These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 29 - Advancing Fees and Costs
LEO NumTopicsSummaryDate
0485

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29-Advancing Fees and Costs

A law firm may not advance litigation expenses where the client will not be ultimately liable, even in a class action (where there is no readily identifiable client and the class members are indigent). [This LEO was overruled by Rule 1.8(e)(2), which exempts indigent clients from the requirement that the client remain ultimately liable for such expenses.]11/8/1982
1256

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29-Advancing Fees and Costs

40-Trust Accounts

A law firm may not arrange for a line of credit (under which the firm might ultimately become responsible for the loan) that would enable the firm to immediately disburse funds from a trust account upon personal injury settlements, because: the firm would be acquiring an interest in the outcome of the litigation; the lawyer would be advancing money other than appropriate litigation expenses; and it would commingle the lawyer's funds and the client's funds. 7/25/1989
0297

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29-Advancing Fees and Costs

A lawyer may advance a fee charged for release of medical records as long as the client remains ultimately liable. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]2/23/1978
0317

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29-Advancing Fees and Costs

A lawyer may advance costs only if the client agrees to reimburse the lawyer regardless of the litigation's success. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]12/12/1978
0820

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29-Advancing Fees and Costs

A lawyer may advance payment for medical records for a former client, as long as the client remains ultimately responsible. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]9/19/1986
1060

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29-Advancing Fees and Costs

A lawyer may advance the cost of medical records as long as the client remains ultimately liable. The Bar declines to say whether a litigant must pay for medical records which it subpoenas. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]3/31/1988
0997

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29-Advancing Fees and Costs

A lawyer may advance the expert fees for a death row inmate client, even there is "no probability" that the client can ultimately reimburse the lawyer for these costs. [Rule 1.8(e)(2) exempts indigent clients from all such requirements.]11/13/1987
1056

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8-Bills and Fees

29-Advancing Fees and Costs

A lawyer may charge a fixed percentage overhead fee for miscellaneous expenses in most representations, although such an arrangement would be improper in contingent fee matters (in which the client must be responsible for the actual costs incurred). 3/22/1988
0582

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29-Advancing Fees and Costs

A lawyer may guarantee payment of a doctor's bill for litigation-related activity as long as the client remains ultimately liable. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]5/28/1984
1133

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21-Reporting Another Lawyer's Unethical Conduct

29-Advancing Fees and Costs

A lawyer may not advance a client money against a future settlement, unless it is to cover litigation expenses. A lawyer learning in a deposition that an opponent has engaged in this unethical conduct must report the lawyer, and seek relief from a protective order covering the deposition testimony so that it can be reported. 9/2/1988
1182

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29-Advancing Fees and Costs

A lawyer may not advance litigation expenses for a client unless the client remains ultimately liable. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]1/31/1989
1269

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29-Advancing Fees and Costs

A lawyer may not loan a personal injury client money for living expenses (consent would not cure the conflict). 10/3/1989
1441

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16-Lawyer's Personal Interests

29-Advancing Fees and Costs

A lawyer may not loan money to a corporation that extends credit to the lawyer's personal injury clients. 1/6/1992
1219

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29-Advancing Fees and Costs

A lawyer may not represent one client lending money to the lawyer's personal injury clients with repayment based on recovery in the personal injury actions. 4/3/1989
0892

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29-Advancing Fees and Costs

A lawyer may pay a court reporter's bill as long as the client remains ultimately responsible. [Rule 1.8(e)(2) now exempts indigent clients from this requirement.]4/1/1987
0941

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29-Advancing Fees and Costs

A lawyer may pay for a doctor's follow-up letter on behalf of the client as long as the client remains ultimately responsible. ([Rule 1.8(e)(2) exempts indigent clients from this requirement.]6/11/1987
0587

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

29-Advancing Fees and Costs

A lawyer may pay witnesses for the reasonable value of time they have expended, as long as the payment is not an inducement to testify and is not contingent on the outcome of the case; and the lawyer's client remains ultimately responsible for the bill. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]6/14/1984
1155

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29-Advancing Fees and Costs

A lawyer may persuade a finance company to loan money to a personal injury client (against possible future recovery), as long as the lawyer is not responsible for the loan or a guarantor or co-signer. 11/15/1988
1237

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29-Advancing Fees and Costs

A lawyer may pursue a collection case against a former client to pay for copying charges which the lawyer advanced, but is not required to undertake such efforts if they would be fruitless or involve so little money as to be not worthwhile. Although the Code does not require the lawyer to pursue such collection efforts, the Bar held that "a consistent policy of not proceeding against clients for the collection of expenses advanced would be improper." ([Rule 1.8(e)(2) exempts indigent clients from this requirement.]7/13/1989
1029

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13-Marketing - Miscellaneous

29-Advancing Fees and Costs

47-Lawyer Referral Services

55-Firm Names and Letterhead

A lawyer referral service may not call itself "The Litigation Group" without explaining that it is not a law firm, and may not use the statement "no recovery -- no fee" because clients will be liable for costs even if they lose [explained in LEO 1750].2/1/1988
1379

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29-Advancing Fees and Costs

32-Lawyers Acting in Other Roles (Miscellaneous)

A lawyer who has persuaded a finance company to loan funds to the lawyer's personal injury client may supervise the client's execution of the documents and return them to the finance company. Although the lawyer does not have an attorney-client relationship with the lender (having performed only "ministerial tasks"), the lawyer may have contractual obligations to the lender. 11/30/1990
ABA-432

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16-Lawyer's Personal Interests

18-Consent and Prospective Waivers

29-Advancing Fees and Costs

50-Lawyer-Owned Businesses

Although some states totally prohibit lawyers from posting bail bonds for their clients, such conduct is sometimes permissible as long as clients consent after full disclosure. Lawyers should recognize that: (1) there is a possibility of conflicts because someone posting a bail bond has a financial incentive to apprehend a fugitive client or otherwise assure that the client appears in court; (2) some states consider the posting of bail bonds to be a form of impermissible financial assistance to a client; and (3) obtaining the necessary consent from a client would be extremely difficult if the client were incarcerated. Posting such bail bonds is more likely to be permissible if there is an immaterial amount of money at stake, or if there is a family or friendship relationship between the lawyer and client. 1/14/2004
0374

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14-Ownership of Files and Attorney Lien Issues

29-Advancing Fees and Costs

As long as the client is not prejudiced or otherwise entitled to possession of the deposition transcript, a lawyer may retain a deposition transcript for which the lawyer has advanced costs even after being fired. A lawyer may advance costs only if the client agrees to repay them regardless of the litigation's outcome. [Rule 1.8(e)(2) exempts indigent clients from this requirement.]6/17/1980
1830

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9-Government Lawyer Conflicts

16-Lawyer's Personal Interests

29-Advancing Fees and Costs

39-Miscellaneous

Lawyers in a public defender's office may provide nominal gifts to indigent clients for the purchase of personal items or food, as long as such "occasional de minimus humanitarian gifts" do not affect the lawyer's independent judgment (such as when the lawyers are "trying to persuade some of these clients to accept plea agreements to which the clients are initially resistant.") The majority of states totally prohibit such "financial assistance" under Rule 1.8(e). Such minor gifts do not run afoul of Rule 1.8(a), because they are gifts and do not constitute "business transactions" with the client. Although the rules "do not directly regulate nonattorneys," lawyers cannot do indirectly through a staff person what they cannot do directly -- although in this case the lawyer's staff may likewise provide such nominal humanitarian gifts to indigent clients.9/7/2006
1740

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29-Advancing Fees and Costs

48-Criminal Defense Lawyers

50-Lawyer-Owned Businesses

Lawyers may guarantee a de minimis appeal bond as long as the client remains ultimately liable for the expense. A criminal defense lawyer may not represent a defendant for whom the lawyer's bail bond business posted a bond.4/13/2000
0988

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16-Lawyer's Personal Interests

29-Advancing Fees and Costs

40-Trust Accounts

Unless the client agrees or a court orders, lawyers may not pay themselves out of escrow funds that were set aside for out-of-pocket costs incurred in litigation. 10/29/1987

Copyright 2000, Thomas E. Spahn