Opinion #177. Advancing Litigation Costs Through Lines of Credit

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1 Opinion #177. Advancing Litigation Costs Through Lines of Credit Issued by the Professional Ethics Commission Date Issued: December 14, 2001 Facts and Question An attorney has requested an opinion on whether it is ethically permissible under the Bar rules to advance litigation costs through the use of a bank line of credit, passing interest and other costs of financing onto the client. The attorney has provided written material suggesting two alternative ways for financing litigation costs. Each would allow for interest to be tracked to individual cases. The first involves the use of separate credit lines for individual cases. The second involves the use of a single line of credit for more than one case, with the financing institution tracking each draw to an individual case and separately calculating interest on each draw so that interest can also be tracked to individual cases. [1] Opinion In the view of the Professional Ethics Commission, it is permissible under the Bar Rules for an attorney to finance litigation costs, and pass the interest and other costs of financing onto the client, under certain conditions. The attorney s inquiry calls into question Maine Bar Rule 3.7(d), which provides: *Financial assistance.* While representing a client in connection with contemplated or pending litigation, a lawyer may not advance or guarantee financial assistance to the client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expense of investigation, expenses of medical examination, and expenses of obtaining and presenting evidence. This rule unambiguously permits a lawyer to advance funds on behalf of a client for litigation expenses. The question then becomes: If a lawyer arranges for financing of those client advances, can the lawyer s costs associated with the financing be charged to the client?2 When the costs and interest associated with financing litigation expenses can be directly linked to a specific case, the Commission sees no basis in the Bar Rules for requiring the lawyer to absorb those costs. Several other jurisdictions have reached a similar conclusion. See e.g.ariz. St. Bar Comm. On the Rules of Prof. Conduct, Op , (9/2001); Ohio Opinion (6/7/2001); Chittenden v. State Farm Mut. Auto. Ins. Co. La. Sup. Ct, 2000-C-414 (5/15/2001). The Commission has previously opined about several financing arrangements involving lawyers and clients. In Opinion 138, the Commission concluded that Rule 3.3(b), allowing lawyers to accept payment by credit card, would permit other client financing arrangements for legal fees, provided certain safeguards were maintained. In Opinion 144, the Commission determined that a

2 lawyer could, without violating the bar rules, insure the payment of legal fees through a promissory note secured by client property unrelated to the representation, provided certain safeguards were maintained. In Opinion 152, the Commission advised that it would be permissible for a lawyer to enter into a financing arrangement with a third-party financial institution with a security interest in accounts receivables from legal services, again provided certain safeguards were maintained. These opinions suggest that certain measures are necessary to assure that the financing arrangement does not result in the violation of the lawyer s obligations to the client. For example, to avoid a potentially excessive fee prohibited by Rule 3.3(a), the terms for the loan including costs and rate of interest should be reasonable. Further, the requirements of Rule 3.4(f)(2)(i), concerning the lawyer s obligations to avoid acquiring an interest adverse to a client, guide ME. MAN. ON PROF. RESP. (2002) many of the other necessary safeguards. The lawyer should not profit from the financing arrangement, but should simply pass through to the client the expenses attributable to financing the litigation costs, like any other disbursement. The terms of the fee arrangement, identifying the litigation expenses including the financing arrangement and its terms, should be clearly explained to permit the client to make an informed decision. In order to comply with Rule 3.6(h)(1), the security agreement for the financing must not require the lawyer to disclose client confidences or secrets without the client s informed written consent. In addition, the prohibition of Rule 3.7(c) against a lawyer acquiring a proprietary interest in the subject matter of litigation would require that the lawyer not attempt to obtain any interest in the client s settlement or judgment to secure the lawyer s obligation to repay the financing institution. See also Opinion #144. In light of the foregoing considerations, the Commission concludes that it is reasonable for a lawyer to charge financing expenses to the client as a cost of litigation so long as the following safeguards are maintained. First, the financing arrangement must have the informed consent of the client. At a minimum, the client should be advised of how and when the attorney will finance advances, the name of the lending institution, and the expected costs associated with financing, including rate of interest. Second, in a contingent fee or limited representation case, the client s responsibility for interest and other financing costs should be spelled out in the written contingent fee or limited representation agreement. Third, the attorney must use a financing arrangement that accurately allocates interest and other financing costs to specific clients. The attorney should not use a single line of credit to finance advances on behalf of numerous clients and estimate how interest will be allocated among those clients. Fourth, the attorney may not allow the financing institution to acquire any lien or other security interest in the client s claim without the informed consent of the client. Moreover, whatever the nature of the financing arrangement, the client may not be deprived of his/her rights to challenge

3 the amount of interest and other costs through fee arbitration as provided under Maine Bar Rule 9.3 Fifth, any interest or other financing costs passed onto the client must be reasonable. Sixth, the lawyer may not disclose any client confidences or secrets to the financial institution without the informed written consent of the client. Footnotes [1] We understand that most banks will not take on the burden of tracking individual draws and interest to specific cases. The written material provided by the inquiring attorney, however, suggests that at least one relatively new bank specializes in providing such a line of credit. [2] This opinion does not address the situation of a lawyer making interest bearing loans to a client for litigation expenses which may raise issues under consumer credit laws as well as other ethical concerns. [3] Under no circumstances may the attorney acquire any security in the client s claim to secure repayment beyond a lien granted by law as referenced in Maine Bar Rule 3.7(c).

4 Opinion #191: Loan from Litigation Financing Co. to Personal Injury Plaintiff Issued by the Professional Ethics Commission Date Issued: December 21, 2006 Question Bar Counsel presents the following scenario involving litigation financing by a third-party lending company and asks the Commission to render an opinion on whether a lawyer would violate the Bar Rules by aiding a client in obtaining a personal injury lawsuit advance. Financing Company A provides what it calls pre-settlement lawsuit funding whereby it lends money to plaintiffs while they pursue personal injury litigation. In its promotional materials, Company A states: You can get lawsuit funding on your personal injury claim NOW. Unlike a personal loan, you will not have to pay us back until your case settles. It describes its loans as Non-Recourse Financial Assistance, meaning that if you lose we lose; i.e., if you lose your case you owe us absolutely nothing. Company A further explains in its materials that it will purchase a portion of your future settlement, providing you with cash today for any worthwhile purpose, including essential living expenses. It discloses that it invests in the plaintiff s lawsuit by literally buy[ing] a piece of the future settlement proceeds. The Company charges no application or closing fee, and represents that there are no hidden expenses. The plaintiff is not required to make any payments until the case is resolved. The Company states that there are no credit requirements and that it plays no part in the management of the case, explaining that [w]hat you decide to settle for is up to you and your attorney. The Company s fees are fixed, and it does not take a percentage of the plaintiff s recovery. In order to participate, the plaintiff must be represented by an attorney. The plaintiff must complete an application disclosing case information such as how the accident occurred, the personal injuries sustained, medical treatment rendered, any insurance that would cover the claim and attorney information. The plaintiff must also sign a release authorizing the Company to obtain records from the plaintiff s attorney. The release form includes a clause to the effect that the plaintiff understand[s] the effects of disclosing the contents of my file, including waiver of the attorney-client and work product privileges. The attorney must share with the Company her opinion on the merits of the case, and the Company periodically sends a follow-up questionnaire to the attorney to be filled out and returned. The Company charges the plaintiff based on a monthly fee calculator with monthly financing rates ranging from 2.00% to 7.00%. As an example, in the case of a $1,000 advance, at 4.00%

5 the fee would range from $120 if it took three months to resolve the case, to $1,200 if it took 30 months to resolve the case. The financing fees accrue each month and are paid at the end of the case only if there is a successful recovery. The Company does not compound fees, which it claims is contrary to the way some other companies charge. Opinion We understand that such advances are permitted in a number of other jurisdictions, but we are not aware whether any of these jurisdictions have a criminal champerty statute. For the Maine lawyer, the threshold question should be whether personal injury lawsuit advances are illegal because they violate Maine s criminal champerty statute, an issue on which we cannot opine. [1] Without an answer to this question, we cannot address whether it is per se unethical for a lawyer to assist in their creation. We caution, however, that the lawyer must be mindful of their potential criminality and the lawyer s corresponding obligations under the Code of Professional Responsibility. See M. Bar R. 3.2(f)(2) (lawyer shall not engage in illegal conduct that adversely reflects on lawyer s honesty, trustworthiness or fitness as lawyer); M. Bar R. 3.6(d) (lawyer shall not counsel or assist client in violation of any law, but lawyer may take steps in good faith to test validity of law). At a minimum, the lawyer must make an informed assessment of whether the proposed advance violates the statute and discuss the issue with the client. See M. Bar R. 3.6(a) (lawyer must employ reasonable care and skill and apply lawyer s best judgment). We also note that the scenario as posed leaves us many unanswered questions. For example, are the representations made in the advertisements borne out by the loan documents? What control, if any, does the financing company maintain over settlement decisions? Is the loan truly nonrecourse, or is there any situation where the client might be obligated to repay a portion of the loan in the event of no recovery? Is the client s obligation to repay capped by the amount of any settlement or verdict, or is it possible that the client could have a repayment obligation that exceeded that amount? Is the loan secured by the judgment, and if so, does that have a bearing on any issues? Additional questions arise if there are others to whom the plaintiff will be indebted and who expect to be paid out of a litigation recovery. For example, who gets paid first out of any settlement as between the financing company, lien holders (e.g., insurers and medical providers) and the attorney? What is the order of priority for payment? What amount is the client likely to net after case resolution and after the financing company and others have been paid? A final set of questions arise as we try to identify the nature of the relationship between the lawyer, client, and finance company. Is the finance company an agent of the client or the attorney with respect to the litigation? What duty of confidentiality does the financing company have and is its duty spelled out in the loan documents? Does the attorney take on any duties with respect to the financing company and, if so, what are they? Irrespective of these unanswered questions, and while we cannot say that it is per se unethical for a lawyer to assist a client in obtaining personal injury lawsuit advances, we do find that the above scenario raises a number of potential ethical problems that should be of concern to the lawyer. The issues we identify are without limitation, meaning that any particular litigation scenario may present additional ethical concerns that are not evident from the facts presented here.

6 First, before assisting the client in a transaction like this, the lawyer must fulfill her obligation to provide the client with appropriate advice on whether the arrangement is in the client s best interests. See M. Bar R. 3.6(a), supra. We express no view on whether personal injury advances in general are good or bad for clients. The wisdom, or lack thereof, of such an arrangement necessarily depends on the particular circumstances faced by the client. At a minimum, however, the client is sacrificing in interest payments a substantial portion of whatever final recovery may ultimately be received in the case. There may be other ways, such as letters of protection to medical providers or referral to a financial advisor, for the lawyer to assist the client in maintaining finances until a case is resolved. Whatever the circumstances and options, the lawyer must make sure that she fully explains the arrangement and the consequences to the client, and she must advise the client appropriately. Second, the lawyer must guard against disclosure of client confidences or secrets without the client s informed consent. See M. Bar R. 3.6(h). The scenario above involves a broad release to be signed by the client. The lawyer must make sure that the client understands the consequences of the release. The careful lawyer will keep the client timely informed on what she is sending to the lending company to ensure that she has the continuing informed consent of the client. Third, the lawyer must assess and advise the client on the potential consequences of sending confidences and secrets to the financing company. Sending information to a third party may act as a waiver of the attorney-client work-product privileges, entitling the opposing side in the litigation access to the information. This risk requires the lawyer to take steps to avoid a waiver, if a waiver can be prevented at all. It also requires the lawyer to be careful about what she sends to the company, knowing that whatever is sent, including the lawyer s evaluation of the case, may be discoverable to the other side no matter what steps are taken to avoid a waiver. Fourth, the lawyer must guard against any risk that the financing company will attempt to control the litigation or otherwise interfere with the lawyer s exercise of professional judgment. See M. Bar R. 3.6(a). Fifth, the lawyer must be wary of conflicts of interest that may arise between the lawyer s duty to the client and any obligation that the lawyer undertakes with respect to the finance company or between the lawyer and her client. See M. Bar. R. 3.4(e) and 3.4(f). For example, if the lawyer is obligated to describe to the finance company the likelihood of any recovery, the disclosure of any potential barriers to the client s recovery might render the client a less likely candidate for a loan and might damage the client s case if it becomes discoverable in litigation. Such a risk must be identified and the informed consent of the client must be obtained. As another example, if part of the reason the client is securing an advance is to pay litigation expenses that the lawyer will not advance, it may be necessary for the lawyer to advise the client that there may be other law firms willing to advance those expenses, which will alleviate the need for the loan. As stated above, these are the more obvious issues posed by the limited facts of the scenario before us. There may be other ethical issues presented by any particular personal injury advance proposal, which we are unable to discern and address at this time. Footnotes

7 [1] See 17-A M.R.S.A. 516 ( A person is guilty of champerty, if with the intent to collect by a civil action a claim, account, note or other demand due, or to become due to another person, he gives or promises anything of value to such person. ) We cannot opine on this question because our jurisdiction extends only to interpreting the Code of Professional Responsibility. See M. Bar R. 11(c); see also Maine Professional Ethics Opinion #11, April 2, 1980.