain is a motive.

Q: Does any expectation of indirect benefit disqualify the solicitation?

A: The opinion concluded that Arizona's deletion of the "significant motive" qualifier means any pecuniary motive, however small or indirect, such as expected publicity that would enhance income, takes the solicitation outside ER 7.3's permission.

Q: Can the lawyer pay the costs of the case for an indigent client?

A: Yes. The opinion read ER 1.8(e)(2) to permit a lawyer to pay an indigent client's litigation costs, noted the lawyer need not pay all of them, and allowed third-party payment if the ER 1.8(f) conditions are met.

Background and rules framework

The opinion applied ER 6.1 (Model Rule 6.1) on public-interest service, ER 7.3 (Model Rule 7.3) on solicitation (as narrowed in Arizona by deleting "significant motive"), ER 1.8(e) (Model Rule 1.8(e)) on financial assistance to clients, ER 1.8(f) (Model Rule 1.8(f)) on third-party compensation, and ER 1.6 and ER 1.7 on confidentiality and conflicts. It expressly declined to address the constitutional questions about lawyer solicitation as questions of law outside its jurisdiction.

Citations and references

Rules of Professional Conduct:

• ER 6.1 / Model Rule 6.1 (pro bono public service)
• ER 7.3 / Model Rule 7.3 (solicitation; Arizona deleted "significant motive")
• ER 1.8(e) / Model Rule 1.8(e) (financial assistance; advancing or paying costs)
• ER 1.8(f) / Model Rule 1.8(f) (compensation from a third party)
• ER 1.6 / Model Rule 1.6 (confidentiality)
• ER 1.7 / Model Rule 1.7 (conflict of interest)

See also

• AZ Ethics Op. 86-01: Newspaper Want Ad Seeking a Plaintiff
• AZ Ethics Op. 85-09: Joint Advertising by Attorneys
• AZ Ethics Op. 87-12: Advertising and Solicitation

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=557

Original opinion text

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

4/1987

Permissible to solicit pro bono employment from prospective indigent client, provided there is no motive for pecuniary gain. Attorney may pay costs of litigation, or request client to pay as much as possible, or receive payment from a third party.

FACTS

An attorney learns, through a newspaper account, of an individual who is involved in a legal problem of public importance. The individual is indigent. Recognizing a duty to the community to perform pro bono work, the attorney wishes to contact the indigent person and to offer his services on a pro bono basis.

QUESTIONS

• Is it improper for an attorney to approach the individual and offer to represent that individual in a criminal matter, when the attorney is aware prior to'the solicitation that the individual is without funds to pay the attorney, and the attorney makes clear. at the time of the solicitation that he will perform services on a pro bono basis, without payment of any fees or costs?
• Same question as in No. 1, except that the attorney asks the client to pay the costs of litigation through the client's own funds or through third party funds.
• Same question as in No. 1, except that a civil matter is involved.
• Same question as in No. 2, except that a civil matter is involved.

ETHICAL RULES INVOLVED

ER 1,6. Confidentiality of Information

ER 1.7. Conflict of Interest: General Rule

ER 1.8. Conflict of Interest: Prohibited Transaction

ER 6.1. Zro Bono Publico Service

ER 7.3. Direct Contact with Prospective Client

OPINION

The Rules of Professional Conduct ("Rules"), as adopted in Arizona, encourage attorneys to provide public service legal work. ER 6.1, in particular, states that “A lawyer should render public interest legal service." The Comment to ER 6.1 intones that “[e]very lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged”. ER 6.1 further provides that an attorney may satisfy his ethical obligation to render public interest legal service “by providing professional services at no fee or a reduced fee to persons of limited means". ER 6.1 does not distinguish criminal cases from civil cases.

The current inquiry also engages the provisions of other Rules. Of particular relevance are ER 7.3, which regulates solicitation; ER 1.8 (e), which deals with financial assistance to clients; and ER 1.8 (f), which regulates an attorney's receipt of compensation from someone other than the client.

Solicitation of prospective clients is governed by ER 7.3, which states:

A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship by mail, in person, or otherwise, when a motive for the lawyer's doing so is the lawyer's pecuniary gain. The term “solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.\

For purposes of this inquiry, we assume that the attorney does not have a family or prior professional relationship with the prospective client. Absent such a prior relationship, ER 7.3 permits an attorney to solicit a prospective client only if the attorney has no motive of pecuniary gain. The use of the expression "a motive” in ER 7.3 indicates that the attorney must have no motive of pecuniary gain, no matter how small or indirect, in soliciting the representation. Thus, for example, if the attorney solicits pro bono employment, but does so with the expectation that the representation 1 will ultimately enhance his income due to the publicity involved in the matter, then the attorney's solicitation

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1This analysis is supported by the fact that ER 7.3 of the ABA Model Rules qualifies “motive" and prohibits solicitation only when a “significant motive" for the solicitation is the lawyer’s pecuilary gain. This qualification was deleted from ER 7.3 when the Rules were adopted in Arizona.

2This opinion does not addresss the constitutional issues involving lawyer solicitation considered in such cases as Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 105 S. Ct. 2265 (1985), and In Re R.M.J., 455 U.-5.-191, 102 S. Ct. 929, 71 L. Ed.2d 64 (1982). Legal questions are outside the jurisdiction of this Committee.

ER 1.8 (e) generally prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except in cases of indigency, where costs may be advanced:

(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:

• a lawyer may advance court costs and expenses of litigation, provided the client remains ultimately liable for such costs and expenses; and
• a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

Neither ER 1.8 nor the Comment to ER 1.8 draws a distinction between paying costs on behalf of an indigent3 client in a criminal case and paying costs on behalf of an indigent client in a civil case.

Of course, the fact that ER 1.8(e) (2 ) allows an attorney to pay costs and expenses of litigation on behalf of an indigent client does not mean that an attorney must pay them, or that he must pay all of them, if he pays any of them. On the other hand, when payment of costs and expenses of litigation is by a third party, rather than by the attorney or client, consideration should be given to ER 1.8(f ). ER 1.8(f ) provides that:

A lawyer shall not accept compensation for representing a client from one other than the client unless:

• the client consents after consultation;
• there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
• information relating to representation of a client is protected as required by ER 1.6.

It is not clear whether "compensation” as used in ER 1.8(f ) is applicable to the costs and expenses of litigation. The comment to ER 1.8 seems to construe "compensation” to mean the cost of a "lawyer's services."

Regardless of whether ER 1.8(f ) literally applies to payment of litigation costs by third parties, its provisions articulate the attorney's general obligations of loyalty and confidentiality

3"Indigent” is not defined in the Rules. Indigent status is a factual-legal question that is outside of the Committee's jurisdiction. Before relying on ER 1.8(e ) (2 ), of course, the lawyer should confirm that the prospective client is indigent.

owed to a client under ER 1.64 and ER 1.7,5 and should accordingly govern the potential use of third-party funds. See, e.g., Geoffrey C. Hazard and W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 166 ( 1986).

4The text of ER 1.6 states:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a) (2).

(b) A lawyer shall reveal such information to the extent the lawyer yeasonably believes necessary to prevent the client from commiEting a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

5The text of ER 1.7 states:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

In summary, it is not unethical for an attorney to solicit engagement by a prospective indigent client, in either a criminal or a civil matter, as long as the attorney, in doing so, does not have any motive for pecuniary gain. In addition, an attorney representing an indigent client, in either a civil or a criminal matter, may pay the costs and expenses of litigation on behalf of the client. The Rules do not prohibit the attorney from requesting the client to pay as much of the costs and expenses of litigation as possible. Neither do they prohibit the payment of such costs by third parties, as long as the principles articulated in ER 1.8(f ) are followed.

© State Bar of Arizona 1987