The Unethical Ethics Rule: Nine Ways to Fix Model Rule of Professional Conduct 1.8(e)
34 Pages Posted: 4 Apr 2015
Date Written: April 2, 2015
The ABA Model Rules of Professional Conduct proclaim that all lawyers should use their influence “to ensure equal access to our system of justice,” and in many ways, the Model Rules themselves attempt to improve access to justice for individuals of limited financial means. For example, the Model Rules explicitly authorize lawyers to charge contingent fees, so that clients who are unable to pay an hourly or flat fee can obtain legal redress for injuries without investing whatever savings they may have. The Model Rules also encourage lawyers to aspire to provide at least fifty hours a year of pro bono legal services, and they discourage lawyers from avoiding court appointments to represent indigent or unpopular clients. But Model Rule 1.8(e), which has become law in forty states, is at odds with the legal profession’s goal of facilitating access to justice. This rule bars lawyers from assisting their low-income litigation clients with living expenses, such as food, shelter and medicine, though such clients may suffer or even die while waiting for a favorable litigation result. Because of its indifference to the humanitarian or charitable impulses of lawyers and its harsh effects on indigent clients, Rule 1.8(e) stands out as an unethical ethics rule. This article examines Rule 1.8(e) and its persistence, academic criticism notwithstanding, in the law of most states. It also suggests that the rationale for its continued enforcement rests primarily on concern for clients in contingent fee cases, and that the rule could be amended, rather than repealed outright, to narrow its scope, preserving its possible benefit while reducing its collateral damage.
Keywords: professional responsibility, indigent
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