Can court-appointed or pro bono counsel in a death-penalty case advance the cost of an expert witness when the indigent client has no realistic way to repay it?

Plain-English summary

The inquiry asked whether court-appointed or pro bono counsel may advance the costs of an expert witness needed to establish claims of constitutional error brought by a death-row inmate, where there is no probability that the client will ultimately reimburse counsel for those costs.

The committee reviewed its earlier opinions on advancing litigation costs, which generally allowed advances if the client remained "ultimately responsible" (LE Op. 317, LE Op. 820, and LE Op. 941), all based on DR 5-103(A), under which an attorney may advance litigation costs provided the client remains ultimately liable, and on Ethical Consideration 5-8, under which a lawyer may provide or guarantee costs but the liability for them must be the client's. It noted LE Op. 485, which had found it improper for a private law firm to advance costs where the client would not be ultimately liable, even in a class action with indigent members, in part because advancing funds in civil-rights litigation could affect the lawyer's independence of judgment as to settlement and appeals.

The committee distinguished the capital case before it. It said there was no danger to independence of judgment because death-penalty cases present only one avenue of relief, and it found it extremely unfair for a client in a death-penalty case to be denied effective representation because he is indigent and unable to repay costs advanced. The committee opined that it was not improper for a lawyer to advance litigation costs for an indigent client in a death-penalty case when there is no reasonable expectation of repayment. The committee note records that current Rule 1.8(e)(2) allows a lawyer to pay litigation costs and expenses on behalf of an indigent client.

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The Virginia State Bar withdrew this opinion on November 18, 2021 (the body is headed "Committee Op Withdrawn November 18, 2021").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 1987, 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 without requiring repayment. Treat this page as historical context, not current guidance.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 a lawyer advance an indigent capital client's expert-witness costs with no expectation of repayment?

A: Under this now-withdrawn 1987 opinion, yes. The committee opined it was not improper to advance litigation costs for an indigent death-penalty client where there was no reasonable expectation of repayment.

Q: Why did the committee depart from the usual "client remains ultimately liable" rule?

A: It distinguished its earlier cost-advance opinions on the ground that death-penalty cases present only one avenue of relief, so advancing funds would not affect the lawyer's independence of judgment as to settlement or appeals.

Q: Is this opinion still in force?

A: No. The Virginia State Bar withdrew it on November 18, 2021. The committee note points to current Rule 1.8(e)(2) on paying an indigent client's litigation costs.

Background and rules framework

The opinion interpreted former Virginia DR 5-103(A) (advancing litigation costs where the client remains ultimately liable) and Ethical Consideration 5-8, against the backdrop of its prior opinions LE Op. 317, 820, 941, and 485. The committee note maps the question onto current Virginia Rule 1.8(e)(2), the counterpart of ABA Model Rule 1.8(e), which allows a lawyer to pay an indigent client's court costs and litigation expenses.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 5-103(A) (advancing litigation costs; client ultimately liable)
• Former Virginia EC 5-8 (liability for advanced costs must be the client's)
• Virginia Rule 1.8(e)(2) / ABA Model Rule 1.8(e) (paying litigation costs for an indigent client)

Other opinions cited:

• LE Op. 317, LE Op. 820, LE Op. 941: costs may be advanced if the client remains ultimately responsible
• LE Op. 485: improper for a private firm to advance costs where the client will not be ultimately liable

See also

• VA LEO 1060: Advancing the Cost of a Client's Medical Records
• VA LEO 1237: Advancing Litigation Costs and Collecting From a Solvent Client
• VA LEO 1182: Contracting With a Healthcare Provider and Paying From Recovery

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/0997.pdf

Original opinion text

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

Committee Opinion
November 13, 1987
Committee Op Withdrawn
November 18, 2021
LEGAL ETHICS OPINION 997

LAW FIRM–ADVANCING COSTS OF
LITIGATION

You ask whether a court-appointed or pro bono counsel may advance the costs of an expert witness whose services are necessary to establish claims of constitutional error brought by a death row inmate, where there is no probability that the client will ultimately reimburse counsel for those costs. Earlier Legal Ethics Opinions address the subject of advancing costs of litigation on behalf of a client. Generally, these opinions state that costs may be advanced if the client remains "ultimately responsible". (See LE Op. 317, LE Op. 820 and LE Op. 941). These opinions were all based upon DR:5-103(A) of the Code, which provides that an attorney may advance costs of litigation provided the client remains ultimately liable for such expenses. Ethical Consideration 5-8 provides that a lawyer may provide or guarantee costs but the liability for such costs must be that of the client. LE Op. 485 states that "it is improper for a private law firm to advance the costs and expenses of litigation where the client will not be ultimately liable for these costs and expenses. This is so even in a class action--where there is not a readily identifiable 'client'--and even though the class members are indigent". LE Op. 485 was based also on the possibility that the advancement of funds by a private attorney in a civil rights litigation could affect independence of judgment as to settlement and appeals. There is no danger of that occurring in the instant situation since there is only one avenue of relief in death penalty cases. The Committee finds it extremely unfair for a client, particularly in a death penalty case, to be denied effective representation because he is indigent and unable to ultimately pay his attorney for costs advanced. The Committee, therefore, opines that it is not improper for a lawyer to advance the costs of litigation for an indigent client in a death penalty case, when there is no reasonable expectation that the client will be able to repay the lawyer for the costs advanced. Committee Opinion November 13, 1987 Legal Ethics Committee Notes. – Rule 1.8(e)(2) allows a lawyer to pay litigation costs and expenses on behalf of an indigent client.