November 7, 2003
A lawyer is not precluded by the Michigan Rules of Professional Conduct from advancing court-imposed fines and costs on behalf of a client, provided the client remains responsible for reimbursing the lawyer for the fines and costs advanced.
References: MRPC 1.8(e); MCR 1.110; MCL 600.2665.
A law firm represents a number of commercial trucking companies. These companies, as well as their drivers, commit a variety of offenses, both criminal misdemeanors and civil infractions These offenses include, but are not limited to, traffic equipment and loading violations. After a company/driver has either been convicted or has pled guilty or responsible to one of these offenses, the company/driver may be assessed fines and costs as part of the sentence.
Because the nature of the driver's work requires him/her to be on the road much of the time, often in the case of a guilty or responsible plea the driver is not present in court at sentencing when fines and costs are assessed.
The firm's attorneys report that district courts are enforcing MCR 1.110 (adopted January 1, 2002), which requires that "[F]ines, costs, and other financial obligations imposed by the court must be paid at the time of assessment, except when the court allows otherwise, for good cause shown".
The members of the firm request an opinion on whether or not the individual lawyer representing the company and/or driver may ethically advance the fines and costs on behalf of the trucking company and/or driver and seek reimbursement from the client.
MRPC 1.8(e) prohibits a lawyer from providing financial assistance to a client "in connection with pending or contemplated litigation," except that "a lawyer may advance court costs and expenses of litigation, the repayment of which shall ultimately be the responsibility of the client; . . . ."
MCL 600.2665 provides that a lawyer may not post bail for a client charged with a criminal offense. However, there is no statute in effect prohibiting a lawyer from advancing fines and costs on behalf of a client.
The assessment of fines and costs to a defendant occurs as a part of the sentence, imposed at the end of the court proceeding in which the defendant either pled guilty/responsible or was convicted. At that point, the litigation can be considered essentially concluded, as clearly no appeal is contemplated. Thus, the advancement of fines and costs in the contemplated situation would not violate MRPC 1.8(e).
Moreover, the advancement of fines and costs by the lawyer on the case on behalf of the trucking company and/or its driver/employee would ensure that both trucking company and driver/employee complied with the provisions of MCR 1.110.