Advisory Opinion:
2149
Year Issued:
2007
RPC(s):
RPC 1.8(e)
Subject:
A lawyer paying court costs and expenses of litigation for a non-profit guardianship agency client for whom litigation services are provided pro bono.
I. Facts and Questions
The inquirer asks if he may pay the court costs and litigation expenses for a nonprofit corporation performing guardianship services that he represents pro bono. The non-profit corporation is not indigent, but many of its wards are. The inquirer expresses a desire to pay for the costs and litigation expenses for the non-profit because it provides services to indigent wards who are persons with disabilities. The inquiring attorney correctly identifies and quotes from the appropriate Rule of Professional Conduct.
The attorney clearly identifies his client as the nonprofit organization.
II. Rule of Professional Conduct
RPC 1.8(e):
A lawyer shall not provide financial assistance to a client in
connection with pending or contemplated litigation, except that …
(2) a lawyer representing an indigent client may pay court costs
and expenses of litigation on behalf of the client.
Under RPC 1.8(e), a client is primarily responsible for court costs and fees. This general rule exists to prevent a litigant or an attorney from bringing lawsuits simply because funds are available. The rule also seeks to preclude a lawyer from compromising his or her independent judgment when the attorney’s personal funds pay for the suit. In short, this rule seeks to prevent legal counsel from acquiring an improper interest in the litigation.
RPC 1.8(e)(2) is an exception to the rule. The Comments to Rule 1.8(e)(2) provide simply that payment of court costs and litigation expenses for indigent clients is warranted. It is assumed that the reasons behind the primary rule are not concerns when an indigent client is the client represented. While this logic may be questionable, it is the rule we currently have.
If the client for the inquirer is indigent, then the exception applies and the attorney may pay the court costs and litigation expenses.
III. Discussion
Does a nonprofit corporation qualify as an indigent client? The court states in Adult Student Housing v. The Department of Revenue, 41 Wn. App. 583 (1985) that “Being nonprofit does not alone make a corporation benevolent or charitable. Neither does providing low rent housing to college students and faculty make it a benevolent service.” In the same way, providing guardianship services to the disabled even though “most” of its clients are indigent, does not make a nonprofit corporation indigent.
Moreover, an incapacitated person under a guardianship for disabilities has the right to hire his or her own counsel to advocate on their behalf. RCW 11.88.045(1)(b). A guardian’s role is distinct from that of the ward’s attorney. The guardian must advocate for the best interests of the ward, whereas the attorney must advocate in accordance with the ward’s directions. Ibid.
Does the attorney’s fiduciary obligation to the ward of the guardian he represents validate the use of this exception to the general rule? No. If the inquirer represents the ward of the guardian directly, or represents the ward and the guardian jointly, the answer would be different. However, the manner in which the inquirer phrased the inquiry indicates he considers the non-profit his client.
It is important to note that an exception to a general rule is strictly, not liberally, construed. Hugh Hall v. Corporation of Catholic Archbishop, 80 Wn.2d 797 (1972).
Under the circumstances outlined in this inquiry, the attorney may not pay the court costs and expenses of litigation without violating RPC 1.8(e).
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