Who pays the out-of-pocket expenses of litigation? Are they paid upfront by me or by my attorney?
UPDATED: June 19, 2018
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The out-of-pocket expenses for litigation may be paid up front by either you or your attorney, depending on your attorney-client arrangement and contract. This can also depend on whether you are paying your attorney an hourly rate, or on a contingency fee basis.
Model Rules of Professional Conduct
Many states have adopted the Model Rules of Professional Conduct (MRPC). The Model Rules allow an attorney to require the client pay the expenses up front; they also allow an attorney to take fees out of the lawsuit settlement, if there is one. However, the Model Rules state that an attorney is required to only charge a reasonable amount for expenses incurred, and that the basis for these charges should be communicated to the client either before representation, or within a reasonable time after representation begins.
The Model Rules further state that it's a good idea for the attorney to give the client a written agreement that breaks down the details of the expenses that they are responsible for, as this will reduce the chances of a misunderstanding when it comes time to deduct these expenses from any settlement. Further, in a contingency fee agreement where the attorney agrees to pay the expenses up front, the Model Rules state that the contract should say whether the expenses are taken out of the attorney’s fee, or are taken out on top of the attorney’s fee.
Upfront Fee vs Contingency Fee
Many law firms that offer their services on a contingency fee basis will agree to pay your expenses up front if they think that you have a good case. This is because attorneys understand that expenses in a lawsuit can quickly add up and can be too overwhelming for many clients to pay up front. However, there are some exceptions. These exceptions happen most often when the client’s case isn’t very strong. The client may believe that his case is stronger than the attorney does, or they may want to pursue the lawsuit for other reasons. However, since the attorney is taking a bigger financial risk in this case, they may require that the client pay the legal expenses as the case goes along.
Another reason a firm may require that a client pay the expenses as the suit progresses is because, sometimes, the attorney gets a settlement offer that he or she thinks the client should take, but the client refuses. At this point, the attorney may require the client to pay for the expenses from that point on, in order to continue the lawsuit.