May a Vermont personal injury lawyer promise at intake to waive advanced litigation costs if the case is lost?
Apply this to your situation
This page answers the general question as of 1998. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A personal injury lawyer asked whether a retainer could promise to waive costs advanced for a client if the case was lost. The committee analyzed the question under former DR 5-103(B), which allowed litigation expenses to be advanced if the client remained ultimately liable, with stated exceptions for an indigent client or a party to a class action.
The committee concluded that an advance waiver would amount to an impermissible guarantee of financial assistance. It said the lawyer must make an actual, good-faith attempt to determine whether the client is indigent because the rule did not define that term. The committee expressly declined to decide whether waiving costs was legal.
The opinion also quoted proposed Model Rule 1.8(e) while the Vermont Supreme Court was considering adoption of the Model Rules. The committee observed that the proposed rule differed from the then-applicable Vermont Code's ultimate-liability requirement.
Currency note
This opinion was issued in 1998 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.
Common questions
Q: Could the lawyer agree in the retainer to absorb costs if the case failed?
A: The committee concluded that an advance waiver would impermissibly guarantee financial assistance under former DR 5-103(B), except as the rule allowed for an indigent client or a class-action party.
Q: Did the committee decide whether waiving costs was lawful?
A: No. It expressly declined to comment on the legal question and addressed the ethical rule.
Background and rules framework
Former DR 5-103(B) addressed advances or guarantees of litigation expenses, including court, investigation, medical examination, and evidence costs. The opinion also discussed EC 5-8 and quoted proposed Model Rule 1.8(e) to explain its different treatment of repayment.
Citations and references
Rules of Professional Conduct:
- Vermont Code of Professional Responsibility DR 5-103(B) and EC 5-8
- ABA Model Rule 1.8(e), discussed as a proposed rule
See also
Source
- Landing page: Vermont Bar Association fees opinions
- Original PDF: Opinion 98-04
- Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”
What do the rules say today, for your facts?
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