If an attorney who has paid out-of-pocket litigation costs is asked to withdraw before trial in favor of new counsel without reimbursement, what must the attorney do, and when may costs be advanced?

Plain-English summary

The committee addressed an attorney who had incurred out-of-pocket costs on pending litigation and was requested to withdraw, without reimbursement, in favor of another attorney before trial. It concluded the attorney must seek leave of court to withdraw in accord with DR 2-108(A)(3) and (C), and pursue collection of the fee through the courts.

On advancing costs, the committee concluded it is ethically permissible to advance costs only if the client specifically agrees to reimburse the attorney for suit expenses regardless of whether the litigation is successful.

Currency note

The Virginia State Bar withdrew this opinion on November 18, 2021, and the Editor's Note records that it was overruled in part by LEO 1546 (see footnote 1 of that opinion for scope). This opinion was issued in 1978, under Virginia's former Code of Professional Responsibility, before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. The committee note states that Rule 1.8(e)(2) now 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 Treat this page as historical context, not current guidance.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: Could the attorney just step aside without court leave?

A: Under this 1978 opinion, no. The committee directed the attorney to seek leave of court to withdraw and pursue the fee through the courts.

Q: When was advancing litigation costs permissible under the former rule?

A: Only if the client specifically agreed to reimburse the attorney for suit expenses regardless of whether the litigation was successful.

Q: Is this opinion still in force?

A: No. The Virginia State Bar withdrew it on November 18, 2021, and it was overruled in part by LEO 1546. Current Rule 1.8(e)(2) allows a lawyer to pay litigation costs for an indigent client.

Citations and references

Rules of Professional Conduct:

• DR 2-108(A)(3) and (C) (withdrawal) (former Code)
• DR 5-103(B) (advancing litigation expenses) (former Code)
• Virginia Rule 1.8(e)(2) (litigation costs for an indigent client) (cited in the committee note)
• ABA Model Rule 1.16 (declining or terminating representation)
• ABA Model Rule 1.8 (current client conflicts; financial assistance)

Other opinions cited:

• LEO 1546: overrules LEO 317 in part (per the Editor's Note)

See also

• VA LEO 374: Retaining Depositions and Advancing Costs (withdrawn)
• VA LEO 485: Advancing Litigation Expenses a Client Is Not Liable For (withdrawn)
• VA LEO 582: Guaranteeing Litigation Expenses (withdrawn)

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0317.pdf

Original opinion text

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

LEGAL ETHICS OPINION 317

WITHDRAWAL FROM EMPLOYMENT – ADVANCEMENT OF FEES BY ATTORNEYS.

Where an attorney has incurred out of pocket costs on pending litigation and is requested to withdraw without reimbursement in favor of another attorney before trial, the attorney must seek leave of court to withdraw in accord with II: DR:2-108(A)(3) and (C), and pursue collection of his fee through the courts. It is ethically permissible to advance costs only if the client specifically agrees to reimburse the attorney for suit expenses regardless of whether the litigation is successful.

Committee Opinion
December 12, 1978

Legal Ethics Committee Notes. – Rule 1.8(e)(2) allows a lawyer to pay litigation costs and expenses on behalf of an indigent client.

Editor’s Note. – Overruled in part by L E Op. No. 1546. See footnote 1 of the opinion for scope.