My client won and isn't indigent. Can I just waive the litigation costs, or does Rule 1.8(e) restrict that?

Plain-English summary

The inquiring attorney asked whether he may waive costs to a client where there is a successful recovery. The attorney did not believe that Rule 1.8(e) applied, because the client was not indigent and there had been a successful outcome.

The Panel set out Rule 1.8(e), which bars a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except that a lawyer may advance court costs and litigation expenses (repayment of which may be contingent on the outcome) and a lawyer representing an indigent client may pay such costs on the client's behalf.

The Panel agreed with the attorney's analysis that Rule 1.8(e) did not apply in this situation, and concluded that it was therefore the attorney's prerogative whether or not to waive the costs in the matter.

Currency note

This opinion was issued in 1994 (Opinion 94-33, issued June 2, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.8(e) as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.8. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a lawyer waive litigation costs after winning the case?

A: The Panel concluded it is the attorney's prerogative, because Rule 1.8(e) did not apply where the client was not indigent and the case succeeded.

Q: Why didn't Rule 1.8(e) restrict the waiver?

A: Rule 1.8(e) governs a lawyer's provision of financial assistance in connection with pending or contemplated litigation; the Panel agreed it did not reach a decision to waive costs after a successful recovery for a non-indigent client.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.8(e) (conflict of interest: financial assistance in litigation), the analog of Model Rule 1.8. The rule barred providing financial assistance to a client in connection with litigation, with exceptions for advancing court costs (repayment contingent on outcome) and paying costs for an indigent client. The Panel read the rule as not reaching the attorney's discretionary waiver of costs on a successful, non-indigent matter.

Citations and references

Rules of Professional Conduct:

• MR 1.8 / RI RPC 1.8(e) (financial assistance to a client in litigation; advancing and paying costs)

See also

• RI EAP Opinion 93-07: advancing litigation costs for indigent clients under Rule 1.8(e)(1)
• RI EAP Opinion 92-92: advancing litigation costs and recouping from a later recovery under Rule 1.8(e)(1)

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%2094-33.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

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FINAL

ETHICS ADVISORY PANEL
OPINION #94-33 REQUEST #494
Issued June 2, 1994

An inquiring attorney asks whether or not he/she may waive costs to a client where there is a successful recovery. The attorney does not believe that Rule 1.8(e) "Conflict of Interest: Business Transactions" applies in this matter because the client is not indigent and there has been a successful outcome.

Rule 1.8(e) states that:

(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 on behalf of the client.

The Panel agrees with the inquiring attorney's analysis that Rule 1.8(e) does not apply in this situation and therefore it is the attorney's prerogative whether or not to waive the costs in this matter.