NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics
Opinion #840 (03/26/2010)
Distinguishing N.Y. State 786 (2005) in light of rule changes
TOPIC: Lawyer paying pro bonoclient's litigation expenses.
DIGEST: Under the New York Rules of Professional Conduct, a lawyer is ethically permitted to pay the litigation expenses of a pro bono client whether the pro bonoclient is indigent or not.
CODE: DR 5-103(B)
1. Is a lawyer ethically permitted to pay the litigation expenses of its pro bono client, an organization that provides legal services to the indigent, even though the organization itself is not indigent?
- At the time N.Y. State 786 was issued, DR 5-103(B)(2) of the New York Code of Professional Responsibility required that a client be both pro bono andindigent in order for the lawyer to be permitted to pay the client's litigation expenses. In contrast, Rule 1.8(e)(2) of the New York Rules of Professional Conduct provides that "a lawyer representing an indigent orpro bono client may pay court costs and expenses of litigation on behalf of the client." (Emphasis added). Therefore, under the new Rules, as long as the lawyer is representing the client on a pro bono basis, the lawyer may pay the pro bonoclient's court costs and expenses of litigation whether the pro bono client is indigent or not.
- A lawyer providing pro bono legal representation to an organization that provides legal services to the indigent is ethically permitted to pay the organization's litigation expenses whether or not the organization is indigent.
 N.Y. State 786 adopted a test for indigence of an organization relating to "objective financial wherewithal, and not one that is based on the worthiness of" the organization's cause or motivations.
The rule amendments addressed in this opinion pre-date the April 1, 2009 amendments (which included adoption of the ABA Model Rules format). Specifically, the rule amendments at issue here originally took effect on February 1, 2007 in conjunction with extensive amendments to the advertising and solicitation rules in the old New York Code of Professional Responsibility.
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