UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
Opinion No. 11-02
Issued November 8, 2011
1. ISSUE: If an indigent litigation client asks his attorney for a financial gift, is the attorney permitted to provide that charitable gift or do the Utah Rules of Professional Conduct prohibit doing so?
2. OPINION: Utah Rule 1.8(e) prohibits “financial assistance” in connection with litigation, which includes paying living expenses for a client. However, a lawyer representing an indigent client may pay court costs, expenses of litigation and “minor expenses reasonably connected to the litigation.” The rule does not prohibit occasional small charitable gifts.
3. BACKGROUND: The attorney represents, by appointment, a death row inmate in a state habeas corpus matter. The client has asked the attorney to contribute a regular sum each month to the client’s prison account for his personal use (e.g. purchase of items from the commissary such as snacks, items of clothing, entertainment such as a television, radio or CD player.) The attorney suggests that many such clients suffer from mental illness and that CLE events have suggested making such charitable donations to elicit trust from difficult clients. Death row inmates have their basic needs provided for (food, clothing, necessary toiletries, paper) and are permitted to spend up to a certain amount each month in the commissary for items beyond this. They may earn some small amount of money doing prison work and may receive gifts.
4. ANALYSIS: This situation is addressed by Rule 1.8(e) of the Utah Rules of Professional Conduct. It is useful to understand the common law history leading up to this rule, to consider cases and opinions from other jurisdictions, and lastly to be aware of the differences between Utah’s version of this rule and the Model Rules of Professional Conduct and other states’ rules.
5. Utah’s Rule 1.8, like the Model Rule, is entitled “Conflict of Interest: Current Clients: Specific Rules.” Utah Rule 1.8(e) reads in relevant part:
(e)A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (e)(1) a lawyer may advance court costs and expenses in litigation . . . and (e)(2) a lawyer representing an indigent client may pay courts costs and expenses of litigation and minor expenses reasonably connected to the litigation, on behalf of the client. (emphasis added)
6. Hazard and Hodes’ The Law of Lawyering explains that Rule 1.8 “presents a series of specific applications of the basic conflicts of interest principles . . . . [where] most . . . involve situations in which the lawyer’s own interests threaten to adversely affect the representation. . . .” Regarding the specific prohibition of providing financial assistance to a client in connection with litigation addressed in Model Rule 1.8(e), Hazard et al. note that this rule derived from the common law prohibition of champerty and maintenance.
Champerty consisted of ‘investing’ in the cause of action of another by buying a certain percentage of the hoped-for recovery. . . .Maintenance was a similar offense, where the form of investment was providing living or other expenses to a client so that the litigation could be carried on. The prohibition applied to lawyers and nonlawyers alike and was generally enforced via the criminal law. The main harm . . . was said to be ‘stirring up litigation.’ It was feared that plaintiffs would be encouraged to bring suits they would otherwise forgo, thus adding to the public cost of administering justice, imposing unjust burdens on defendants, and enriching lawyers.