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Select Ethical Issues Present in Litigation Funding

The following article was contributed by John J. Hanley, Partner at Rimon Law. 

Litigation financing is on the rise in the United States and provides some claimants a valuable means for paying the costs of pursuing a legal claim. Lawyer involvement in litigation financing transactions raises many ethical issues for a lawyer such as competence, duty of loyalty, the potential waiver of privilege and interference by a third party, to name a few.

Competence

The first rule for lawyers under the New York Rules of Professional Conduct (the “NY RPC”) is competence.[1]  Lawyers and law firms should tread carefully when considering undertaking client engagements in a subject area in which they do not have the requisite knowledge and skill to provide competent representation of their clients. Official Comment 1 to Rule 1.1 provides in part that factors relevant to determining whether a lawyer has the requisite knowledge and skill in a matter include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the filed in question, and the preparation the lawyer is able to give the matter.[2]

This does not mean that lawyers cannot deal with matters in which they are initially unfamiliar.  Indeed, the American Bar Association points out in comments to Rule 1.1 that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. The analysis of precedent  . . . and legal drafting are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study.”[3]

According to the New York City Bar Report to the President by the New York City Bar Association Working Group on Litigation Funding: “[a] lawyer whose client seeks third party funding should determine at the outset whether he or she has the transactional experience and sophistication required to negotiate a beneficial agreement with the funder or whether a specialist in the field should be involved.”[4]

Competence in litigation finance includes familiarity with various litigation financing structures and privileges against disclosure, among others.[5]  For example, the structure may involve different types of collateral, different means of financing legal fees and expenses, the manner in which funding is disbursed and the return structure of the financing.  A lawyer concentrating her or his practice on litigation funding may also be better able to determine “market” terms of the financing.

Duty of Loyalty and the Lawyer’s Financial Interests

Of course, the lawyer is the client’s fiduciary and agent who owes his or her client undivided loyalty and is forbidden from putting her interest above that of the client. The New York State Bar Association, Committee on Professional Ethics reminds lawyers that their financial interests must not interfere with the representation of the client.[6] Ordinarily, there is nothing adverse to a client about a lawyer getting paid for legal services[7] but in a litigation funding transaction the lawyer could have a personal interest in respect of the transaction. For example, the litigation funding agreement may facilitate payment of a portion of the lawyer’s fees or ensure certain expenses borne by the lawyer will be repaid.[8] The American Bar Association posits that if a lawyer has a relationship with a litigation funder that creates a financial interest for the lawyer . . . it may interfere with the lawyer’s obligation to provide impartial, unbiased advice to the client (the “ABA Report”)[9].

The ABA Report goes on to say that a lawyer with a long-term history of working with a particular funder may have an interest in keeping the funder content which would create a conflict even in the absence of an explicit agreement. The NY RPC, specifically Rule 1.7(a)(2), like the Model Rules of Professional Conduct, prohibits a lawyer from representing a client if “there is significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s own financial, property or other interest.” Additionally, Rule 5.4 of the NY RPC, and its analogous provisions in other jurisdictions, requires that a lawyer maintain independence[10].  Consequently, such lawyer, representing a client in a matter for which litigation funding is sought, in general may be able to represent the client with respect to the litigation funding agreement but should disclose the lawyer’s relationship with the funder and receive the client’s informed written consent.

Communication and Confidentiality

Rule 1.4 of the NYRP Conduct requires a lawyer to communicate promptly, and provide complete information, to the client regarding the matter, and to reasonably consult with the client about the means to achieve the client’s objectives.[11]

Reputable litigation funders are usually careful to provide in the litigation finance documents that the funder will not be involved in discussions between the lawyer and client regarding the matter, and that the funder will not direct or control the litigation. In certain circumstances an inexperienced lawyer may consider involving the funder in discussions about case strategy, but caution is in order. If a party other than client and the attorney is involved in communications involving legal issues or the case, the attorney-client privilege and confidentiality of communications is likely breached and the attorney may be guilty of legal malpractice. Indeed, Rule 1.6 of the NYRPC requires that a lawyer not knowingly reveal confidential information, or use that information to the disadvantage of the client or advantage of the lawyer or a third person, subject to certain exceptions.[12]

Conclusion

An attorney who represents a client in a matter that is to be funded pursuant to a litigation funding agreement should consider the ethical implications discussed in this Insight, among others, before representing the client in the funding agreement. Counsel would avoid all of the ethical considerations that may arise by referring the client to an outside attorney experienced in litigation finance.

[1] N.Y. Rules of Prof’l Conduct R.1.1.  The California Rules of Professional conduct and the American Bar Association Model Rules of Professional Conduct (“MRPC”) also make this the number one rule.  Indeed, all fifty states and the District of Columbia have adopted legal ethics rules based at least in part on the MRPC.
[2] N.Y. Rules of Prof’l Conduct R.1.1, Comment [1].
[3] Available here ABA Comment to Rule 1.1
[4] Report to the President by the New York City Bar Association Working Group on Litigation Funding (February 28, 2020).
[5] Others includes, without limitation champerty, maintenance, barratry, usury and required disclosures.
[6] N.Y. Comm. on Prof’l Ethics, Formal Op. 769 (November 4, 2003).
[7] The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2020-204.
[8] Id. At 3.
[9] American Bar Association, Informational Report to the House of Delegates Commission on Ethics 20/20.
[10] N.Y. Rules of Prof’l Conduct R.5.4.
[11] N.Y. Rules of Prof’l Conduct R.1.4(a).
[12] N.Y. Rules of Prof’l Conduct R.1.6(a). See also the American Bar Association’s Model Rule 1.6.

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As Funders Dodge 40% Tax, Questions Remain

By John Freund |

Litigation financiers have narrowly sidestepped what many saw as an existential threat: a 40 percent federal tax on funding profits that had been quietly tucked into the Senate’s sprawling reconciliation bill. While the proposal’s defeat means the industry will remain in tact, the close call has exposed deep fissures in an industry still fighting for political legitimacy.

An article in Bloomberg recounts how the International Legal Finance Association (ILFA) scrambled a last-minute “war room,” tapping GOP fixer Pete Kirkham and leaning on senators Ron Wyden and Mike Lee to invoke the Byrd Rule and strip the revenue provision before a floor vote. The measure, authored by Sen. Thom Tillis, would have taxed funders at the top individual rate (37%) plus an additional 3.8%, barred loss-netting and lifted shields for tax-exempt investors—changes projected to raise $3.5 billion over a decade.

ILFA’s rapid mobilization underscored the piecemeal nature of the sector’s advocacy. Omni Bridgeway portfolio manager Gian Kull lamented that funders “are not one unified entity, like private equity,” while Parker Poe partner Michael Kelley called the bill “a rifle shot right to the heart.” Yet not every member chipped in for the fight, reviving free-rider complaints in an a highly fragmented industry. Meanwhile, opponents led by the U.S. Chamber of Commerce—and vocal corporates Johnson & Johnson, Exxon Mobil and Liberty Mutual—signaled they will pivot to state legislatures and renewed transparency drives.

Writing on LinkedIn, Peter Petyt, founder of 4 Rivers Legal underscored the urgency of the current moment: "This moment calls for more than celebration — it demands leadership. The industry must come together to educate, advocate, and engage with lawmakers and the public in a constructive way."

For funders, the episode is a stark reminder that large corporations are gunning for this industry's very existence. Expect beefed-up lobbying budgets, accelerated ILFA recruitment and louder messaging on consumer access to justice as the industry braces for the next volley in what is fast becoming a multi-front policy war on third-party capital.

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Burford-Backed Claimants Gain Brief Stay in YPF Turnover Dispute

By John Freund |

A Manhattan federal judge has handed Argentina a three-day reprieve in the long-running Petersen / Eton Park saga, pausing enforcement of a $16.1 billion judgment that would force the hand-over of the country’s 51 percent stake in YPF.

Reuters notes that Judge Loretta Preska pushed the turnover deadline to July 17 so Buenos Aires can seek emergency relief from the Second Circuit, while chastising the sovereign for what she called “continued delay and circumvention.” The minority shareholders—represented by Burford Capital—stand to capture as much as 73 percent of the proceeds if Argentina ultimately pays, a prospect the Milei administration says could destabilize an economy already battling 200 percent inflation and dwindling reserves.

Preska’s order reinforces New York courts’ willingness to deploy drastic remedies against recalcitrant sovereigns, signalling that litigation financiers can indeed convert paper judgments into hard assets—even politically sensitive ones like a controlling stake in a national oil champion.

For the wider industry, the decision spotlights the enforcement stage as a fertile (and risky) arena for capital deployment. Success here could spur more sovereign-related funding, but also sharpen calls for transparency around funder returns when public assets are at stake.

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Fieldfisher Taps Jackson-Grant as Pricing Chief

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Fieldfisher has recruited litigation-funding specialist Verity Jackson-Grant to the newly created post of Head of Commercial Pricing, underscoring the firm’s intent to capitalize on sophisticated fee and finance structures in the wake of last year’s PACCAR fallout. Jackson-Grant, best known for translating third-party capital into user-friendly products for corporate clients, will sit within the firm’s European finance team and manage a multi-office pricing unit.

An update on LinkedIn confirms her appointment, noting that she will “drive and shape” Fieldfisher’s pricing strategy across the continent. The role’s blueprint calls for rolling out “creative pricing models” that enhance client profitability and embed alternative fee arrangements into disputes workflows.

Jackson-Grant brings a rare blend of funding fluency and law-firm know-how. A former director at TheJudge, she brokered litigation-finance and ATE insurance packages before moving in-house to develop alternative pricing frameworks for major UK and US practices.