Ezel / Ethics Opinions / NYSBA
NYSBA 2024-11-26

Can a nonprofit criminal defense organization set up and run GoFundMe pages to help its indigent clients cover living expenses after release?

Short answer: Yes, with conditions. The opinion concludes a nonprofit defense organization may administer GoFundMe pages for indigent current clients under Rule 1.8(e)(4)'s humanitarian exception if the assistance is given as gifts (not loans), is not promised before retention or as an inducement to continue, and the organization protects client confidentiality.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1277: Crowdfunding for Indigent Defense Clients

Short answer: The opinion concludes that a nonprofit criminal defense organization may set up and administer GoFundMe pages for the benefit of indigent current clients, provided the financial assistance is rendered as gifts and not loans, and is not promised before retention or as an inducement to continue the lawyer-client relationship, and provided the organization complies with its confidentiality duties.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York'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

The inquirer works for a nonprofit indigent criminal defense organization whose clients include incarcerated people who will have no financial resources on release. The organization asked whether it may set up and administer GoFundMe pages to help those clients raise public donations for living expenses after release. The opinion notes it does not address the legality or tax implications of the GoFundMe activity, which are questions of law.

The opinion applies Rule 1.8(e), which generally bars a lawyer from advancing or guaranteeing financial assistance to a client in connection with contemplated or pending litigation, and the exception in Rule 1.8(e)(4) added in 2020, the "humanitarian exception." That exception allows a lawyer providing services without fee, a not-for-profit legal services or public interest organization, or a law school clinical or pro bono program to provide financial assistance to indigent clients, but the assistance may not be promised before retention or as an inducement to continue, may not come from funds raised for legal services, and may not be a loan or other support that makes the client financially beholden to the provider. The opinion concludes that so long as the GoFundMe funds are disbursed as outright gifts, the organization may administer the pages, and points to Comment [10A] to Rule 1.8 for examples of permitted assistance such as food, rent, clothing, and medicine.

The opinion adds that the organization must comply with confidentiality under Rule 1.6(a), taking care that nothing on the GoFundMe page is likely to be embarrassing or detrimental to the client, waives the privilege, or was requested to be kept confidential, absent informed consent. It notes that Rule 1.9(c) imposes a similar duty toward former clients if the indigent clients later become former clients. Finally, it reiterates that under Rule 1.8(e)(4) the organization may not promise the assistance before retention or as an inducement to continue.

In practice

Under this opinion, a nonprofit defense organization may run GoFundMe pages for indigent current clients if the assistance is given as gifts rather than loans, is not promised before retention or as an inducement to continue, and is not drawn from funds raised for legal services. Per the opinion, the organization must also protect client confidentiality under Rule 1.6(a) (and Rule 1.9(c) for former clients) by keeping privileged or potentially embarrassing or detrimental information off the page absent informed consent.

Common questions

Q: Can a nonprofit defender set up a GoFundMe for an indigent client's post-release expenses?

A: Per the opinion, yes, under the Rule 1.8(e)(4) humanitarian exception, if the assistance is given as gifts and not loans and is not promised before retention or as an inducement to continue.

Q: Where can the assistance money come from?

A: Per the opinion, it may not come from funds raised for legal services, and it must be a gift rather than a loan or other support that makes the client financially beholden to the provider.

Q: What confidentiality limits apply to the GoFundMe page?

A: Per the opinion, under Rule 1.6(a) the organization must avoid posting information that is privileged, that the client asked to be kept confidential, or that is likely to be embarrassing or detrimental to the client, absent informed consent; Rule 1.9(c) applies the same duty to former clients.

Background and rules framework

The opinion interprets New York Rule 1.8(e) and the Rule 1.8(e)(4) "humanitarian exception" (financial assistance to indigent clients), Rule 1.6(a) (confidentiality), and Rule 1.9(c) (former-client confidentiality). These correspond to ABA Model Rules 1.8, 1.6, and 1.9; New York's Rule 1.8(e)(4) is a New York provision adopted in 2020.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.6(a), 1.8(e)(4), 1.9(c)
  • ABA Model Rules 1.8, 1.6, 1.9 (analogues)

Other opinions cited:

  • N.Y. State 1059 (2015): whether information is confidential depends on context and the precise information

See also

Source