May a lawyer advance settlement funds to a brain-injured client and seek protective appointment after a discharge?

Plain-English summary

A brain-injured client asked for advances against an expected recovery, then said the lawyer was discharged. The lawyer questioned the client’s ability to decide and asked about funding, withdrawal, and civil commitment.

The opinion cites Rule 4-1.8(e)’s bar on financial assistance beyond costs and litigation expenses. It says Rule 4-1.14 appears to give discretion to seek appointment of a guardian or guardian ad litem. If the lawyer believes the client can decide in the client’s own interests about the discharge, the lawyer may accept that decision without further action. The official page notes a 2021 amendment to Rule 4-1.8.

Currency note

The official page says Rule 4-1.8 was amended effective November 23, 2021, and directs readers to Rule 4-1.8(e)(3) and Comments [11] through [13]. Treat this 1996 answer as historical context and verify current rules before relying on it.

Common questions

Q: Did the opinion permit an advance against recovery for living needs?

A: No. It describes Rule 4-1.8(e) as barring client financial assistance except court costs and litigation expenses.

Q: Did it require a guardianship filing?

A: No. It describes discretion to seek protective appointment under Rule 4-1.14.

Background and rules framework

The answer cites Rules 4-1.8(e) and 4-1.14. The official page notes that Rule 4-1.8 was amended in 2021.

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.8(e)
• Rule 4-1.14

See also

• Missouri Informal Op. 970115: Indigent Trial Costs
• Missouri Informal Op. 970030: Diagnostic Fee Advance

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/960169/

Original opinion text

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

Reference Note: Rule 4–1.8, Conflict of Interest: Prohibited Transactions, was amended effective November 23, 2021. This informal opinion predates that amendment and should be read with Rule 4–1.8(e)(3) and Comments [11], [12], and [13].

QUESTION: Attorney represents a client who has suffered from brain injury. The client has been under the influence of various people. The client has asked Attorney for advances against an anticipated settlement or award. Subsequent to these influences, the client has indicated that Attorney is discharged. Attorney questions the client´s competence for various reasons described. May Attorney advance the funds? Must Attorney withdraw or may Attorney initiate a civil commitment proceeding?

ANSWER: Rule 4–1.8(e) prohibits a lawyer from providing financial assistance to a client, other than advancing court costs and litigation expenses. Based on the information Attorney has provided, it appears that Rule 4 – 1.14, Client Under a Disability, would give the Attorney discretion to seek the appointment of a guardian or, if possible, a guardian ad litem. If Attorney believes that the client is capable of making a decision in the client´s own interests with regard to the question of discharging Attorney, Attorney may accept the decision to discharge without further action.