NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion #37 - 11/30/1966
Modified by #37(a)
Topic: Champerty, Assumption of Responsibility for Litigation
Digest: Lawyer's assumption of personal responsibility for
client's medical expenses would be improper
Canon: Former Canons 10, 42
An Attorney reports that doctors in the area in which he is
practicing, have taken the position that an attorney representing a
claimant in a negligence case must assume personal responsibility for
the physician's fee for issuing a medical report concerning the injuries
sustained, the physician's fee for examination of the claimant prior to
testifying, and his fee for a conference with the lawyer:
concerning the testimony the doctor will give at the trial.
Also, they require the attorney to be personally responsible for, and to
pay for the doctor's testimony (attendance) at the trial itself.
Query: Is it ethically proper for an attorney to assume
personal responsibility for such charges which in some cases are stated
to amount to several hundreds of dollars.
It is the opinion of this committee that it would not be ethically
proper for an attorney to assume personal responsibility for physician's
fees in the circumstances above set forth. It would violate Canons
10 and 42 and would be champertous, (Matter of Gilman, 251 N.Y. 265,
A physician may attempt to assure payment of his fees out of a
recovery in a negligence action by obtaining a valid assignment of their
value from his patient. Of course, a lawyer with notice of an
assignment executed by his client to a doctor is personally liable if he
fails to honor the assignment out of any recovery, (Brinkman v.
Moskowitz, 38 Misc. 2d, 950).
The instances propounded by the question are specifically covered in
the "Standards of Practice for Doctors and Lawyers" adopted by the New
York State Bar Association and the Medical Society of the State of New
York, under the chapter entitled "Compensation", paragraph "G".
"The payment of a physician's fees for examinations, reports,
conferences, and testimony in connection with litigation is always the
obligation of the patient or the party to a court action. It is
contrary to the Canons of Ethics of the legal profession for a lawyer to
agree to be personally responsible for the costs of maintaining a
lawsuit. It is often advantageous to request the patient, either
directly or through his lawyer, to permit the lawyer to pay the
physician's fee directly out of any recovery which may be had in a
particular lawsuit. The lawyer, where he requests reports,
conferences, or testimony, may advance the payment to these charges as
necessary, reimbursable expenses. If the lawyer does not advance
the payment, he should use his good offices to see that the charges are
paid by his client."
These standards of practice are guidelines for both professions and
are the result of years of study and consideration in order to reach
mutual understanding and respect between the two professions in carrying
out their respective responsibilities to their patients and clients.