Mich. Attys Can Now Pay For Pro Bono Clients' Travel, Clothes

By Carolyn Muyskens | January 11, 2024, 6:47 PM EST ·

Lawyers in Michigan can give impoverished pro bono clients certain kinds of financial aid under a revision to the state's professional conduct code adopted by the Michigan Supreme Court. 

The change to the Michigan Rules of Professional Conduct adopted on Jan. 10 is described as a "humanitarian exception" to the general prohibition against lawyers providing financial assistance to clients.

Under the rule change, attorneys representing indigent clients in a pro bono matter can pay for a client's transportation, housing, food and clothes "to facilitate the client's access to the justice system in the matter."

Lawyers are prohibited from advertising the availability of financial assistance to potential clients or using the promise of aid to retain clients, according to the rules.

With the amendments, Michigan joins a number of states, including Alaska, Colorado, Connecticut, Massachusetts, Missouri, New York and New Jersey, in allowing attorneys to provide such financial help to impoverished clients.  

"The rule of professional conduct adopted today goes toward removing barriers to access for low-income individuals, especially for the overwhelming majority who are necessarily pulled into the legal system because of critical concerns burdening their families, including child custody and support, debt collection, eviction, access to public benefits, and more," Michigan Supreme Court Justice Megan K. Cavanagh wrote in a concurring statement accompanying the court's order.

In a previous version of the rules published for comment in March, the attorney-provided assistance was required to be related to court appearances, such as lodging during a multiday trial and court-appropriate clothing.

The language tying the aid to court proceedings was removed in favor of more flexible language — "facilitat[ing] … access to the justice system" — which still requires the assistance to be related to helping a client participate in his or her case, Justice Cavanagh said.

"For example, indigent clients may need transportation to attorney offices and other locations for meetings, depositions, mediations, and more as part of holistic, effective representation. Lack of transportation in particular can be a barrier to the indigent client's full participation in the justice system," Justice Cavanagh said.

In a dissent joined by Justice David F. Viviano, Justice Brian K. Zahra raised concerns about relaxing the prohibition on attorneys becoming financially entangled with their clients, arguing that mixing financial assistance with legal representation will taint attorney-client relationships.

"Once the client's personal finances and the existence of litigation or representation are intermixed, the client may struggle to make objective decisions based on what is in their best interest, notwithstanding the position of their attorney or the material aid provided. To the extent there is a need for greater food, clothing or housing for individuals with low income, that should be provided by general funds or charities that are not attached or dependent on a specific lawsuit or specific legal representation," Justice Zahra wrote.

The justice suggested attorneys' pro bono work will be warped by financial interests under the rule change, citing a recent opinion from the state's high court that found attorneys working on a pro bono basis are entitled to collect attorney fee awards when they would have been awarded the fees for a paying client. 

"The more an attorney or a firm has provided financially for a client, the more the attorney has 'put in,' and the greater incentive there is to shape advice for gain whether reputational or financial, notwithstanding the client's wishes or best interests. This is only exacerbated by this court's recent conclusion that attorneys working 'pro bono' can recoup a profit through attorney fees, and trial courts have no discretion to consider the attorney's 'pro bono' status when awarding fees," Justice Zahra said. 

Justice Cavanagh's concurrence said the changes were proposed by the State Bar of Michigan and based on recent amendments to the American Bar Association's Model Rules of Professional Conduct.

The ABA's Model Rule 1.8 allows attorneys to give "modest gifts to the client for food, rent, transportation, medicine and other basic living expenses" to indigent pro bono clients. 

Michigan's rule was "refined" after stakeholder concerns and is more narrowly tailored than the ABA's model rules, Justice Cavanagh said. Attorneys can only provide specific forms of assistance: transportation, lodging "if it is less costly than providing transportation for multiple days," meals and clothing, and assistance must be tied to helping the client participate in his or her case.

The rule goes into effect May 1. 

--Additional reporting by Aaron West. Editing by Kelly Duncan.

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