Center for Human Rights and Constitutional Law
Mailing: PO Box 770, Bell Gardens, CA 90201
Telephone: (213) 388-8693

Ethical Lawyering Model Rules and Public Interest Lawyers
January 2024
Payment and Aid to Clients in Crisis or Without Means
Rule 1.8.5 Payment of Personal or Business Expenses Incurred by or for a Client
(Rule Approved by the Supreme Court, Effective November 1, 2018)
(a) A lawyer shall not directly or indirectly pay or agree to pay, guarantee, or represent that the lawyer or lawyer's law firm will pay the personal or business expenses of a prospective or existing client.
(b) Notwithstanding paragraph (a), a lawyer may:
(1) pay or agree to pay such expenses to third persons, from funds collected or to be collected for the client as a result of the representation, with the consent of the client;
(2) after the lawyer is retained by the client, agree to lend money to the client based on the client's written promise to repay the loan, provided the lawyer complies with rules 1.7(b), 1.7(c), and 1.8.1 before making the loan or agreeing to do so;
(3) advance the costs of prosecuting or defending a claim or action, or of otherwise protecting or promoting the client's interests, the repayment of which may be contingent on the outcome of the matter; and
(4) pay the costs of prosecuting or defending a claim or action, or of otherwise protecting or promoting the interests of an indigent person in a matter in which the lawyer represents the client.
(c) “Costs” within the meaning of paragraphs (b)(3) and (b)(4) are not limited to those costs that are taxable or recoverable under any applicable statute or rule of court but may include any reasonable expenses of litigation, including court costs, and reasonable expenses in preparing for litigation or in providing other legal services to the client.
(d) Nothing in this rule shall be deemed to limit the application of rule 1.8.9.
Previous CA Model Rule
Rule 4-210 Payment of Personal or Business Expenses Incurred by or for a Client (A) A member shall not directly or indirectly pay or agree to pay, guarantee, represent, or sanction a representation that the member or member’s law firm will pay the personal or business expenses of a prospective or existing client, except that this rule shall not prohibit a member:
(1) With the consent of the client, from paying or agreeing to pay such expenses to third persons from funds collected or to be collected for the client as a result of the representation; or
(2) After employment, from lending money to the client upon the client’s promise in writing torepay such loan; or
(3) From advancing the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter. Such costs within the meaning of this subparagraph (3) shall be limited to all reasonable expenses of litigation or reasonable expenses in preparation for litigation or in providing any legal services to the client.
ABA 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;
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and
(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:
(i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.
Financial assistance under this Rule may be provided even if the representation is eligible for fees under a fee-shifting statute.
Humanitarian Aid
Rules 1.8.5 and 7.2 were originally promulgated to prevent attorneys who stood to personally gain from litigation - for example, attorneys who might make a percent of damages at the litigation’s resolution - from recruiting or coercing clients into joining the lawsuit. But what about attorneys seeking to support clients who are in dire need of support, for no ulterior motive?
The intent of these rules was to protect the client’s rights under Rule 1.2 Scope of Representation and Allocation of Authority, which requires lawyers to “abide by a client’s decisions concerning the objectives of representation.” The rules, like most of the model rules, apply most usefully in the private practice context, where wealthy corporate clients can afford to front any costs of litigation or where namedplaintiffs, though harmed and seeking redress, are in stable enough positions to follow the litigation to its end.
In community lawyering models where clients are without means and experiencing crisis, the rule presents significant challenges. Nonprofits that provide humanitarian aid to the community that becomes a represented class are faced with the question of whether they must exclude class representatives from the aid the organization provides the community. Attorneys litigating on behalf of clients in crisis are faced with barriers to providing basic necessities to clients who are committing their time and energy to prosecuting harm in their community.
In Ohio, one attorney loaned a client $5,300 over the course of legal representation related to worker’s compensation because “he was eating only one meal a day, and it was apparent to [respondent] that Mr. Cianci was losing weight.” Cleveland Bar Ass'n v. Mineff, 73 Ohio St. 3d 281, 282, 652 N.E.2d 968, 970 (1995). The client became frustrated with the slow progress in the case and fired the attorney. The attorney told him there was no need to pay him back. The Ohio Bar found that the attorney “was the only person harmed by his conduct,” he had an “exemplary record as a lawyer,” and the violation was “technical and not willful,” and yet they issued a public reprimand. Id.
Since 1995, state bars have further grappled with this question. In 2021 in Tennessee, after a request for an order clarifying the Tennessee Bar Professional Rules, the Tennessee Supreme Court ordered: “When the Tennessee Alliance for Legal Services, Legal Aid of East Tennessee, Legal Aid of Middle Tennessee and the Cumberlands, Memphis Area Legal Aid Services, or West Tennessee Legal Services receives donations or other funding to provide humanitarian aid to persons in need, such as financial assistance to pay for food, clothing, shelter, or transportation, the organization's use of such donations or other funding
to provide humanitarian aid to its clients or the clients' families shall not be deemed a violation of paragraph (e) of this Rule.” In re Tenn. Sup. Ct. R. 8, RPC 1.8(e), Humanitarian Aid Provided by Non-Profit Legal Assistance Orgs., No. ADM2021-00464, 2021 Tenn. LEXIS 73, at *1 (May 4, 2021).
As Martha Davis pointed out in 2010, “[i]nstead of focusing on potential conflicts of interest and the integrity of the judicial system, a human rights approach to the question of subsidy would acknowledge the inequality of power and resources between the lawyer and client, and would take into account that a meritorious lawsuit might be thwarted if the client cannot subsist during its pendency. Further, viewed through a human rights lens, it is clear that a client's lack of access to subsistence support (that is, access to economic rights) has a critical impact on his or her ability to vindicate other procedural or substantive legal rights.” Article: Human Rights and the Model Rules of Professional Conduct: Intersection and Integration, 42 Colum. Human Rights L. Rev. 157, 180-81 (Martha F. Davis, 2010).
The California model rules allowed only “advancing the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter.”
In 2018, California updated its model rules, redefining permissible payments. The original provided:
A lawyer may cover expenses if “advancing the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the Matter” and such payment “shall be limited to all reasonable expenses of litigation or reasonable expenses in preparation for litigation or in providing any legal services to the client.”
Rule 4-210(A)(3) (1992-2018).
The 2018 rule provides:
A lawyer may “pay the costs of prosecuting or defending a claim or action, or of otherwise protecting or promoting the interests of an indigent person in a matter in which the lawyer represents the client” and “(c) “Costs” within the meaning of paragraphs (b)(3) and (b)(4) are not limited to those costs that are taxable or recoverable under any applicable statute or rule of court but may include any reasonable expenses of litigation, including court costs, and reasonable expenses in preparing for litigation or in providing other legal services to the client.”
Rule 1.8.5(c) (2018), Rule 1.8.5. Amendments to the Rules of Prof'l Conduct, No. S240991, 2018 Cal.
LEXIS 3785 (May 10, 2018).
In explaining the change, the State Bar wrote “The main issues considered were whether to permit lawyers to pay the costs and expenses for a pro bono or indigent client, and whether to allow gifts to existing clients. While the Commission adopted payments to pro bono or indigent clients in order to promote access to justice, permitting gifts to existing clients was excluded from the proposed rule due to the potential of unintended expectations and confusion between the personal and professional relationship between the lawyer and client.” Rule 1.8.5 Executive Summary.
The ABA also added an exception; theirs came in 2020. The ABA provides:
“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:
(i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.
Rule 1.8(e) (2020).
The ABA Comments further clarify that “[12] The paragraph (e)(3) exception is narrow. Modest gifts are allowed in specific circumstances where it is unlikely to create conflicts of interest or invite abuse. Paragraph (e)(3) prohibits the lawyer from (i) promising, assuring or implying the availability of financial assistance prior to retention or as an inducement to continue the client-lawyer relationship after retention; (ii) seeking or accepting reimbursement from the client, a relative of the client or anyone affiliated with the client; and (iii) publicizing or advertising a willingness to provide gifts to prospective clients beyond court costs and expenses of litigation in connection with contemplated or pending litigation or administrative proceedings.”
1. Aid Should Be Given Without Contingency on Participation in Litigation and When Possible in a Different Place and at a Different Time than Communication About the Litigation
Where an organization provides humanitarian aid to a group of people - for example, providing shelter, food, or medical care at a community center for unhoused individuals - and some of them provide declarations or become class members, there is little possibility of “conflicts of interest” or “abuse.” The class member is not induced to join the class because the humanitarian aid is provided before they choose to engage in the litigation. The humanitarian aid is not contingent on participation in the litigation. The person is given the choice to engage in the litigation freely or not to engage, and there is no impact on the aid they receive. See ABA Model Rule 1.8(e) and Comments.
In order to reduce the potential impression that aid is contingent on participation, which can have a legitimate, if unintended, coercive effect, an attorney should, wherever possible, provide aid in a separate space or at a separate time than litigation discussion. For example, an attorney might distribute aid to a group of people, than provide a voluntary opportunity for anyone to discuss potential litigation, without favoring those who do participate in any way.
Throughout the conversation, the attorney should explain and reiterate that participation is voluntary. The person should participate only if they believe the possible outcome is important.
2. Excluding Plaintiffs from Humanitarian Aid would Create Disparate Treatment, not Neutrality
For an organization that was providing aid before the start of the litigation to prevent plaintiffs from receiving aid would be punishment, rather than neutrality. This would add a disincentive to participate to people who are already facing adversity if they choose to join the litigation.
3. The Practice of Providing Basic Necessities During Attorney-Client Interaction Comports with Standard Practices
It is accepted practice, for example, to provide a room, water, snacks, and access to restrooms to clients in the attorney’s office during meetings, but attorneys are questioned when they a bring meal, blankets, and medical aid to an unhoused client who would otherwise be providing a declaration hungry, tired, cold, and in legitimate danger.
Providing basic care during interactions with a client “promote[s] access to justice” and in fact comports with standard practice in the private sector. See CA Rule 1.8.5 Executive Summary. When a client is deposed, a lawyer provides a room, chair, snacks, water, access to restrooms, and other basic amenities to ensure that the person has a comfortable environment in which to speak. When a client or prospective client discusses their case or works on a declaration with an attorney, they do so in a warm office and the attorney might offer coffee, food, or water. It would be ludicrous to demand that a lawyer conduct an
intake with a prospective client on the sidewalk. The same is true when a person provides humanitarian assistance in the field to a client in crisis or without means. It would be unjust to expect a class member orclient to provide a declaration while freezing, injured, or hungry and providing for their basic necessities causes no conflict of interest.
Advertising
Lawyers must also be careful that humanitarian aid is not meant to induce participation in litigation and does not violate rules governing advertising.
Rule 7.2 Advertising
(a) A lawyer shall not directly or indirectly pay or agree to pay, guarantee, or represent that the lawyer or lawyer's law firm* will pay the personal or business expenses of a prospective or existing client.
(b) Notwithstanding paragraph (a), a lawyer may:
(1) pay or agree to pay such expenses to third persons,* from funds collected or to be collected for the client as a result of the representation, with the consent of the client;
(2) after the lawyer is retained by the client, agree to lend money to the client based on the client's written* promise to repay the loan, provided the lawyer complies with rules 1.7(b), 1.7(c), and 1.8.1 before making the loan or agreeing to do so;
(3) advance the costs of prosecuting or defending a claim or action, or of otherwise protecting or promoting the client's interests, the repayment of which may be contingent on the outcome of the matter; and
(4) pay the costs of prosecuting or defending a claim or action, or of otherwise protecting or promoting the interests of an indigent person* in a matter in which the lawyer represents the client.
(c) “Costs” within the meaning of paragraphs (b)(3) and (b)(4) are not limited to those costs that are taxable or recoverable under any applicable statute or rule of court but may include any reasonable* expenses of litigation, including court costs, and reasonable* expenses in preparing for litigation or in providing other legal services to the client.
(d) Nothing in this rule shall be deemed to limit the application of rule 1.8.9.
Comment
[1] This rule permits public dissemination of accurate information concerning a lawyer and the lawyer’s services, including for example, the lawyer’s name or firm* name, the lawyer’s contact information; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance. This rule, however, prohibits the dissemination of false or misleading information, for example, an advertisement that sets forth a specific fee or range of fees for a particular service where, in fact, the lawyer charges or intends to charge a greater fee than that stated in the advertisement.
[2] Neither this rule nor rule 7.3 prohibits communications authorized by law, such as courtapproved class action notices. Paying Others to Recommend a Lawyer
[3] Paragraph (b)(1) permits a lawyer to compensate employees, agents, and vendors who are engaged to provide marketing or client development services, such as publicists, publicrelations personnel, business-development staff, and website designers. See rule 5.3 for the duties of lawyers and law firms*with respect to supervising the conduct of nonlawyers who prepare marketing materials and provide client development services.
[4] Paragraph (b)(4) permits a lawyer to make referrals to another lawyer or nonlawyer professional, in return for the undertaking of that person* to refer clients or customers to the lawyer. Such reciprocal referral arrangements must not interfere with the lawyer’s professional judgment as to making referrals or as to providing substantive legal services. (See rules 2.1 and 5.4(c).) Conflicts of interest created by
arrangements made pursuant to paragraph (b)(4) are governed by rule 1.7. A division of fees between or among lawyers not in the same law firm* is governed by rule 1.5.1.
A Lawyer Shall Abide by the Client’s Decisions
Rule 1.2 Scope of Representation and Allocation of Authority
(a) Subject to rule 1.2.1, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by rule 1.4, shall reasonably consult with the client as to the means by which they are to be pursued. Subject to Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6, a lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. Except as otherwise provided by law in a criminal case, the lawyer shall abide by the client’s decision, after
consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances, is not otherwise prohibited by law, and the client gives informed consent. Comment Allocation of Authority between Client and Lawyer
[1] Paragraph (a) confers upon the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. (See, e.g., Cal. Const., art. I, § 16; Pen. Code, § 1018.) A lawyer retained to represent a client is authorized to act on behalf of the client, such as in procedural matters and in making certain tactical decisions. A lawyer is not authorized merely by virtue of the lawyer’s retention to impair the client’s substantive rights
or the client’s claim itself. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404 [212 Cal.Rptr. 151, 156].)
[2] At the outset of, or during a representation, the client may authorize the lawyer to take specific action on the client’s behalf without further consultation. Absent a material change in circumstances and subject to rule 1.4, a lawyer may rely on such an advance authorization. The client may revoke such authority at any time. Independence from Client’s Views or Activities
[3] A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. Agreements Limiting Scope of Representation
[4] All agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law. (See, e.g., rules 1.1, 1.8.1, 5.6; see also Cal. Rules of Court, rules 3.35-3.37 [limited scope rules applicable in civil matters generally], 5.425 [limited scope rule applicable in family law matters].)
The Outsider-Lawyer
Historically, lawyers who fight for justice have followed a charity model: an attorney identifies a problem from his office, develops a legal strategy for addressing it, then seeks plaintiffs who provide declarations about the facts of their lives without being included in the legal strategy or having a say in developing the remedy. For most of the country’s legal history, white men were the only people allowed in a courtroom and they were almost never a member of the community they were representing. Social justice attorneys fought for justice, but didn’t always listen to the people they represented.
The class members in impact litigation know more about the problem and potential solutions than anyone whose experience with the issue is exclusively professional. When community members are at the table with attorneys building legal and non-legal strategy and developing proposed remedies, things that would have been lost on attorneys without lived experience are brought to the forefront.
Attorneys with lived experience and class members are invaluable parts of legal advocacy. No amount of law school can replace lived experience. But the context of the problems social justice attorneys address often create strong barriers to engagement. One example arises in detention related litigation. Attorneys’ access to their clients is limited by facility rules and sometimes purposefully obstructed. Class members inside detention facilities face retaliation for speaking with attorneys while the attorneys go back to the safety of their offices and homes.
As S. explained in a 2024 panel, there is simply too much to know about the inside for anyone outside to have the full picture. During litigation related to COVID conditions in a jail, S. frequently spoke with attorneys about the ongoing litigation and organized other advocacy campaigns. When the jail retaliated against her and others, taking away access to the library, tossing their cells and destroying their books, and replacing hot meals with moldy sack lunches, she led campaigns to protect and improve the lives of the people who risked their safety to improve conditions alongside the attorneys. The litigation team was restricted by the model rules and unable to provide direct support, but was able to point her in the direction of a grassroots organization that could. She worked with them to start a book donation program and a months-long campaign to bring back hot food.
Bridging the gap between attorney-controlled and class-member led litigation often means investing in relationships with organizers and advocates who have deep relationships in the community and more freedom to engage in creative advocacy.
Story, Press, Advocacy, and Confidentiality
Rule 1.6: Confidentiality of Information:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;
(4) to secure legal advice about the lawyer's compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
Rule 1.9: Duties to Former Clients
(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Rule 1.18: Duties to Prospective Client
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
Protecting Confidentiality in Advocacy
California 1.6 Rule remains one of the strictest across the United States. By adhering to Rule 1.6, nonprofit lawyers and advocates can mitigate the risk of inadvertently disclosing confidential information during organizing or advocacy work. This protects client confidentiality and preserves the trust and confidence of clients in their legal representation.
However, 1.6 does allow a lawyer to “reveal information relating to the representation of a client unless the client gives informed consent” Informed consent must be knowing, voluntary, and informed. An attorney must fully explain every way in which the person’s confidential information will be shared and used, who may see it, and any potential consequences, including retaliation. An attorney should also share the least identifying information possible unless the client prefers otherwise. This might include changing
names or redacting identifying details. Informed consent must also be given repeatedly throughout acampaign. Initial consent isn’t perpetual. An attorney must continue to check in with the client throughout any use of their story.
Another important consideration is compensation. Often, a person is asked to appear at a panel or write about their story but provided no compensation. Meanwhile, the attorney receives professional recognition and is paid by their nonprofit or through attorney’s fees. It is imperative that any person sharing their lived experience be compensated for their time.
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