In a personal-injury case, can a lawyer advance the cost of a client's medical records, and must the lawyer pay a doctor who is withholding records over a fee?

Plain-English summary

A firm took over a personal-injury case from another attorney and sent the proper authorization forms to the client's doctor for release of medical records. The doctor asked the firm to guarantee payment upon settlement and to pay $400 per day if he had to testify; the firm agreed but never received the records. The doctor then called the clients and told them to change attorneys because he would not release records until his fee was paid. The firm planned to subpoena the records and asked whether it had to pay the doctor for them, given that it would be forced to go to court.

The committee set out DR 5-103(B), under which a lawyer representing a client in contemplated or pending litigation shall not advance or guarantee financial assistance to the client, except that the lawyer may advance or guarantee the expenses of litigation, including court costs, investigation expenses, medical-examination expenses, and the costs of obtaining and presenting evidence, provided the client remains ultimately liable. The committee advised that, should the doctor release the records, the lawyer may advance the costs of the records as long as the client remains ultimately liable for that expense. Whether the lawyer was obligated to pay the doctor for the records the firm had subpoenaed was a legal question beyond the committee's purview.

Currency note

The Virginia State Bar withdrew this opinion on November 18, 2021 (the body is headed "Committee Op Withdrawn November 18, 2021"). It was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rule it cites), before the adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note records, current Rule 1.8(e)(2) allows a lawyer to pay litigation costs and expenses on behalf of an indigent client. Treat this page as historical context, not current guidance.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 advance the cost of a client's medical records?

A: Under this 1988 opinion (since withdrawn), yes. DR 5-103(B) let the lawyer advance the costs of obtaining records as a litigation expense, provided the client remained ultimately liable.

Q: Did the committee decide whether the lawyer had to pay the doctor for subpoenaed records?

A: No. The committee said whether the lawyer was obligated to pay the doctor for the subpoenaed records was a legal question beyond its purview.

Background and rules framework

The opinion interpreted former Virginia DR 5-103(B), which barred advancing financial assistance to a client but allowed advancing litigation expenses (including the costs of obtaining and presenting evidence) if the client remained ultimately liable. The current analog is Rule 1.8(e), the counterpart of ABA Model Rule 1.8(e); as the committee note records, Rule 1.8(e)(2) permits paying litigation costs for an indigent client.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-103(B) (advancing litigation expenses; client ultimately liable)
• ABA Model Rule 1.8 (financial assistance to clients)

Other opinions cited:

• Virginia LE Op. 773 and LE Op. 820: advancing litigation expenses.

See also

• VA LEO 1133: Reporting a Lawyer Who Advanced Funds
• VA LEO 1237: Collecting Advanced Costs From a Client
• VA LEO 1182: Paying a Provider From a Client's Recovery

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1060.pdf

Original opinion text

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

Committee Opinion
March 31, 1988
Committee Op Withdrawn
November 18, 2021
LEGAL ETHICS OPINION 1060

COSTS – MEDICAL RECORDS.

You advise that your firm took on a personal injury case from another attorney a month
ago. The proper authorization forms were sent to the doctor for release of medical
records. In return, your office received a request from the doctor to guarantee payment
upon settlement and to pay him $400 per day if he had to testify in court. Your firm
agreed to the above, but never received the doctor's records. You also advise that the
doctor called your clients and advised them to change attorneys since he was not going to
release records until his fee was paid. Your firm plans to subpoena the records.
You wish to know whether you must pay the doctor for the records since your firm will
be forced to go to court to secure them.
Disciplinary Rule 5-103(B) [ DR:5-103] states that, "While representing a client in
connection with contemplated or pending litigation, a lawyer shall not advance or
guarantee financial assistance to his client, except that the lawyer may advance or
guarantee the expenses of litigation, including court costs, expenses of investigation,
expenses of medical examination, and costs of obtaining and presenting evidence,
provided the client remains ultimately liable for such expenses." See also L E Op. No.
773 and L E Op. No. 820.
The Committee advises that pursuant to DR:5-103(B), should the doctor release the
records, you may advance the costs of the records provided your client remains ultimately
liable for such expenses. Whether you are obligated to pay the doctor for the records
which you have had subpoenaed is a legal question beyond the purview of this
Committee.
Committee Opinion
March 31, 1988
Legal Ethics Committee Notes. – Rule 1.8(e)(2) allows a lawyer to pay litigation costs
and expenses on behalf of an indigent client.