Ethics Opinion

Summary: A lawyer who represents the plaintiff in a medical malpractice action may advance cash to his indigent client for the purpose of posting a bond required pursuant to G.L. c.231, S60B, provided that the client remains ultimately liable for this expense.

Facts: A law firm represents the plaintiff in a medical malpractice action against a surgeon and a hospital. After commencement of this action, a tribunal determined that plaintiff had failed to make the offer of proof required by the statute, G.L. c.231, S60B. It ordered the posting of two $2,000 bonds to secure payment of any costs assessed in favor of each defendant. The firm asks if it may provide cash for the purpose of posting these bonds. The client does not have the funds to do this himself.
Discussion: G.L. c.231, S60B, is intended to "weed out" frivolous medical malpractice actions. It attempts to do this by requiring plaintiffs to make a preliminary showing of meritoriousness before a special "tribunal" composed of a judge, a lawyer and a physician. If unsuccessful before the tribunal, "... the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of two thousand dollars secured by cash or its equivalent ... ." G.L. c.231, S60B (added by 1975 Mass. Acts, c.362, S5). The bond must be "... payable to the defendant for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment." G.L. c. 231, S60B. See Paro v Longwood Hospital, 1977 Mass. Adv. Sh. 2353, for a detailed description of this legislation.
The inquiry is governed by DR 5-103(B). This disciplinary rule provides that,
While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to his client, except that a lawyer may advance or guarantee the expenses of litigation, including court costs, expenses of investigation, expenses of medical examination and costs of obtaining and presenting evidence, provided the client remains ultimately liable for such expenses.
Cf. Superior Court Rule 11 (1974) authorizing an attorney to become liable as an "endorser for costs."
In our opinion, the cash bonds are an "expense of litigation." Hence, a lawyer may advance cash for the purpose of posting these bonds. The client must remain ultimately liable for this expense.
Admittedly, posting such bonds is not specifically permitted by the disciplinary rule. However, we regard the list of specific expenses as illustrative rather than exclusive. Such a bond seems rather closely analogous to the payment of court costs. In order to enter a civil action in Massachusetts, an entry fee must be paid. We note that it is an almost universal practice for plaintiff's attorneys to pay this fee on behalf of their clients and then include it as an item of expense in their client billing when the action is concluded. While the amounts involved might differ greatly, the principle is the same.
We also note that the legislature has provided that the court may reduce the bond if the plaintiff is indigent, G.L. c.231, S60B. See also Paro v. Longwood Hospital, 1977 Mass. Adv. Sh. 2353. We do not feel that advancing cash to an indigent client to post a bond will defeat the purpose of the statute. Even if it did, the disciplinary rules do not prohibit the practice.