The Cost of Humanitarian Assistance: Ethical Rules and the First Amendment
For many Americans, the choice between affording legal assistance--a luxury item--and covering basic living expenses appears to represent a choice in name only. Most states prohibit lawyers from providing clients with financial assistance to cover these living expenses. In a few states, lawyers may help clients with living expenses by advancing or guaranteeing financial assistance. Given accurate information about the availability of legal services, poor people may find themselves able to protect important legal rights.
In Part I, this Article reviews the origins of and reasons for the ban on lawyer advancement of living expenses to clients when litigation is pending or occurring. It describes the current regulatory regimes governing the issue and the majority rule that prohibits lawyers from advancing living expenses to clients involved in litigation. Part I also examines some of the key reasons for the majority rule and concludes that they do not justify the current ban.
Part II reviews the approach of a minority of states and the District of Columbia, which permit lawyers to advance living expenses. Most of these jurisdictions limit the ability of lawyers to communicate or advertise information about the expenses they provide.
Part III examines the recent history of lawyer advertising and the current state of the law regarding the advertising of living expenses. It argues that existing limitations on advertisements of advances violate the First Amendment and should be discarded. The Article concludes by recommending that the American Bar Association (ABA) and all states adopt a rule permitting attorneys to advance living expenses to clients when litigation is pending or occurring. It also contends that the First Amendment protects lawyers who advertise financial assistance in states that currently allow lawyers to advance living expenses.
John P. Sahl, The Cost of Humanitarian Assistance: Ethical Rules and the First Amendment, 34 Saint Mary's Law Journal 795 (2003).