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Select Ethical Issues Present in Litigation Funding

October 14, 2021

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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Commercial People Moves

Red Lion Chambers Hires Former Harbour Director for Client Role

By John Freund |

Red Lion Chambers has taken a notable step in strengthening its engagement with litigation funders and commercial clients by appointing a former senior figure from the funding industry into a newly created client-facing role. The move reflects the increasingly close relationship between the UK Bar and third-party litigation finance, particularly in complex commercial and group actions where funding strategy and legal execution are closely intertwined.

An article in Global Legal Post reports that Red Lion Chambers has appointed James Hartley, formerly a director at Harbour Litigation Funding, as its first director of client relationships. In this newly established position, Hartley will be responsible for developing relationships with solicitors, funders, and other clients, as well as helping to align the chambers’ barristers with funded opportunities across commercial litigation, arbitration, and competition claims.

Hartley brings several years of experience from the funding side of the market, having worked at Harbour Litigation Funding where he was involved in evaluating claims, structuring funding arrangements, and working closely with law firms and counsel on strategy. His move to Red Lion Chambers underscores the value chambers are placing on individuals who understand both the legal and financial dynamics of funded disputes, as well as the commercial drivers behind claim selection and case management.

According to the report, Red Lion Chambers sees the appointment as part of a broader effort to modernise how barristers’ chambers engage with the market, particularly as clients and funders increasingly expect a more coordinated and commercially aware approach from counsel. The role is intended to complement, rather than replace, the traditional clerking function, with a specific focus on strategic relationships and long-term growth areas.

Case Developments Commercial

Longford Capital and Susman Godfrey Sued Over $32m Arbitration Award

By John Freund |

A new lawsuit has placed litigation funder Longford Capital Corp and prominent US trial firm Susman Godfrey LLP at the center of a high-stakes dispute over the ownership and allocation of arbitration proceeds, highlighting the growing complexity and occasional friction in funded litigation arrangements. The case stems from a roughly $32 million arbitration award tied to patent litigation recoveries and raises questions about the enforceability of funding agreements, arbitration clauses, and the definition of recoverable proceeds.

An article in Reuters reports that the lawsuit was filed in Texas state court by Arigna, an Ireland-based patent monetization company that previously worked with Susman Godfrey to pursue semiconductor-related patent claims. Arigna alleges that it was improperly forced into arbitration and that the resulting award in favor of Longford was tainted by arbitrator misconduct. According to the complaint, Arigna is seeking to have the arbitration award vacated and to recover approximately $5.5 million in settlement funds currently held in escrow.

The dispute traces back to a funding arrangement entered into after Arigna retained Susman Godfrey to pursue patent enforcement actions. Susman subsequently secured third-party litigation financing from Longford Capital. Tensions emerged over how Longford’s entitlement to proceeds should be calculated, particularly in relation to settlements involving multiple defendants and intellectual property assets that Arigna claims were outside the scope of the original funding deal. An earlier federal court battle over whether the dispute belonged in court or arbitration ultimately resulted in the matter being sent to arbitration, where the arbitrator ruled in Longford’s favor.

Now, Arigna argues that the arbitration should never have occurred and that Longford and Susman overreached in asserting rights to settlement proceeds. Longford has defended the award as valid and enforceable, while Susman Godfrey is also named as a defendant due to its role in structuring and executing the underlying legal and funding arrangements.

Case Developments Commercial

LitFin Backs €250m Antitrust Claims for Farmers

By John Freund |

LitFin, the Prague-headquartered litigation financier, has reached a major procedural milestone in one of Europe’s largest coordinated private antitrust actions, backing claims on behalf of more than 1,700 agricultural businesses harmed by a long-running pesticide cartel in Germany. In December 2025, damages claims approaching €250 million, including interest, were formally filed against wholesale distributors of plant protection products found to have engaged in unlawful price-fixing over nearly two decades.

LitFin reports that the claims are grounded in binding findings by Germany’s Federal Cartel Office, which determined that cartel conduct spanned from 1998 to 2015 and covered almost the entire market for plant protection products. That infringement resulted in administrative fines totaling approximately €157 million. Under German and EU competition law, such findings create a strong presumption that purchasers paid unlawful price surcharges during both the cartel period and its after-effects—forming the economic basis of the damages now being pursued by affected farmers.

The lawsuit has been filed by WAGNER LEGAL Rechtsanwälte PartG mbB, a Hamburg-based firm specializing in antitrust damages litigation, working in close coordination with the funder. According to LitFin, the claims are supported by a comprehensive economic analysis prepared by competition experts at Charles River Associates, quantifying the alleged overcharges suffered by claimants across the German agricultural sector.

For the agricultural businesses involved, the filing represents more than just a legal step forward. Without third-party funding, coordinating and prosecuting claims of this scale against well-resourced defendants would likely have been impractical. LitFin’s involvement enabled aggregation of claims, risk-sharing, and the deployment of specialist legal and economic expertise across a complex, multi-claimant proceeding.