Can a lawyer advance court costs for a client who cannot afford the filing deposit?

Plain-English summary

A lawyer asked whether it was permissible to advance costs when filing a case for a client who did not have the money to deposit for costs.

The Board answered by quoting Rule 44, which provides that a lawyer may not properly agree with a client that the lawyer shall pay or bear the expenses of litigation, but may in good faith advance expenses as a matter of convenience, subject to reimbursement. The Board said the rule seemed self-explanatory: a member of the bar may, in good faith, advance expenses as a matter of convenience, but subject to reimbursement.

Currency note

This opinion was issued in 1933, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The advancement of litigation costs and expenses is governed today by a separate provision of the current Oklahoma Rules of Professional Conduct, which treats repayment differently in some cases. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Could a lawyer advance court costs for a client who could not pay the deposit?

A: Yes. The Board concluded that under Rule 44 a lawyer may in good faith advance expenses as a matter of convenience, subject to reimbursement.

Q: Could the lawyer agree to bear the costs outright?

A: No. Rule 44 provides that a lawyer may not properly agree that he shall pay or bear the expenses of litigation; the advance must be subject to reimbursement.

Background and rules framework

The opinion applied Rule 44 of the then-current Oklahoma Rules of Professional Conduct, patterned on the ABA Canons of Professional Ethics, which distinguished an improper agreement to bear litigation expenses from a permissible good-faith advance of expenses made subject to the client's reimbursement.

Citations and references

Rules of Professional Conduct:

• Rule 44 (1929 Oklahoma Rules of Professional Conduct): a lawyer may not agree to bear the expenses of litigation, but may in good faith advance expenses as a matter of convenience, subject to reimbursement.

See also

• Okla. Bar Ethics Op. 26: Contingent Fee, Deducting Costs Before the Fifty-Percent Split
• Okla. Bar Ethics Op. 29: Lawyer Buying a Client's Note to Sue on It
• Okla. Bar Ethics Op. 41: Contingent Fee in Divorce Cases Void Against Public Policy

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-57/

Original opinion text

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

Adopted October 27, 1933

The Board is in receipt of the following inquiry:

"Please advise me if it is all right for a lawyer to advance costs when filing a case for his client in the instance where his client does not have the necessary amount of money to deposit for costs."

In response:

Rule 44 of the rules of professional conduct provides:

"A lawyer may not properly agree with a client that the lawyer shall pay or bear the expenses of litigation; he may in good faith advance expenses as a matter of convenience, but subject to reimbursement."

This rule seems to be self-explanatory. A member of the bar may, in good faith, advance expenses as a matter of convenience, but subject to reimbursement.