Unethical Rule 1.8(e)

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Long title: 
The Unethical Ethics Rule: Ways to Fix Model Rule of Professional Conduct 1.8(e)
Author(s): 
Schrag, Philip G.
Author(s)' contact information: 
Georgetown University, USA
Conference title: 
International Legal Ethics Conference VI
Conference location: 
City University London
Country: 
USA
Year: 
2014

Professors Jack Sahl and James Moliterno have previously decried Model Rule 1.8(e), which bars lawyers from making loans or gifts for necessities such as basic housing expenses to their clients—even indigent clients—in connection with their representation of those clients. The rule is a cruel restriction on access to justice. Its origins in the doctrines of champerty and maintenance have been rejected in other contexts such as the rules permitting lawyer advertising. Rationales based on purported conflicts of interest are inconsistent with our tolerance of contingent fees. Justifications based on avoiding competition among lawyers are both outdated and inapplicable to pro bono cases. And if the real purpose of the rule is to give lawyers an excuse for rejecting requests for help from their clients, it is obviously self-serving.
But the rule remains. The authors of the Model Rules retained most of the prohibition as stated in the Model Code. Neither the Ethics 2000 Commission nor the Ethics 20/20 Commission have sought to do away with them. The Sahl and Moliterno critiques called for the rule’s repeal, to no avail.
In view of this persistence, the American Bar Association and the state courts should consider modifications to Rule 1.8(e) if they are unwilling to repeal it outright. A small number of states have indeed adopted variations that are less draconian than the Model Rule. My paper will suggest several stopping points short of repeal that would allow lawyers to be charitable toward their clients if they so desire.

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