NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion #37(a) - 03/01/1968
Topic: Champerty, Assumption of Responsibility for Litigation
Digest: Lawyer's assumption of personal responsibility for client's
expenses for experts in the preparation of litigation is not improper
provided client is to reimburse lawyer
Canon: Former Canons 10, 28, 42
This Committee issued Opinion No. 37 - 11/30/66, which states that it
would be ethically improper for a lawyer to respond to a demand by his
client's physician that the lawyer assume personal responsibility for
the payment of the physician's fees for examinations, reports,
conferences and testimony in connection with personal injury litigation.
Our Committee is now asked whether Opinion No. 37 was intended to
forbid a lawyer from assuming personal responsibility for the payment of
experts, including medical experts, employed by the lawyer to assist him
in the preparation of a lawsuit.
It is the opinion of this Committee that there is no ethical
impropriety in a lawyer assuming personal responsibility for the payment
of experts, including medical experts, employed by him to assist in the
preparation of a lawsuit, provided that he does so subject to
reimbursement by his client. Such an assumption of personal
responsibility by a lawyer is not forbidden by Canon 42, if made in good
faith and as a matter of convenience:
Canon 42 provides:
"A lawyer may not properly agree with a client that the lawyer shall
pay or bear the expenses of litigation; he may in good faith advance
expenses as a matter of convenience, but subject to reimbursement."
The basic purpose of Canon 42, like Canons 10 and 28, is to implement
the policies against champerty, maintenance and barratry. What are
condemned by Canon 42 are arrangements between a lawyer and his client
that the former shall bear the expenses of litigation. A lawyer may
appropriately employ experts, including medical experts, and assume
personal responsibility for payment of such experts, subject to
reimbursement by his client, without violating the policies of Canons 10
and 42. He cannot, however, become a joint venturer in a
lawsuit. See Opinion No. 474 (January 4, 1939) of the Committee on
Professional Ethics of The Association of the Bar of the City of New
York. Also cf. ABA Informal Opinions No's. 398, 664 and 911.
A lawyer's assumption of personal responsibility for fees for medical
treatment, even when subject to ultimate reimbursement by his client,
would be unjustified and professionally improper. Just as a lawyer
may not advance living costs to an injured client while suit is pending,
ABA Formal Opinion 288 (October 11, 1954), he may similarly neither
advance nor assume responsibility for obligations of his client for
medical treatment or other personal obligations.
A distinction must be made between a physician's services in
diagnosing or treating the plaintiff's injuries and a physician's
assistance in connection with prosecution of a pending claim or
lawsuit. The physician is, of course, entitled to be compensated
for all his services, but the lawyer can assume responsibility only for
those related to the litigation.
Whether or not in any particular case a lawyer may properly advance
the payment for these charges as "necessary reimbursable expenses"
depends on whether he can do so in good faith, as required by Canon 42,
and without violating accepted policies against champerty and
maintenance. It is, however, implicit in the "Standards of
Practice for Doctors and Lawyers," approved jointly by our Association
and the Medical Society of the State of New York, 33 N.Y.S.B.J. 364
(1961), that it would be professionally inappropriate for a patient's
attending physician to condition consultations, reports or attendance at
trial on receiving advance payment or commitment from his patient's
lawyer for services not directly applicable to the prosecution of the
claim or suit.
In other words, the services of a physician, whether the attending
physician or one separately retained for the purpose, in helping the
lawyer prepare for and conduct a lawsuit, fall in the same category as
the services of an investigator, expert engineer, or any other
individual who renders some special service needed as an incident of
trial preparation. There are all contractual obligations which may
be appropriately assumed by the lawyer, though subject to ultimate
reimbursement by his client.
To the extent inconsistent herewith, Opinion No. 37 is overruled.