The Florida Bar

Originally issued July 30, 1972
Revised April 23, 1993

A lawyer may advance or guarantee fees of medical witnesses in accordance with Rule of Professional Conduct 4-1.8(e).

RPC: 4-1.8(e)

A lawyer whose firm frequently represents plaintiffs in personal injury litigation advises that he is often requested by medical witnesses to guarantee payment of their witness fees. He asks whether he may properly do so under the Rules of Professional Conduct.

Rule 4-1.8(e) provides:

(e) Financial Assistance to Client. 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.

Clearly the lawyer is permitted, but not required, to advance litigation costs and expenses—including witness fees—on behalf of a client. Subdivision (1) of this rule allows the lawyer and a non-indigent client to agree that the client is obligated to repay the lawyer for advanced costs and expenses only if a recovery is obtained. In a contingent fee case, any such agreement should be included in the required written employment contract.

Subdivision (2) allows the lawyer and an indigent client to agree that the lawyer will pay the litigation costs and expenses of the indigent client if a recovery is not obtained.

[Revised: 08-24-2011]