This past Friday, the New York City Bar Association sent a letter to Chief Judge Janet DiFiore and the Administrative Board of the Courts, urging the Courts to adopt the "humanitarian exception" to Rule 1.8(e) of the New York Rules of Professional Conduct, in order to permit pro bono lawyers to provide financial assistance to indigent clients.
The current version of Rule 1.8(e) prohibits lawyers from providing financial assistance to clients except as it relates to court costs and litigation expenses (which the rule permits under limited circumstances). The proposed humanitarian exception would be limited to pro bono lawyers representing indigent clients. The proposed rule would also prohibit lawyers from offering financial assistance as an inducement to continue the representation and would prohibit lawyers from advertising the availability of financial assistance.
The letter also highlighted the urgent need for the courts to adopt the humanitarian exception and provided examples of how lawyers were currently limited by the current version of Rule 1.8(e):
Almost immediately after the COVID-19 pandemic hit, our members began receiving calls from lawyers and non-profit organizations who wanted to provide small amounts of financial assistance to indigent clients. For example, a non-profit organization that serves an immigrant community learned that a significant number of the organization’s clients had become unemployed as a result of COVID-19. The organization wanted to provide assistance to the clients to help pay for food and rent. Another inquiry involved a lawyer who represented a community restaurant in a low-income area with limited options for affordable food. The restaurant was providing food to the community for free, but could not do so without assistance. The lawyer wanted to contribute to enable the restaurant to continue feeding the community.
Moreover, the need for the humanitarian exception is not limited to the current pandemic. Even before the current crisis, lawyers representing indigent clients pro bono have sought to provide financial assistance to clients in order to help them with basic necessities such as food, clothing, and access to healthcare.
Under the current version of the ethics rules, a lawyer or law office could face disciplinary action for engaging in many of the activities described above. But that should not be the case. The humanitarian exception before the Courts is consistent with lawyers’ ethical and moral obligations to “seek improvement of the law; and to promote access to the legal system and the administration of justice.”5 Especially now, lawyers should not be limited in their ability to provide assistance to clients who are struggling to make ends meet.
As chair of the City Bar's Professional Ethics Committee, I was proud to co-sign the letter on behalf of my committee along with the President of the City Bar and the chair of the Professional Responsibility Committee. This is an important issue and we will hopefully see much needed change from the courts in the near future.
The humanitarian exception before the Courts is consistent with lawyers’ ethical and moral obligations to 'seek improvement of the law; and to promote access to the legal system and the administration of justice.' Especially now, lawyers should not be limited in their ability to provide assistance to clients who are struggling to make ends meet.