Can a lawyer advance a client's court-imposed fines and costs at sentencing and seek reimbursement from the client?

Plain-English summary

A firm representing commercial trucking companies and their drivers asked whether a lawyer may advance the fines and costs assessed against a client at sentencing and then seek reimbursement. Because drivers are often on the road and not present in court when a guilty or responsible plea is entered, and because district courts were enforcing MCR 1.110, which requires that fines and costs "be paid at the time of assessment" absent good cause, the firm wanted to pay at sentencing on the client's behalf.

The Committee analyzed the question under MRPC 1.8(e), which bars a lawyer from giving financial assistance to a client "in connection with pending or contemplated litigation," except that a lawyer "may advance court costs and expenses of litigation, the repayment of which shall ultimately be the responsibility of the client." It noted that MCL 600.2665 prohibits a lawyer from posting bail for a client, but found no statute barring a lawyer from advancing fines and costs.

The Committee reasoned that fines and costs are assessed as part of the sentence, imposed at the end of the proceeding after a plea or conviction, at which point "the litigation can be considered essentially concluded, as clearly no appeal is contemplated." On that basis it concluded that advancing fines and costs in the contemplated situation would not violate MRPC 1.8(e), and observed that the advance would help the client comply with MCR 1.110.

In practice

The opinion holds that, under MRPC 1.8(e) as it stood at the time, a lawyer may advance court-imposed fines and costs for a client at sentencing so long as the client ultimately remains responsible for reimbursing the lawyer. Per the opinion, the analysis turns on the timing: because fines and costs are imposed at the end of the case when no appeal is contemplated, the advance is not financial assistance "in connection with pending or contemplated litigation." The opinion distinguishes posting bail, which MCL 600.2665 prohibits.

Common questions

Q: Can a lawyer pay a client's fines and costs at sentencing and bill the client later?

A: The opinion concluded that a lawyer may, provided the client remains ultimately responsible for reimbursing the advance, because at sentencing the litigation is essentially concluded.

Q: Doesn't MRPC 1.8(e) bar financial assistance to a client?

A: Per the opinion, MRPC 1.8(e) bars financial assistance "in connection with pending or contemplated litigation" but expressly allows advancing court costs and expenses for which the client is ultimately responsible; the Committee treated post-sentence fines and costs as outside the pending-litigation concern.

Q: Can a lawyer also post bail for the client?

A: No. The opinion notes that MCL 600.2665 prohibits a lawyer from posting bail for a client charged with a criminal offense, and contrasts that with the absence of any statute barring the advancement of fines and costs.

Background and rules framework

The opinion interprets MRPC 1.8(e) / Model Rule 1.8(e) (financial assistance to a client; the exception for advancing court costs and litigation expenses the client must ultimately repay), read against MCR 1.110 (timing of payment of fines and costs) and MCL 600.2665 (no lawyer-posted bail). The analysis turns on whether a post-sentence advance is assistance "in connection with pending or contemplated litigation."

Citations and references

Rules of Professional Conduct:

• MRPC 1.8(e) / Model Rule 1.8(e) (financial assistance; advancing court costs the client must ultimately repay)

Statutes and court rules:

• MCR 1.110 (fines, costs, and other financial obligations must be paid at the time of assessment absent good cause)
• MCL 600.2665 (a lawyer may not post bail for a client charged with a criminal offense)

See also

• Mich Ethics Op. RI-336: Financing Litigation Costs Through a Third-Party Loan
• Mich Ethics Op. RI-14: Financial Assistance for a Client's Living Expenses
• Mich Ethics Op. RI-321: Referring Tort Clients to a Venture-Capital Litigation Funder

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1203&Type=6

Original opinion text

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

RI-333

November 7, 2003

SYLLABUS

A lawyer is not precluded by the Michigan Rules of Professional Conduct from advancing court-imposed fines and costs on behalf of a client, provided the client remains responsible for reimbursing the lawyer for the fines and costs advanced.

References: MRPC 1.8(e); MCR 1.110; MCL 600.2665.

TEXT

A law firm represents a number of commercial trucking companies. These companies, as well as their drivers, commit a variety of offenses, both criminal misdemeanors and civil infractions These offenses include, but are not limited to, traffic equipment and loading violations. After a company/driver has either been convicted or has pled guilty or responsible to one of these offenses, the company/driver may be assessed fines and costs as part of the sentence.

Because the nature of the driver's work requires him/her to be on the road much of the time, often in the case of a guilty or responsible plea the driver is not present in court at sentencing when fines and costs are assessed.

The firm's attorneys report that district courts are enforcing MCR 1.110 (adopted January 1, 2002), which requires that "[F]ines, costs, and other financial obligations imposed by the court must be paid at the time of assessment, except when the court allows otherwise, for good cause shown".

The members of the firm request an opinion on whether or not the individual lawyer representing the company and/or driver may ethically advance the fines and costs on behalf of the trucking company and/or driver and seek reimbursement from the client.

MRPC 1.8(e) prohibits a lawyer from providing financial assistance to a client "in connection with pending or contemplated litigation," except that "a lawyer may advance court costs and expenses of litigation, the repayment of which shall ultimately be the responsibility of the client; . . . ."

MCL 600.2665 provides that a lawyer may not post bail for a client charged with a criminal offense. However, there is no statute in effect prohibiting a lawyer from advancing fines and costs on behalf of a client.

The assessment of fines and costs to a defendant occurs as a part of the sentence, imposed at the end of the court proceeding in which the defendant either pled guilty/responsible or was convicted. At that point, the litigation can be considered essentially concluded, as clearly no appeal is contemplated. Thus, the advancement of fines and costs in the contemplated situation would not violate MRPC 1.8(e).

Moreover, the advancement of fines and costs by the lawyer on the case on behalf of the trucking company and/or its driver/employee would ensure that both trucking company and driver/employee complied with the provisions of MCR 1.110.