David Evan Markus, Esq., chairs the WCBA Committee on Ethics & Professionalism and the WCBA Special Committee on the Future of the Bar and is elected to the New York State Bar Association House of Delegates and WCBA Executive Committee. He serves as Referee in Supreme Court, Ninth Judicial District, and previously served as Statewide Special Counsel for Programs and Policy for Chief Judges Judith Kaye and Jonathan Lippman.

Lawyers are advocates, negotiators, problem solvers and often philanthropists. As a profession, we support justice-related causes including bar associations and legal service groups, along with a wide array of other community groups and charitable interests.

But when litigation clients themselves are needy, can lawyers financially assist them?

Until 2020, the answer was always “no.” The pandemic, however, brought a new Rule 1.8(e)(4)—the so-called “humanitarian exception.”

In its wake, this Ethics Corner column explores when and how lawyers can support their needy clients. The answer is not always a firm “yes,” but it is not always “no” anymore.

The Backstory: An Unethical Ethics Rule?

History’s rigid ban on lawyers supporting their litigation clients is ancient in origin and arose out of restrictions initially placed on others. Medieval England’s 1487 Star Chamber Act and 1504 Statute of Liveries barred feudal landowners from paying their “minions and supporters” to stir up claims against the crown.¹ When their lawyers were added to this ban, thus began the law of champerty—funding a suit to obtain a stake in its outcome.²

Centuries later, the distaste of the monarchy for lawyers who challenged their power morphed into paeans to client choice. In 1925, the New York City Bar opined that a lawyer representing a client who lost his hand in a workplace accident could not buy the client a prosthetic hand so the client could work pending verdict, lest the lawyer gain too much “control of the action … than is consistent with the free agency of the client.”³ During the Great Depression, the City Bar held that a lawyer could not lend a destitute client money for food and housing lest loans become “a method of soliciting business.”⁴ In the 1950s, the City Bar banned an attorney from lending a client money to avert starvation that otherwise might force the client to accept a low settlement offer, believing that “such loans might induce a client to employ one attorney rather than another” and “impair the dignity of the profession.”⁵

From this foundation ostensibly protecting client choice in hiring counsel, courts and ethicists banned lawyers from most promised or actual financial relationships with their litigation clients beyond the four corners of legal matters. Rule 1.8(e) evolved to mandate that “While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client.” Even as exceptions evolved to allow contingency fee arrangements, advances of litigation costs, and payment of those costs outright for indigent and pro bono clients,⁶ the charitable-support ban remained ironclad. As before, ethicists feared that lawyers would use charitable support to induce clients to hire them, bind clients to existing representations and/or foster spurious lawsuits. ⁷

In 2015, a Georgetown law professor lambasted this ban on charitable support of WESTCHESTER LAWYER | AUGUST 2025 | 13 clients as unethical and antithetical to the cause of improving access to justice:

[Model Rule 1.8(e)] bars lawyers from assisting their low-income litigation clients with living expenses such as food, shelter and medicine, though such clients may suffer or even die while waiting for a favorable litigation result. Because of its indifference to the humanitarian or charitable impulses of lawyers and its harsh effects on indigent clients, Rule 1.8(e) stands out as an unethical ethics rule.⁸

In a marked reversal, in 2018 the City Bar agreed and proposed a humanitarian exception to New York’s Rule 1.8(e). The New York State Bar endorsed it in January 2020, just before the pandemic. Soon after, lawyers for indigent litigation clients impacted by the covid-19 pandemic began receiving dire requests for financial assistance. In response, the State Bar sent the reform plan to the Judiciary on an urgent basis.⁹ By June 2020, a new Rule 1.8(e)(4) became law.¹⁰

The “Humanitarian Exception”

Rule 1.8(e)(4) now provides that:

A lawyer providing legal services without fee, a not-for-profit legal services or public interest organization, or a law school clinical or pro bono program, may provide financial assistance to indigent clients but may not promise or assure financial assistance prior to retention, or as an inducement to continue the lawyer-client relationship. Funds raised for any legal services or public interest organization for purposes of providing legal services will not be considered useable for providing financial assistance to indigent clients, and financial assistance referenced in this subsection may not include loans or any other form of support that causes the client to be financially beholden to the provider of the assistance.

Under the new humanitarian exception, gone is the ironclad “no” to helping needy litigation clients—though only for some clients, and only sometimes. Details matter. 

Who is “indigent”?

A pre-exception opinion suggested that “indigent” persons are those who qualify—or nearly qualify—for appointed counsel.¹¹ The Rule states no fixed measure such as client income at or below 125% of the federal poverty level and does not require lawyers to break out a calculator before helping. As such, a rule of reason appears to govern: a lawyer can financially assist a current litigation client who reasonably appears unable to afford counsel.¹²

What is “without fee”?

Alternatively, lawyers may help non-indigent litigation clients if the representation is “without fee.” For this purpose, pro bono representations pass muster, as do statutory-fee cases and civil rights actions in which adverse parties pay the fees.¹³ Conversely, contingency-fee actions do not count because any fees remain payable from client recoveries.¹⁴

How much help can we give?

The humanitarian exception is silent on this question, but a new comment to Rule 1.8(e)(4) lists examples of food, rent, clothing, personal incidentals and medicine.¹⁵ These examples seem to be just that—examples, not limitations—so long as the assistance does not “cause the client to be financially beholden” to the attorney providing it.¹⁶ The only caution is that if assistance risks adverse impacts on the client such as public support eligibility, the lawyer should advise the client in advance.¹⁷

What about non-litigation clients?

Gifts to non-litigation clients generally fall outside the policy concerns of Rule 1.8(e), but not outside the ethics rules generally. Lawyers still should consider whether a gift would create a “significant” risk of adverse effect on their independent judgment under Rule 1.7(b) or constitute “a business transaction” implicating the conflicts-of-interest considerations of Rule 1.8(a). In most instances, generosity will pass ethics muster.

Conclusion: Yes, We Can Help (Sometimes)

Lawyers hold a public trust and, with it, responsibilities and opportunities to serve. Together we can make profound charitable impacts. Now under the humanitarian exception, more of our help can be person to person, hand to hand— in our profession’s high ethical calling.

Endnotes

1 P. Schrag, “The Unethical Ethics Rule: Nine Ways to Fix Model Rule of Professional Conduct 1.8(e),” 28 Geo. J. Legal Ethics 39, 40, 49-50 (2015), citing J. Militerno, “Broad Prohibition, Thin Rationale: The ‘Acquisition of an Interest and Financial Assistance in Litigation’ Rules,” 16 Geo. J. Legal Ethics 223, 228 (2003); M. Radin, “Maintenance by Champerty,” 24 Cal. L. Rev. 48 (1934).

2 See e.g. Trust for the Certificate Holders of Merrill Lynch Mtge. Investors, Inc. v. Love Funding Corp., 13 N.Y.3d 190 (2009); Judiciary Law §§ 488-489.

3 N.Y. City Op. 20 (1925).

4 N.Y. City Op. 319 (1934).

5 N.Y. City Op. 779 (1953).

6 See Rule 1.8(e)(1)-(3).

7 See Rule 1.8, comm. [10]; N.Y. State Op. 1066 (2015); N.Y. State Op. 1044 (2015); Simon’s N.Y. Rules of Professional Conduct Ann. (24th ed., 2024), § 1.8:46.

8 Schrag, supra n.1, at 40.

9 Simon’s, supra n.7, at § 1.8:46.

10 42 N.Y. Reg. 28, at 95 (Jul. 15, 2020).

11 See N.Y. State Op. 1044, ¶ 8 (2015); Rule 6.1, Comm. [3].

12 See generally Simon’s, supra n.7, at § 1.8:70.

13 See id.; Rule 1.8(e)(4), Comm. [10A][4]; Rule 6.1, Comm. [4].

14 See Rule 1.8(e)(4), Comm. [10A].

15 See id.

16 Id.

17 See Simon’s, supra n.7, at § 1.8:70; Rule 1.4(b).