Can a New York lawyer advance an indigent client's taxi and transportation costs to medical appointments in a no-fault injury case?
NY State Bar Ethics Opinion 1044: Advancing a client's transportation costs as a litigation expense
Short answer: A lawyer may advance an injury client's taxi and transportation costs only where they qualify as an expense of litigation; travel to an insurer-required independent medical examination clearly qualifies, travel to other doctors qualifies only when necessary to diagnose, assess, or demonstrate the client's condition for litigation, and for an indigent or pro bono client the lawyer may pay qualifying expenses without seeking repayment.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A lawyer represented an indigent client in a no-fault insurance matter. The insurer could require the client to attend an independent medical examination (IME) chosen by the insurer, and failure to attend could cut off or reduce benefits; the client also had appointments with treating physicians. The client could not pay the taxi and transportation costs to these appointments and asked the lawyer to advance them, either subject to repayment from the no-fault recovery or on a contingent basis (¶ 1, ¶ 2).
The committee analyzed Rule 1.8(e), which bars a lawyer from advancing financial assistance to a litigation client except that the lawyer may advance court costs and "expenses of litigation," with repayment that may be contingent on the outcome, and may pay such costs outright for an indigent or pro bono client (¶ 3). Comment [9B] limits permitted assistance to litigation-related court costs and expenses and excludes general "living or medical expenses," while Comment [10] explains the rule prevents lawyers from subsidizing lawsuits and acquiring too great a financial stake in them (¶ 4).
The question, then, was whether transportation costs are "expenses of litigation." The committee concluded that travel to and from the IME is clearly such an expense because the IME is a condition to receiving no-fault payments (¶ 6). Travel to other doctors or for treatment qualifies only when it is necessary to diagnose, assess, or demonstrate the client's condition, or the client's efforts to treat it, for litigation purposes, for example where the provider will testify about the injuries or where failure to obtain treatment could be used to minimize the claimed injuries; the committee believed many such costs would qualify as "costs of obtaining evidence" (¶ 6). Some costs of routine medical care to treat the injuries may not qualify, and where the line falls is a question of fact beyond the committee's jurisdiction (¶ 7). For an indigent or pro bono client, the lawyer may pay qualifying costs without seeking reimbursement (¶ 8).
In practice
Under the New York rule as it stood at the time of the opinion, the analysis turns on whether a given transportation cost is an "expense of litigation" under Rule 1.8(e). The opinion treats IME travel as a qualifying expense the lawyer may advance, contingent on the outcome. It treats travel to other medical appointments as qualifying only when the trip is necessary to diagnose, assess, or demonstrate the client's condition for litigation, and notes that some routine-treatment travel may not qualify, with the dividing line being a fact question the committee will not resolve. For an indigent or pro bono client, the opinion permits the lawyer to pay qualifying expenses outright. The committee also noted that if there were no contemplated or pending litigation, Rule 1.8(e) would not apply by its terms, and an advance would instead be governed by Rule 1.8(a) on lawyer-client business transactions (¶ 5 n.1).
Common questions
Q: Can a lawyer advance a no-fault client's transportation to an IME?
A: Yes. The committee concluded IME travel is clearly an expense of litigation because the IME is a condition to receiving no-fault payments, so the lawyer may advance it under Rule 1.8(e)(1), with repayment that may be contingent on the outcome (¶ 6, ¶ 8).
Q: What about travel to the client's own treating doctors?
A: It depends. Such travel qualifies as a litigation expense only when necessary to diagnose, assess, or demonstrate the client's condition for litigation, for instance where the provider will testify or where failure to obtain treatment could be used to minimize the injuries. Routine treatment travel may not qualify (¶ 6, ¶ 7).
Q: Can the lawyer just pay these costs for a client who cannot afford them?
A: For an indigent or pro bono client, yes, the lawyer may pay qualifying litigation expenses without seeking reimbursement under Rule 1.8(e)(2) (¶ 8).
Q: Who decides whether a particular cost is a litigation expense?
A: The committee stated that whether a given cost is a necessary expense of litigation is a question of fact beyond its jurisdiction to determine (¶ 7, ¶ 9).
Background and rules framework
The opinion interprets New York Rule 1.8(e), corresponding to ABA Model Rule 1.8(e), which prohibits advancing financial assistance to a litigation client except for court costs and expenses of litigation (repayable contingently) and, for indigent or pro bono clients, payment of such costs outright. The committee relied on Comments [9B] and [10] to Rule 1.8 for the scope of "expenses of litigation" and its rationale, and referenced Rule 1.8(a) for the situation where no litigation is pending.
Citations and references
Rules of Professional Conduct:
- MR 1.8(e) / NY RPC 1.8(e) (advancing court costs and litigation expenses)
- MR 1.8(a) / NY RPC 1.8(a) (lawyer-client business transactions, if no litigation pending)
- NY RPC 6.1, Comment [3] (definition of "poor person")
Cases:
- Healy v. Healy, 99 N.Y.S.2d 874 (Sup. Ct. Kings County 1950), defining "indigent"
Other opinions cited:
- N.Y. State 852 (2011) and N.Y. State 840 (2010): paying litigation expenses for indigent or pro bono clients
- N.Y. State 786 (2005): meaning of "indigent" under the predecessor rule
See also
- NY State Bar Op. 1051: Taking a contingent fee from a litigation-funding advance
- NY State Bar Op. 1066: Guaranteeing a client's loan for legal fees
- NY State Bar Op. 1258-A: Credit card fees as an expense
Source
- Landing page: https://nysba.org/ethics-opinion-1044/