Adhering to Professional Obligations: Amending ABA Model Rule of Professional Conduct 1.8(e) to Allow for Humanitarian Loans to Existing Clients
45 Pages Posted: 14 Dec 2013 Last revised: 24 Mar 2017
Date Written: December 12, 2013
The American Bar Association should amend Model Rule of Professional Conduct 1.8(e) to allow attorneys to give or loan existing litigation clients money for basic necessities, such as food, housing, and medicine. Injured plaintiffs are often forced to accept early discounted settlements because otherwise they are without money to purchase basic necessities. Consequently, they must abandon their right to pursue legal redress through the judicial system. This article argues for amending MRPC 1.8(e) because the legal profession has a duty to ensure equal access to the judicial system, to protect the client’s dignity during the representation, and to ensure that the rules regulating the profession, which the profession is entrusted to create, serve the public interest. This article juxtaposes these professional duties with the ABA and the states’ justifications for the current rule. It demonstrates that these justifications, which mainly concern conflicts of interest and frivolous litigation, are not significant enough to warrant the ban on attorney gifts and loans in light of these professional duties. Further, this article argues that given the availability of third-party litigation funding with its high cost to litigants, it would serve the clients’ interest to allow attorneys to be a fair source of funding in competition with these third parties. The article ends by examining the rules in the few states that have modified MRPC 1.8(e) and concludes that, while a step in the right direction, many of these rules are too restrictive. Instead, this article advocates that the ABA amend MRPC 1.8(e) to allow attorneys to give or loan money to existing litigation clients for basic necessities where the money is necessary to allow the clients to withstand pressure to accept an early discounted settlement.
Keywords: Professional Responsibility, ABA, Model Rules of Professional Conduct, 1.8, attorney client relationship, financing living expenses
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