May a domestic relations attorney keep deposition copies whose costs the attorney advanced until the discharged client pays, and when is advancing those costs proper?

Plain-English summary

The committee addressed two questions for a domestic relations attorney who had advanced the costs of depositions. First, it concluded the attorney could retain the copy of the depositions after being discharged by the client, pending the client's payment of the deposition costs, provided the retention did not prejudice the client and the client was not otherwise legally entitled to possession.

Second, on advancing the costs in the first place, the committee concluded that advancement was proper only if the client had agreed to reimburse the attorney regardless of the outcome of the litigation. It cited DR 2-108(D), DR 9-102(B)(4), and DR 5-103(B).

Currency note

The Virginia State Bar withdrew this opinion on November 18, 2021. This opinion was issued in 1980, 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, which is broader than the former rule's requirement of a client repayment promise. Treat this page as historical context, not current guidance.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 an attorney hold deposition copies until the discharged client paid for them?

A: Under this 1980 opinion, yes, the attorney could retain the deposition copies pending payment of the advanced costs, but only if the retention did not prejudice the client and the client was not otherwise legally entitled to possession.

Q: When was advancing the deposition costs proper under the former rule?

A: Only if the client had agreed to reimburse the attorney regardless of the outcome of the litigation, per DR 5-103(B).

Q: Is this opinion still in force?

A: No. The Virginia State Bar withdrew it on November 18, 2021. The committee note records that 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(D) (former Code)
• DR 9-102(B)(4) (delivering client property) (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 1.8 (current client conflicts; financial assistance)
• ABA Model Rule 1.16 (return of client property on termination)

See also

• VA LEO 485: Advancing Litigation Expenses a Client Is Not Liable For (withdrawn)
• VA LEO 582: Guaranteeing Litigation Expenses (withdrawn)
• VA LEO 465: Retaining Lien on Client Property for Unpaid Fees

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0374.pdf

Original opinion text

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

LEGAL ETHICS OPINION 374

POSSESSORY LIEN – ADVANCEMENT OF COSTS.

It is not improper for a domestic relations attorney to retain the copy of the depositions for which he has advanced the costs, after discharge of the attorney by the client pending payment of the deposition's costs by the client if such retention does not prejudice the client and the client is not otherwise legally entitled to possession of the deposition. [See II:DR 2-108(D) and II:DR 9-102(B)(4).] Advancement of such costs is only proper if the client has agreed to reimburse the attorney regardless of the outcome of the litigation. [See II: DR:5-103(B).]

Committee Opinion
June 17, 1980

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