My client is indigent, has moved out of state, and can't afford to travel back for court dates in her D.C.Y.F. and divorce cases. Can I pay for her transportation without violating the rules on giving clients money?

Plain-English summary

The inquiring attorney represents a client in two matters, a Family Court case involving the Rhode Island Department of Children, Youth and Families (D.C.Y.F.) and a divorce proceeding. The client has moved to the Midwest to live with her parents and siblings, and the attorney describes her financial situation as "dire," such that she cannot afford transportation to attend Rhode Island court dates. The attorney offered to reimburse a large portion of her travel costs, but only if ethically permitted to do so.

The panel applied Rule 1.8(e), which generally bars a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, subject to two exceptions: advancing court costs and litigation expenses whose repayment may be contingent on the outcome, and, for an indigent client, paying court costs and litigation expenses on the client's behalf. The panel quoted Comment 10 to Rule 1.8, which explains lawyers may lend clients court costs and litigation expenses, including the expenses of medical examinations and the costs of obtaining and presenting evidence, because such advances are "virtually indistinguishable from contingent fees and help ensure access to the courts," and that an exception permitting lawyers to pay an indigent client's court costs and litigation expenses whether or not repaid is warranted. The panel reasoned that an indigent client who cannot afford transportation to the courthouse is effectively denied access to the courts, and concluded that if the client is indigent and unable to afford the transportation costs for her D.C.Y.F. and divorce hearings, the attorney may pay those costs to ensure court access regardless of repayment, citing Connecticut Ethics Opinion 00-21 (2000), which reached the same conclusion for an indigent out-of-state client's travel to a deposition in a personal injury case.

In practice

The opinion holds that Rule 1.8(e)'s indigent-client exception permits a lawyer to pay an out-of-state client's transportation costs to attend court hearings, not just conventional litigation expenses like filing fees or expert costs, where the client's financial circumstances render her unable to afford travel and the payment is aimed at preserving access to the courts; the exception applies whether or not the costs are ever repaid.

Common questions

Q: Can I pay my indigent client's travel costs to get her to court?

A: Yes, on these facts. The opinion holds Rule 1.8(e)'s exception for indigent clients permits a lawyer to pay court costs and litigation expenses, including transportation costs needed for access to the courts, whether or not the client repays them.

Q: Does it matter that my client now lives out of state?

A: The opinion does not treat the client's out-of-state relocation as a bar; it applies the indigent-client exception to the client's transportation costs to attend Rhode Island court hearings in both her D.C.Y.F. and divorce matters, and cites a Connecticut opinion permitting the same for an out-of-state client's deposition travel.

Q: Do I have to be paid back eventually for this to be proper?

A: No. The opinion holds the exception in Rule 1.8(e)(2) for indigent clients applies "whether or not they are repaid," distinguishing it from the general advance-of-costs exception in Rule 1.8(e)(1), whose repayment may be contingent on the litigation's outcome.

Background and rules framework

The opinion applies Rhode Island Rule 1.8(e) (Conflict of Interest: Current Clients; Specific Rules), which bars a lawyer from providing financial assistance to a client in connection with litigation except for advancing court costs and litigation expenses with contingent repayment, and, for an indigent client, paying court costs and litigation expenses without regard to repayment. Comment 10 to Rule 1.8 frames these advances as similar in effect to contingent fees, justified by the goal of ensuring access to the courts.

Citations and references

Rules of Professional Conduct:

• MR 1.8(e) (financial assistance to a client; exceptions for cost advances and indigent clients) and Comment 10

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• Connecticut Ethics Op. 00-21 (2000): a lawyer may pay an indigent out-of-state client's travel costs to a deposition in the client's personal injury case.

See also

• ABA Formal Op. 04-432: Lawyer Arranging or Posting Bail for a Client
• Alabama Ethics Op. 1997-02: An attorney may pay an expert witness a reasonable and customary fee

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2012-08.pdf

Original opinion text

Final

                                 Rhode Island Supreme Court
                               Ethics Advisory Panel Op. 2012-08
                                    Issued October 11, 1012


    FACTS:

            The inquiring attorney represents a client in two matters, a Family Court matter
    that involves the Rhode Island Department of Children, Youth and Families (D.C.Y.F),
    and a divorce proceeding. The client has moved to the Midwest to reside with her
    parents and siblings. The inquiring attorney states that the "client's financial situation is
    dire" and that she cannot afford the costs of transportation to attend court dates in Rhode
    Island. The inquiring attorney has offered to reimburse the client for a large portion of
    her transportation costs, but only if he/she is ethically permitted to do so.

    ISSUE PRESENTED:

            The inquiring attorney asks whether he/she may reimburse his/her client, whose
    financial situation is dire, the costs of transportation which she incurs to attend court
    hearings in Rhode Island.

    OPINION:

             If the inquiring attorney's out-of-state client is indigent and is unable to afford
    transportation costs to attend court hearings in the D.C.Y.F. matter and in her divorce
    case, the inquiring attorney may pay the client's transportation costs in order to ensure
    access to the courts, regardless of whether those costs will be repaid.

    REASONING:

           Rule 1.8(e) of the Rules of Professional Conduct states as follows.


                   (e) A lawyer shall not provide financial assistance to a
                   client in connection with pending or contemplated
                   litigation, except that:

                   (1) a lawyer may advance court costs and expenses of
                   litigation the repayment of which may be contingent on the
                   outcome of the matter; and

                   (2) a lawyer representing an indigent client may pay court
                   costs and expenses of litigation of behalf of the client.

Final Op. 2012-08
Page |2

           In the instant inquiry, the inquiring attorney seeks to reimburse his/her out-of-
  state client the costs of transportation. The comments to Rule 1.8 state that lawyers may
  lend clients court costs and litigation expenses including "the expenses of medical
  examination and the costs of obtaining and presenting evidence, because these advances
  are virtually indistinguishable from contingent fees and help ensure access to the courts."
  Rule 1.8, comment [10]. The Comment also states that an exception that permits lawyers
  to pay court costs and litigation expenses of indigent clients whether or not they are
  repaid is warranted. Id.

          In the opinion of the Panel, an indigent client who cannot afford transportation to
  the courthouse is effectively denied access to the courts. The inquiring attorney has
  described his/her client's financial status as "dire." The Panel concludes that, if the out-
  of state client is indigent and is unable to afford transportation costs to attend court
  hearings in the D.C.Y.F. matter and in her divorce case, the inquiring attorney may pay
  the client's transportation costs in order to ensure access to the courts, regardless of
  whether those costs will be repaid. See Conn. Ethics Op. 00-21 (2000) (lawyer may pay
  for indigent out-of-state client's travel to deposition in client's personal injury case.)