In criminal and domestic cases in particular, a litigant is often at his or her lowest point in life, facing a serious criminal charge or a messy and protracted divorce. The outcome of the case may shape their future. For this reason, most lawyers have encountered family and friends wanting to pitch-in to fund a proper case for a loved one. The question that arises is what are the ethical and practical limits to third-party payers. This is the focus of this blog post.
The first and sometimes hardest point for the client and his or her financial helper is to remember the attorney is limited to working toward the client’s objectives. Sometimes this may differ from what family or friends, who may be paying for the representation, wish. However, the attorney must work with the client to determine the means to reach his or her objective and cannot be guided by the desires or directives of any third party. The third party can refuse to pay, but the attorney has to work toward meeting the client’s objectives.
Secondly, a third-party may generally know about the case from the public filing in court, news or other public sources. However, a third party is not entitled to any confidential information shared between the attorney and his or her client, unless the client consents. There are a number of legal problems with sharing information, such as the lack of privilege between the third party and the other side.
This means the third party could be compelled in discovery to provide confidential information he or she learns if involved in the client’s case. While there are exceptions, such as if a client is under a diminished capacity, clients and third parties must be mindful of attorney-client confidences and the privilege that prevents the attorney or client from being compelled to reveal their confidences.
Third, sometimes the third party, particularly in domestic cases, may have direct or indirect legal interests in the case, such as parents who have DCS’ placement of their adult child's children. In these cases, there may need to be attorneys for each of these litigants who may have different interests at different times. In theory, the third party could pay for the representation and pay for their own counsel as well. These cases become complex and take open and frank discussing with counsel about the limits of confidentially and if joint representation is possible.
Finally, if a third-party payer and the client have a disagreement and the third party stops paying, it may cause a financial burden or otherwise on the attorney who may seek to withdraw. But the third party cannot control the litigation. The take away is third-parties can and do pay for representation of others, but there are specific limits to what information they can obtain and they cannot influence the case handling or objectives. Parties and third-parties in this situation should be clear as to the limits.
This blog post was written by attorneys at Dixon & Moseley, P.C. who handles a wide spectrum of domestic, civil and criminal cases brought in Indiana Courts. This blog is intended for general educational purposes and not specific legal advice or a solicitation for services. It is an advertisement.
