No Client Waiver

No Client Waiver

Rule 1.8(e) bars a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, and it permits only the exceptions it lists.¹ Client consent is not among them. Most personal-interest conflicts yield to a client's informed consent, but Rule 1.8(e) belongs to a group of provisions that create non-consentable conflicts, so the client's agreement, however well informed, repairs nothing.² The ban looks only at what the lawyer does. Whether the client wanted the money never enters the analysis.

Rule 1.8 can look redundant at first, because Rule 1.7(a)(2) already declares a conflict whenever a lawyer's personal interest would materially limit the representation. The Rule earns its place by making specific calls about the most common personal-interest situations, and those calls come in three grades.³

• Rule 1.7(a)(2) sets the baseline: a personal interest that would materially limit the representation creates a conflict, and consent is the ordinary way to deal with it.
• The consent-plus provisions demand more than consent. Rule 1.8(f) lets a lawyer accept payment from a third party, such as a liability insurer or a family member, only if the client gives informed consent, the lawyer assures herself that her professional judgment will not be interfered with, and she protects client confidences. Rule 1.8(a) likewise requires that the terms of the transaction be fair and reasonable to the client.
• The non-consentable provisions bar the conduct outright. They include Rule 1.8(c) on gifts from clients (testamentary gifts too, such as being named in a client's will), Rule 1.8(d) on obtaining media rights in the client's story, Rule 1.8(e) on financial assistance to a client in litigation, and Rule 1.8(i) on acquiring a proprietary interest in the subject of the representation.

The grade decides whether consent can help. Rule 1.8(e) sits in the third grade, so it cannot. The drafters did not leave this risk to the client's judgment; they settled it in advance.

Now change the payment. The same lawyer, in the same suit, advances the filing fee and an expert witness's fee, to be repaid only out of any recovery. That payment falls within the exception for court costs and litigation expenses, whose repayment may be contingent on the outcome of the matter.⁴ The lawyer needs no signed form, because a waiver presupposes a violation to be waived, and an excepted payment is not a violation in the first place. Consent therefore does no work at either end. It cannot rescue the rent payment, and it is unnecessary for the filing fee. The kind of payment decides each case, and that is exactly what the exceptions sort.

Fact patterns often recite every ingredient of consent: notice to the client, full disclosure, a written agreement, even a signed form. Those details are meant to make the payment look cleared, and they change nothing when the payment falls outside every exception. Ask one question instead: does the payment fit an exception, such as the one for court costs and litigation expenses or another exception this chapter takes up? If it does not, the violation stands, whatever the client agreed to.