Can a lawyer pay the litigation expenses of a pro bono client that is not itself indigent, such as a legal-services organization?

Plain-English summary

The question is whether a lawyer may pay the litigation expenses of a pro bono client that is an organization providing legal services to the indigent, even though the organization itself is not indigent. The opinion answers yes, and explains that the answer changed with the rules.

The opinion contrasts the current rule with N.Y. State 786 (2005). At the time of Opinion 786, DR 5-103(B)(2) of the former Code required that a client be both pro bono and indigent before the lawyer could pay the client's litigation expenses. Rule 1.8(e)(2) of the current Rules instead provides that "a lawyer representing an indigent or pro bono client may pay court costs and expenses of litigation on behalf of the client." Because the rule now uses "or," the opinion reasons that as long as the lawyer represents the client on a pro bono basis, the lawyer may pay the client's court costs and litigation expenses whether or not the client is indigent.

The opinion concludes that a lawyer providing pro bono representation to an organization that delivers legal services to the indigent may pay the organization's litigation expenses whether or not the organization is indigent. A footnote notes that the relevant rule amendment originally took effect February 1, 2007, predating the April 1, 2009 reformatting into the Model Rules structure.

In practice

Under this opinion, the indigence of a pro bono client is not a precondition to a lawyer's payment of the client's court costs and litigation expenses; Rule 1.8(e)(2) permits payment for either an indigent or a pro bono client. The opinion holds that a lawyer representing a non-indigent legal-services organization on a pro bono basis may pay that organization's litigation expenses.

Common questions

Q: Must a pro bono client be indigent before a lawyer can pay its litigation costs?

A: No. The opinion concludes that under Rule 1.8(e)(2), which is phrased in the alternative ("indigent or pro bono"), the lawyer may pay the expenses of a pro bono client whether or not the client is indigent.

Q: Can a lawyer pay litigation expenses for a non-indigent legal-services organization it represents pro bono?

A: Yes. The opinion concludes a lawyer providing pro bono representation to an organization that serves the indigent may pay the organization's litigation expenses regardless of the organization's own financial status.

Q: How does this differ from the prior rule?

A: The opinion explains that the former DR 5-103(B)(2) required a client to be both pro bono and indigent, while current Rule 1.8(e)(2) requires only one of the two, changing the result reached in N.Y. State 786 (2005).

Background and rules framework

The opinion interprets New York Rule 1.8(e)(2), part of Rule 1.8 (Model Rule 1.8, current-client specific rules), which addresses a lawyer's payment of court costs and litigation expenses. The opinion's analysis turns on the wording change from the former DR 5-103(B)(2) (requiring a client to be both pro bono and indigent) to Rule 1.8(e)(2) (permitting payment for an indigent or pro bono client).

Citations and references

Rules of Professional Conduct:

• MR 1.8 (current clients: specific rules)
• NY Rule 1.8(e)(2) (paying court costs and litigation expenses for an indigent or pro bono client)
• Former DR 5-103(B)(2)

Other opinions cited:

• N.Y. State 786 (2005): under the former Code, a client had to be both pro bono and indigent

See also

• NY State Bar Op. 852: Settlement agreements requiring the attorney to indemnify
• NY State Bar Op. 855: Conflict of interest in referral of clients to a spouse's firm

Source

• Landing page: https://nysba.org/ethics-opinion-840/