Can a lawyer require a client to advance litigation expenses, and withdraw if the client refuses to be liable for them?

Plain-English summary

A lawyer asked whether he could require a client to advance litigation expenses and, if the client refused, withdraw from the representation. The committee answered that the lawyer may ask the client to advance expenses for trial but may not assume ultimate liability for those expenses.

Under DR 5-103(B) of the former Code, a lawyer could advance or guarantee court costs and litigation expenses only on the condition that the client remained ultimately liable for them. The committee read that provision to bar the lawyer from taking on the client's ultimate responsibility for litigation costs, including court costs and disbursements, while allowing the lawyer to request that the client advance funds.

On withdrawal, the committee turned to DR 2-110(C), the permissive-withdrawal provision. It concluded the lawyer may seek leave to withdraw where, among other grounds, withdrawal can be accomplished without material adverse effect on the client, the client refuses ultimate responsibility for expenses, the client deliberately disregards an agreement to advance expenses, it becomes unreasonably difficult for the lawyer to carry out the representation effectively, the client knowingly and freely assents, or other good cause exists. The committee distinguished a true client discharge (governed by DR 2-110(B)) from a withdrawal grounded in a payment dispute, citing N.Y. State 598 (1989) for the point that a client's conscious, non-de minimis refusal to meet a payment obligation can be treated as a deliberate breach supporting permissive withdrawal. The committee noted it could not opine on the client's legal obligation to bear litigation expenses, an issue of law outside its jurisdiction.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on advancing litigation costs and on withdrawal have since been revised. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a lawyer ask the client to advance litigation expenses?

A: Yes. The committee concluded the lawyer may request the client to advance expenses for trial.

Q: Can the lawyer agree to be ultimately liable for the litigation expenses?

A: No. The committee read DR 5-103(B) to require that the client remain ultimately liable; the lawyer may not assume that ultimate liability.

Q: Can the lawyer withdraw if the client refuses to pay or to be liable for expenses?

A: The committee concluded the lawyer may seek leave to withdraw under DR 2-110(C) where a permissive-withdrawal ground is met, such as the client's deliberate disregard of an agreement to advance expenses.

Background and rules framework

The opinion interpreted DR 5-103(B) (advancing court costs and litigation expenses on condition of the client's ultimate liability), DR 2-110(A) and (C) (procedure and grounds for permissive withdrawal), and DR 7-101(A)(2) of New York's former Code. The closest Model Rule analogues are Rule 1.8(e) (financial assistance and advancing litigation costs) and Rule 1.16 (declining or terminating representation). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.8(e) (advancing litigation costs)
• MR 1.16 (declining or terminating representation)
• NY DR 5-103(B); DR 2-110(A), (C); DR 7-101(A)(2)

Other opinions cited:

• N.Y. State 598 (1989): nonpayment from financial inability can support permissive withdrawal if the breach is deliberate

See also

• NY State Bar Op. 666: Referral to a lender for living expenses
• NY State Bar Op. 674: Multiple representation of a corporation and its constituents

Source

• Landing page: https://nysba.org/opinion-653/