Can a lawyer advance litigation costs for an indigent client who probably cannot repay them?

Plain-English summary

The inquiry concerned whether it was ethical for a lawyer representing an indigent client to advance costs when the lawyer believed it unlikely the client would be able to repay the advance. The Editor's Note frames the question as the expenditure of personal funds on a pro bono case.

The committee opined that the Rules of Professional Conduct do not prohibit a lawyer from advancing funds on behalf of a pro bono client, so long as the lawyer complies with RPC 1.8(e), which provides that the client must remain ultimately responsible for payment of the costs, and other applicable rules.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. RPC 1.8(e) on advancing litigation costs was carried into the revised rules but renumbered and amended. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 costs for an indigent client who probably will not repay?

A: Yes. The committee said the rules do not prohibit advancing funds for a pro bono client, even when repayment is unlikely, so long as the lawyer complies with RPC 1.8(e).

Q: What condition did RPC 1.8(e) place on the advance?

A: Per the committee, the client had to remain ultimately responsible for payment of the costs, and the lawyer had to comply with other applicable rules.

Background and rules framework

The opinion interprets Washington RPC 1.8(e) (corresponding to Model Rule 1.8(e)), which governs a lawyer's advancing of litigation costs and expenses. As the committee read it at the time, the rule allowed advancing costs for a client provided the client remained ultimately responsible for repayment, and that condition was satisfied even where repayment was unlikely.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / Washington RPC 1.8(e) (advancing litigation costs and expenses; client's responsibility for repayment)

See also

• WSBA Ethics Op. 1106: Financial Assistance to Clients
• WSBA Ethics Op. 1230: Group of Clients Responsible for Costs
• WSBA Ethics Op. 1389: Forgiveness of a Client's Cost Debt

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1168

Original opinion text

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

Advisory Opinion: 1928
Year Issued: 2000
RPC(s): RPC 1.8(e)
Subject: Advance by lawyer of costs to indigent client who is unlikely to repay lawyer

[Editor's Note: Ethics inquiry #1928 concerns the expenditure of personal funds on a pro bono case.]

The Committee has reviewed your inquiry and determined the following:

The inquiry concerns whether it is ethical for a lawyer, representing an indigent client, to advance costs when the lawyer believes it unlikely that the client will be able to repay the advance.

The committee opined that the Rules of Professional Conduct do not prohibit a lawyer from advancing funds on behalf of a pro bono client, so long as he complies with RPC 1.8(e) that provides that the client must remain ultimately responsible for payment of the costs and other applicable rules.