You represent an indigent client on a contingency matter and give her children used clothing. State bar counsel would like to see you now.
This charity violates Nevada Rule of Professional Conduct 1.8(e). Strict enforcement begs discretion, but Florida attorney Phillip Taylor found himself subject to discipline. He donated children’s clothing and small amounts of cash to his indigent client. There was no expectation of repayment. The Florida Bar charged Taylor with violating ethical Rules 4-1.8(a) (business transaction with client); 4-1.8(e) (financial assistance to a client in connection with pending litigation); and 4-1.8(i) (lawyer’s proprietary interest in the client’s cause of action). Florida Bar v. Taylor, 648 So.2d 1190, 1191 (Fla. 1994).
Taylor’s case seems outlying, but Rule 1.8 enforcement is not isolated. Cleveland Bar Association v. Mineff, 652 N.E.2d 968 (Ohio 1995) is another example. George Mineff’s client was evicted, appeared ragged, and was visibly losing weight. Mineff gifted him approximately $5,400 without any agreement to repay. The Ohio disciplinary panel publicly reprimanded Mineff.
Oklahoma attorney Donald Smolen’s case is similar. Smolen loaned his indigent client $1,200 after the client’s home caught fire. The loan was interest and penalty free. The client terminated Smolen’s representation without repaying, and his new attorney reported Smolen. Smolen admitted violating Rule 1.8(e). The Court suspended him from practice for 60 days and ordered him to pay costs. State ex rel. Okla. Bar Ass’n v. Smolen, 17 P.3d 456 (Okla. 2000).
Smolen argued a humanitarian exception should apply. A dissenting judge in the Ohio case concluded that Mineff’s charity benefited the client and did not interfere with the representation. An initial referee in the Florida case would have exonerated Taylor, reasoning, “I simply do not believe it is appropriate to sanction lawyers who provide used clothing for a client’s child.” In each case, these dissenting voices were overruled in favor of a pedantic application of Rule 1.8.
Nevada Rule of Professional Conduct 1.8(e)
Nevada RPC 1.8(e) reads,Professional Conduct 1.8(e)
“(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(2) A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.”
The Rule is substantially similar to the Florida, Ohio, Oklahoma, and ABA Model Rules. The ABA adopted Rule 1.8 based on the common-law prohibitions against champerty and maintenance because “such assistance gives lawyers too great a financial stake in the litigation.” MRPC 1.8(E) cmt. 10. A financial stake in the case may create an impermissible conflict of interest.
Amendments to Model Rule of Professional Conduct 1.8(e)
New York attorney Daniel Greenberg confessed that he has unknowingly violated Rule 1.8 throughout his career when taking clients to lunch, paying for carfare, or helping with food and necessities. Robert, Amanda, “Model Rule Revision Allows Attorneys to Help Pro Bono Clients in Need,” ABA Journal (Dec. 1, 2020). Greenberg, then a member of the ABA Standing Committee on Legal Aid and Indigent Defense, sought to amend the Rule.
In August, 2020, the ABA amended Model Rule 1.8(e) by adding a limited exception. The amendment permits modest gifts to an indigent clients represented pro bono through nonprofit legal services. The amended rule limits gifts to food, rent, transportation, medicine and other basic living expenses. New Rule 1.8(e) subsection 3 provides,
(3) a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses. The lawyer:ABA amended Model Rule 1.8(e)
Nevada should also amend its RPC 1.8(e).
Nevada should expand upon Model Rule 1.8 Amendment
The model rule amendment is incomplete. It does not protect attorneys like Donald Smolen, Phillip Taylor, and George Mineff. No attorney should be sanctioned for giving a coat to an impoverished client.
Other jurisdictions protect charity. Washington DC’s Rule 1.8(d)(2) permits aid when “reasonably necessary to permit the client to institute or maintain the litigation or administrative proceeding.” Mississippi and South Dakota Rules 1.8(e)(2) allow gifts for medical and living expenses. Louisiana Rule 1.8(e)(5) allows lawyers to “provide financial assistance to a client who is in necessitous circumstances.”
Nevada should follow suit. Rule 1.8 is intended to protect against champerty and maintenance. Humanitarian aid and de minimis gifts for necessary expenses are consistent with the Rule’s purpose. Without aid, indigent clients may rely on high-interest, third-party loans or quick, discounted settlement. An amended Rule 1.8 can help clients avoid indignity and exploitation.
The Supreme Court of Nevada should amend RPC 1.8 to protect attorneys with benevolence and charity at heart.
About the author
Chad Pace, Esq. is a partner at the Northern Nevada firm Carlson & Work. He devotes a portion of his practice to indigent criminal defense and is pro bono counsel at Healthy Communities Coalition in Lyon County. He is an experienced trial attorney and avid skier.
About this article: This article was originally published in the “Pro Bono” issue of Communiqué, the official publication of the Clark County Bar Association, (December 2021). See https://clarkcountybar.org/about/member-benefits/communique-2021/communique-december-2021/.
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