May a Connecticut lawyer organize crowdfunding for a client without becoming a necessary witness, and how must the lawyer handle the donated funds?

Plain-English summary

An appointed lawyer represented an indigent mother in a child-protection matter. With the client's consent, the lawyer organized a crowdfunding campaign that raised about $1,100 for rent, food, and fuel. The lawyer and firm did not donate. After opposing counsel asserted that the lawyer could become a witness, the lawyer withdrew and asked whether Rule 3.7 required that result.

The Committee found no Rule 3.7 violation. The rule bars acting as an advocate at a trial in which the lawyer is likely to be a necessary witness; it does not bar pretrial participation or general advice. The stated facts did not indicate that the lawyer would be a necessary trial witness, and the Committee concluded that the crowdfunding did not dictate disqualification. A trial court would decide any fact-specific disqualification motion.

The opinion also identifies duties arising when a lawyer runs crowdfunding for a client's benefit. Rule 1.6 requires informed consent before disclosing information relating to the representation, including when published details could identify an unnamed client. Rule 4.1 requires truthful statements throughout the campaign. Donations received by the lawyer for the client's benefit are client funds: Rule 1.15(e) requires prompt notice and delivery, and Rule 1.15(b) requires deposit in an IOLTA account if the lawyer will hold the money before delivery.

The Committee concluded that merely facilitating third-party donations is not financial assistance by the lawyer under Rule 1.8(e). A lawyer's own contribution would have to fit the narrow Rule 1.8(e)(3) exception described in the opinion for modest gifts to an indigent client for basic living expenses.

In practice

Under this opinion, a lawyer's role in receiving and distributing crowdfunding proceeds does not by itself make the lawyer a necessary witness. Rule 3.7 turns on the anticipated trial testimony, including whether the subject is disputed, available through other evidence, based on the lawyer's first-hand knowledge, or substantially in conflict with the client's testimony.

The opinion treats donated funds received by the lawyer as client funds and applies Rule 1.15's notification, delivery, segregation, and IOLTA requirements. It also applies confidentiality and truthfulness duties to the campaign itself.

Common questions

Q: Did administering the crowdfunding campaign require the lawyer to withdraw?

A: No. The Committee found no indication that the lawyer was likely to be a necessary witness at trial and concluded that Rule 3.7 did not require withdrawal on the stated facts.

Q: Does Rule 3.7 bar the lawyer from all pretrial work?

A: No. The opinion states that Rule 3.7(a) concerns advocacy at trial and does not bar participation in other portions of the case before trial or general advice.

Q: How are donations received by the lawyer treated?

A: They are client funds. The lawyer must promptly notify and deliver them under Rule 1.15(e), and must place them in an IOLTA account without commingling if they will be held before delivery.

Q: Is facilitating third-party donations prohibited financial assistance?

A: No. The Committee concluded that a lawyer who merely facilitates donations by third parties is not personally providing financial assistance within Rule 1.8(e).

Q: What confidentiality rule applies to a public campaign?

A: Rule 1.6 requires the client's informed consent before the lawyer discloses information relating to the representation. The opinion says consent can be required even without naming the client if the published information could reasonably identify the client.

Q: Who decides whether the lawyer is disqualified as a necessary witness?

A: The trial court decides the fact-specific issue if the opposing side moves for disqualification. The opinion also notes the Rule 3.7(a)(3) substantial-hardship exception.

Background and rules framework

The opinion separates the conduct of the crowdfunding campaign from the advocate-witness inquiry. Rules 1.6, 4.1, 1.15, and 1.8(e) govern disclosures, campaign statements, handling donations, and financial assistance. Rule 3.7 separately asks whether the lawyer is likely to be a necessary witness at trial.

The Committee listed five considerations relevant to a possible Rule 3.7 motion: privilege or confidentiality, whether the testimony concerns a disputed issue, whether other evidence can establish the point, whether the lawyer has first-hand knowledge, and whether the testimony would substantially conflict with the client's testimony.

Citations and references

Connecticut Rules of Professional Conduct:

• Rules 1.2(d), 1.4, 1.6, 1.7, 1.8(e), 1.15(b), 1.15(e), 1.16(a), 3.7, and 4.1

Other opinions cited:

• District of Columbia Bar Ethics Opinion 375 (2018), crowdfunding legal fees
• Philadelphia Bar Association Ethics Opinion 2015-6, crowdfunding legal fees
• New Hampshire Bar Association Ethics Opinion 2021-22/02, crowdfunding legal fees

See also

• D.C. Bar Ethics Op. 375: Crowdfunding legal fees
• NH Bar Ethics Op. 2021-22/02: Crowdfunding legal fees
• LSBA Op. 05-RPCC-007: Lawyer as witness

Source

• Landing page: Connecticut Bar Association Informal Ethics Opinions
• Original PDF: Informal Opinion 24-01