10.1.2Client information, gifts, literary rights, financial assistance, and proprietary interest in litigation (Rules 1.8(b), (c), (d), (e), and (i))

Rule 1.8(b) — Client information (Model Rule 1.8(b))

A lawyer shall not use information relating to the representation to the disadvantage of the client unless the client gives informed consent or the MRPC otherwise permits.

• Comment [5]: Example: a lawyer who learns through representation that a client intends to purchase a specific parcel of land may not purchase that parcel first.

Rule 1.8(c) — Gifts from clients (Model Rule 1.8(c))

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, and shall not prepare an instrument giving the lawyer or a relative of the lawyer a substantial gift — unless the client is related to the lawyer or to the gift recipient.

• "Related" includes spouse, child, grandchild, parent, grandparent, or another relative or individual with whom the lawyer or client maintains a close familial relationship.

• Comment [6]: a lawyer may accept an unsolicited gift, even a substantial one, though it may be voidable under the undue influence doctrine.

• The prohibition targets soliciting and drafting the instrument — not accepting.

• Fiduciary appointment (Comment [8])

  Rule 1.8(c) does not bar a lawyer from seeking to have the lawyer, or a partner or associate, named executor of the client's estate or to another potentially lucrative fiduciary position. That appointment is tested instead under Rule 1.7(a)(2) where there is a significant risk that the lawyer's interest in obtaining it will materially limit the lawyer's independent professional judgment in advising the client on the choice of executor or other fiduciary (Chapter 8).

Rule 1.8(d) — Literary and media rights (Model Rule 1.8(d))

Prior to the conclusion of representation, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based substantially on information relating to the representation.

• Rationale: media rights give the lawyer a financial stake in the outcome that can conflict with the client's interest in settling.

• A lawyer may acquire such rights after the matter is entirely concluded, including all appeals.

Rule 1.8(e) — Financial assistance in litigation (Model Rule 1.8(e))

A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation. Exceptions:

1. May advance court costs and litigation expenses, repayment may be contingent on the outcome — available for any client. Bail, living expenses and personal loans are not court costs or expenses of litigation;
2. May pay court costs and litigation expenses outright (no repayment obligation) for an indigent client;
3. May provide modest gifts for food, rent, transportation, medicine, and other basic living expenses to an indigent pro bono client — available to any lawyer representing an indigent client pro bono, whether directly, through a nonprofit legal services or public interest organization, or through a law school clinical or pro bono program (no organizational channel is required) — but may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention, may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client, and may not advertise willingness to provide them.
   • Note (fee-shifting): Eligibility for court-awarded fees under a fee-shifting statute does not disqualify an indigent pro bono client from the modest-gifts tier — but the modest-gifts tier is unavailable in other litigation where the lawyer may earn a contingent fee, or where fees may be available under a contractual fee-shifting provision (Comment [13]).

Rule 1.8(i) — Proprietary interest in litigation (Model Rule 1.8(i))

A lawyer shall not acquire a proprietary interest in the cause of action or the subject matter of litigation the lawyer is conducting for a client. Exceptions:

• A lien authorized by law to secure the lawyer's fee or expenses (attorney's lien); and

• A contingent fee in a civil case, subject to the reasonableness and writing requirements of Rule 1.5.

• Note: this prohibition applies only to litigation. A patent lawyer may accept an ownership interest in a patent as payment for drafting the application, but not for litigating an infringement suit involving that same patent. The civil-case limit belongs to the contingent fee under (i)(2) alone: a contingent repayment of an advanced litigation expense is paragraph (e)'s business, not paragraph (i)'s (Comment [19]), and is not limited to civil cases.