May a California lawyer pay reasonable litigation costs (such as court reporter fees) that the client has refused to pay, without violating Rule 4-210?

Currency note

This opinion was issued in 1998, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct. Former Rule 4-210 corresponds to current Rule 1.8.5 (payment of personal or business expenses incurred by or for a client). 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 Treat this page as historical context, not current guidance.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.

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Plain-English summary

The committee considered an attorney who noticed depositions in a client's case, arranged for a court reporter, and submitted the reporter's invoices to the client for payment. The client refused to pay but did not instruct the attorney not to pay either. The committee analyzed whether the attorney could pay the reporter's bills without violating former Rule 4-210, which prohibits a lawyer from paying a client's personal or business expenses except in specified circumstances.

The committee reviewed authorities holding that advancing reasonable litigation costs is permissible even where repayment is uncertain (DeBlase v. Superior Court; Ripley v. Pappadopoulous; Ojeda v. Sharp Cabrillo Hospital; COPRAC Formal Opinion 1976-38; LACBA Opinion 379). The committee identified subparagraph (3) of Rule 4-210, which permits "advancing the costs of prosecuting or defending a claim or action," with repayment that "may be contingent on the outcome of the matter."

Because the reporter's fees would be recoverable as costs of litigation if the client prevailed (Code of Civil Procedure sections 1032 and 1033.5(a)(3)), the committee identified those fees as litigation expenses the repayment of which may be contingent on outcome.

The committee further concluded that Rule 4-210 does not condition advancement on a good-faith belief that costs will be repaid; the rule states that repayment "may be contingent on" the outcome. Drawing on Ojeda, the committee identified the attorney's separate contractual liability to vendors as a recognized basis on which costs may be advanced even when the client will not pay. The committee identified Business and Professions Code section 6147(a)(2) and section 6148(a)(1), where applicable, as requiring a written fee agreement setting forth the responsibilities of client and attorney for litigation costs.

The committee assumed three predicate facts: the attorney was authorized to incur the deposition expenses (evidenced by the client's knowledge and attendance), the client did not direct the attorney not to pay the costs personally, and the refusal was not based on dissatisfaction with the reporter's work.

Common questions

Q: May a California lawyer pay litigation costs the client has refused to pay?

A: Per the opinion, yes, under former Rule 4-210's safe harbor for advancement of litigation costs. The committee identified the repayment-may-be-contingent language as not requiring a good-faith belief that the costs will in fact be repaid.

Q: Does Rule 4-210 require the client to be obligated to repay?

A: Per the opinion, no. The committee identified the subparagraph (3) safe harbor as applying to reasonable litigation expenses with repayment that "may be contingent on the outcome of the matter," and observed that the rule does not condition the advancement on the fact of repayment.

Q: Does the fee agreement need to address cost responsibility?

A: Per the opinion, when Business and Professions Code section 6147(a)(2) or section 6148(a)(1) applies, the written fee agreement must set forth the responsibilities of client and attorney for litigation costs.

Q: What if the client directs the attorney not to pay the costs at all?

A: The committee identified this as outside the inquiry. Its analysis assumed the client refused to pay but did not direct the attorney not to pay personally; the committee further assumed the refusal was not based on dissatisfaction with the reporter's work.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 4-210, particularly subparagraph (A)(3), which permits an attorney to advance "the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client's interests, the repayment of which may be contingent on the outcome of the matter." The committee also referenced Business and Professions Code sections 6147 and 6148 (written fee agreement requirements) and Code of Civil Procedure sections 1032 and 1033.5(a)(3) (recoverable costs of litigation).

Citations and references

Rules of Professional Conduct (former):

• California Rule 4-210 (advancing litigation costs)

Statutes:

• California Business and Professions Code sections 6147, 6148
• California Code of Civil Procedure sections 1032, 1033.5(a)(3)

Cases:

• DeBlase v. Superior Court, 41 Cal.App.4th 1279 (1996), advancing client litigation expenses is commonplace
• Ojeda v. Sharp Cabrillo Hospital, 8 Cal.App.4th 1 (1992), attorney's separate contractual liability for litigation costs
• Ripley v. Pappadopoulous, 23 Cal.App.4th 1616 (1994), Rule 4-210 now permits advancement

Other opinions cited:

• COPRAC Formal Opinion 1976-38 (attorney advance of litigation costs)
• LACBA Opinion 379 (May 8, 1979) (same)

See also

• LACBA Opinion 499: Interest on Costs Advanced Requires Written Fee Agreement
• LACBA Opinion 478: Medical Liens and Disbursement of Client Funds
• LACBA Opinion 496: Liens on Recovery in Unrelated Case

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010615