Can a personal injury lawyer pay a client's hospital deposit so the client can get surgery during the case?

Plain-English summary

A client injured in an automobile accident needed prescribed back surgery but had no health insurance, and the hospital required a $2,000 deposit before admitting him. The client asked the attorney handling his case to advance the deposit. The question was whether the attorney could do so.

The opinion explained the long-standing common-law rule against advancing financial assistance to a client in litigation, rooted in concerns that such advances could be used to solicit clients, that a lawyer with a large financial stake might sacrifice the client's interests to recover the advance, and that the rule protects lawyers from clients "marketing" their cases. It identified the modern embodiment of that rule in Rule 1.8(d), which bars advancing or guaranteeing financial assistance to a client in litigation, with an exception for advancing the expenses of litigation under defined circumstances.

The opinion concluded that, although Rule 1.8(d) permits advancing the cost of a medical examination, that exception is limited to examinations necessary for litigation (such as for expert testimony or medical evidence), and does not extend to ordinary medical care. It concluded that living and medical expenses are not expenses of litigation and cannot be advanced. It noted that the Illinois Supreme Court had declined to revise the rule, and cited Topps v. Pratt & Callis and prior ISBA opinions (151, 87-10, 92-9). It concluded that the attorney may not advance money to the hospital to secure medical care for the client.

Currency note

This opinion was issued in 1995, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 1.8(e) with Comment [10]), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer pay a client's hospital deposit so the client can get treatment?

A: The opinion concluded no. Rule 1.8(d) bars advancing financial assistance to a client in litigation except for litigation expenses, and medical care is not a litigation expense.

Q: Doesn't Rule 1.8(d) allow advancing the cost of a medical examination?

A: The opinion concluded that exception is limited to examinations necessary for the litigation, such as for expert testimony or medical evidence, and does not cover ordinary medical treatment.

Q: Can a lawyer ever help a client with money?

A: The opinion noted (citing Opinion 92-9) that an attorney may assist a client in obtaining a loan to pay attorney fees; what Rule 1.8(d) prohibits is the lawyer guaranteeing or directly providing financial assistance beyond the expenses of litigation.

Background and rules framework

The opinion interpreted Rule 1.8(d) (advancing or guaranteeing financial assistance to a client, and the litigation-expense exception; Model Rule 1.8(e)). It traced the rule to the common-law prohibition and applied Illinois case law and prior ISBA opinions.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8(e) (financial assistance and litigation expenses) / Illinois Rule 1.8(d)

Cases:

• Topps v. Pratt & Callis, P.C., 206 Ill. App. 3d 298, 564 N.E.2d 196 (4th Dist. 1990), advancing living expenses improper
• In re The Illinois Trial Lawyers Association, M.R. 6852 (1993), petition to amend the rule denied

Other opinions cited:

• ISBA Advisory Opinions Nos. 151, 87-10, and 92-9

See also

• ISBA Ethics Op. 94-17: Responsibility for Court Reporter Fees
• CA COPRAC Op. 1976-038: Advancing Litigation Costs for a Client
• ABA Formal Op. 04-432: Posting Bail for a Client

Source

• Landing page: https://www.isba.org/ethics/opinions/9506