Ethical Issues Associated with Paying for Litigation (Series: Legal Ethics - Best Practices)

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Practical and entertaining education for
attorneys, accountants, business owners
and executives, and investors.
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DISCLAIMER
The material in this webinar is for informational purposes only. It should not be
considered legal, financial or other professional advice. You should consult with an
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it publishes is accurate, Financial Poise™ makes no guaranty in this regard.
About this PowerPoint: if you are looking at this PowerPoint without the benefit of
listening to the conversation that surrounded it then you are doing yourself a disservice.
This PowerPoint was prepared in contemplation of being viewed in conjunction with
listening to a one hour webinar on the topic
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MEET THE FACULTY
Moderator:
John Martin – Sugar Felsenthal Grais & Helsinger LLP
Panelists:
Dai Wai Chin Feman– Parabellum Capital
Gregory Hanthorn– Jones Day
Ken Epstein – Bentham IMF
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ABOUT THIS WEBINAR: Ethical Issues
Associated with Paying for Litigation
Lawyers’ ethical duties don’t just inform how they do their jobs – they also dictate
how they get paid. Join our panel for a discussion of ethical issues arising out of
legal fee arrangements, from basic requirements of reasonableness to ongoing and
developing law concerning third party litigation finance in multimillion dollar
cases.
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ABOUT THIS SERIES:
Legal Ethics – Best Practices 2019
Corporate scandals make the headlines periodically, but businesses and the lawyers that
work with them face ethical challenges every day, even in situations that are legally
compliant. This webinar series examines ethical issues confronted by businesses in a
variety of contexts, from so called “gray areas” to those involving outright corruption. The
panels consider and recommend different approaches to ethical decision-making and the
lawyer's role in advising business clients.
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EPISODES IN THIS SERIES
8/21/19 Episode #1:
Bankruptcy Edition
9/18/19 Episode #2:
Hot Off the Press- Recent Cases & Decisions
10/16/19 Episode #2:
Ethical Issues Associated with Paying for Litigation
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Dates shown are premiere dates.
All webinars will be available
On Demand approximately 4 weeks
after they premiere.

Episode #3:
Ethical Issues Associated with
Paying for Litigation
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Legal Restrictions on Legal Fees
(Some Rules to Keep in Mind)
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Rule 1.5(a-b): Fees -- Generally
a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for
expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform
the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other
employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible
shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the
representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes
in the basis or rate of the fee or expenses shall also be communicated to the client.
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Rule 1.5(c-d): Contingent Fees
c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter
in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be
in a writing signed by the client and shall state the method by which the fee is to be determined, including
the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal;
litigation and other expenses to be deducted from the recovery; and whether such expenses are to be
deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of
any expenses for which the client will be liable whether or not the client is the prevailing party. Upon
conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating
the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method
of its determination.
d) A lawyer shall not enter into an arrangement for, charge, or collect:
(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the
securing of a divorce or upon the amount of alimony or support, or property settlement in lieu
thereof; or
(2) a contingent fee for representing a defendant in a criminal case.
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Rule 1.5(e): Division of Fees (Among
Lawyers)e) A division of a fee between lawyers who are not in the same firm may be made
only if:
(1) the division is in proportion to the services performed by each lawyer or each
lawyer assumes joint responsibility for the representation;
(2) the client agrees to the arrangement, including the share each lawyer will
receive, and the agreement is confirmed in writing; and
(3) the total fee is reasonable.
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Rule 1.8 (a) – Current Clients: Specific Rules
a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an
ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable
to the client and are fully disclosed and transmitted in writing in a manner that can be
reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable
opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of
the transaction and the lawyer's role in the transaction, including whether the lawyer is
representing the client in the transaction.
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Rule 1.8 (e, f) – Current Clients: Specific
Rulese) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated
litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be
contingent on the outcome of the matter; and
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the
client.
f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-
lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
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Rule 1.8(i) – Current Clients: Specific Rules
i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of
litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
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Rule 5.4 (a-b): Professional Independence of a
Lawyera) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of
money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more
specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the
provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase
price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though
the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or
recommended employment of the lawyer in the matter.
b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the
practice of law.
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Rule 5.4 (c-d): Professional Independence of a
Lawyerc) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for
another to direct or regulate the lawyer's professional judgment in rendering such legal services.
d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice
law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may
hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any
form of association other than a corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
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Third Party Funding:
A Basic Overview
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Insurance as Third Party Funding
• In addition to providing coverage for judgments insured may have to
pay, insurance policies frequently require payment of legal costs
incurred in defense of potentially covered claims.
• Reasonably longstanding law concerning:
• Circumstances under which insurer can control defense
• Protection of communications with insurer from discovery
• Discovery/admissibility of insurance coverage
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Historical Restrictions on Funding: Champerty and
Maintenance
o Champerty: A bargain made by a stranger with one of the parties to
a suit, by which such third person undertakes to carry on the
litigation at his own cost and risk, in consideration of receiving, if he
wins the suit, a part of the land or other subject sought to be
recovered by the action. Black’s Law Dictionary (2d Ed.)
o Maintenance: The intermeddling of a disinterested party to
encourage a lawsuit. Curzon, L. B., Dictionary of Law (6th ed.)
(2002)

Lawyer Funding of Affirmative Claims
• Contingent fees allow lawyers to share risk/rewards of pursuing
claims, thereby “funding” legal costs of pursuing claim.
• BUT:
• Lawyer cannot advance non-legal costs (e.g., client living or
business expenses).
• Money received (if at all) upon conclusion of litigation, creating
need for interim financing.
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Third Party Litigation Funding
• Litigation funding mechanisms develop to address limitations
• Third party provides financing that is contingent – must be paid back
from recovery, but will not be paid back if no recovery
• Funding can be used to finance:
• Living/business expenses
• Lawyer hourly fees (though lawyer usually shares risk)
• Funder shares risk prior to resolution/funder shares in reward post-
resolution.
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Litigation Funding Markets
• Litigation funding mechanisms exist in the “consumer” context –
providing personal injury (or otherwise disabled) plaintiffs with
living expenses in exchange for share of recovery.
• Increasingly, however, litigation funding involves investment in
lawsuits brought by commercially sophisticated clients, or funding of
portfolios of cases brought by law firms.
• Litigation Funding is not a “One Size Fits All” Proposition
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Some (Potential) Ethical Issues
in Litigation Funding
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A Background Caution
• Third-Party Litigation Funding mechanisms are developing against the background of varying
State ethical rules. While various bar associations have offered suggestions as to issues that may
arise, many issues have yet to be formally litigated.
• Guidance is provided by “best practices” documents that do not have the force of law. For
example,
• Report of the ICCA-Queen Mary Task Force on Third-Party Funding in International
Arbitration (International Council for Commercial Arbitration, April 2018)
(https://www.arbitrationicca.org/media/10/40280243154551/icca_reports_4_tpf_final_for_print_5_
april.pdf)
• M. Steinitz & A. Field, A Model Litigation Finance Contract, 99 Iowa L. Rev. 711 (2014)
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Issue 1: Preserving Confidences
• Funder must be able to evaluate case to make prudent investment.
• The lawyer must take reasonable steps to preserve client confidences
as a matter of ethics (MRPC 1.6) and practicality (avoiding disclosure
of advice/opinions to the other side).
• The funder is not the lawyer’s client, so attorney-client privilege will
not apply.
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Preserving Confidences: Strategy
• Confidentiality agreements between Funders and clients limit
disclosure.
• Work product protection can extend to third party communications
if likelihood of disclosure to adverse party not “substantially
increased.”
• Lawyer should avoid disclosure of attorney-client communications,
and must avoid betraying client confidences.
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Issue 2: Independent Judgment and Control
• Funder has a stake in the outcome of the litigation, and a
corresponding interest in how lawyer and client proceed.
• The lawyer cannot allow receipt of payment from a third party to
influence the lawyer’s independent professional judgment or the
attorney-client relationship (MRPC 1.8(f)).
• A lawyer generally “shall abide by a client's decisions concerning the
objectives of representation” including “a client's decision whether to
settle a matter.” (MRPC 1.2(a)).
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Independent Judgement and Control: Strategy
• Funding agreements confirm client control and lawyer
independence.
• Funders do not provide legal advice; though many funders are
experienced trial lawyers they do not want to assume lawyer role in
day-to-day management and strategic decisions.
• Structures to assure alignment on settlement (first dollar recoveries,
etc.)?
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Issue 3: Fee Sharing /Conflict Concerns
• Lawyer may have superior awareness of funding availability/existing
relationship with funder. Potential “personal interest” conflicts
under MRPC 1.7(a)(2).
• Direct lawyer-funder relationships (in which funder is paid from
lawyer recovery) raise fee-splitting concerns under MRPC (5.4).
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Fee Sharing/Conflicts: Strategy
• Disclosures (to client) of litigation funding relationships.
• Independent counsel in advising client concerning certain
relationships.
• To avoid fee-sharing concerns:
• Funding arrangements with client, not lawyer
• “Portfolio” funding of lawyers
• But see New York City Bar Opinion 2018-5
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ABOUT THE FACULTY
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John Martin – jmartin@sfgh.com
John C. Martin is a partner at Sugar, Felsenthal, Grais & Helsinger LLP. John’s law practice is devoted
to providing representation and counsel in complex business disputes, including contractual, fiduciary,
and attorney professional responsibility matters. John’s clients range from individuals and small
businesses to multinational corporations, and he represents both plaintiffs and defendants in a wide
variety of commercial disputes, including corporate governance suits, trust litigation, and matters arising
out of lending and other financial relationships. He has extensive trial and appellate experience before
the State and Federal courts in Chicago, and frequently collaborates with other firms as local counsel.
John also frequently writes and speaks on issues related to attorney professional ethics and fees. He has
served as a past co-chair of the ABA Section of Litigation’s Ethics and Professionalism Committee and as
chair of the Chicago Bar Association’s Professional Fees Committee, in which capacity he has served as
an arbitrator and mediator in attorney fee disputes.
To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/john-martin/
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Dai Wai Chin Feman – daiwai@parabellumcap.com
Dai Wai is responsible for the development and execution of Parabellum's commercial litigation investment strategies. Prior
to joining Parabellum, Dai Wai was a litigation partner at Dorsey & Whitney LLP, where he specialized in commercial and
antitrust litigation. Dai Wai has broad experience in complex disputes concerning breaches of contract, competition, tortious
interference, trade secrets, restrictive covenants, licensing, rights of first refusal, shareholder oppression, soft intellectual
property, and securities. He has advised and represented clients ranging from Fortune 100 companies to closely-held family
businesses through all phases of litigation, from case assessment through trial, appeal, and enforcement proceedings. While
in private practice, Dai Wai was named a Super Lawyers Rising Star in Business Litigation for four consecutive years. Dai
Wai received his A.B., cum laude, from Georgetown University and his J.D. from New York University School of Law. He is
active in the Asian American Bar Association of New York, where he is a board member, Vice-Chair of the Judiciary
Committee, and former Co-Chair of the Litigation Committee. He is also a Fellow of the New York City Bar Association
Leadership Council on Legal Diversity, a member of the New York City Bar Association’s Litigation Funding Working Group,
and a member of the New York City Bar Association's Professional Ethics Committee.
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Gregory Hanthorn – ghanthorn@jonesday.com
For more than 30 years, Greg Hanthorn has successfully tried disputes ranging from
multimonth jury and bench trials to "no discovery" arbitrations. Greg has extensive
experience in the alphabet soup of consumer class actions (including TCPA, FDCPA, RICO,
ERISA, FCRA, and hybrid TILA/usury cases) and in major individual product liability,
federal Fair Credit Reporting Act, and leveraged buyout fraud litigation.
Greg is a member and past co-chair of the Federal Practice Task Force of the Litigation
Section of the American Bar Association and is also a past chair of the Litigation Section's
Ethics and Professionalism Committee. He is a past president of the Lamar Inn of Court
where he remains on the executive committee and is a past member of Berry College's
board of visitors and a past chair of the board of directors of the Atlanta Shakespeare
Company.
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Ken Epstein – kepstein@benthamimf.com
Ken Epstein is an investment manager and legal counsel at Bentham IMF, responsible for leading
the company’s investments in bankruptcy and insolvency-related matters. He serves as a resource
for debtors, creditors (including hedge funds, private equity funds and alternative asset
managers), bankruptcy estate representatives and other stakeholders seeking to maximize the
value of litigation claims.
Ken has extensive experience advising and managing debtors-in-possession, individual creditors
and creditor groups (ad hoc and UCC’s) and financial institutions in insolvency and bankruptcy-
related litigation matters nationally and internationally. He began his career as a lawyer in the
financial restructuring group of Cadwalader, Wickersham & Taft. Prior to joining Bentham IMF,
he was managing director in the restructuring and remediation group at MBIA, a publicly listed
financial institution.
To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/ken-epstein/
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Ken Epstein – kepstein@benthamimf.com
Ken Epstein is an investment manager and legal counsel at Bentham IMF, responsible for leading
the company’s investments in bankruptcy and insolvency-related matters. He serves as a resource
for debtors, creditors, bankruptcy estate representatives and other stakeholders seeking to
maximize the value of litigation claims.
Ken has extensive experience advising and managing clients in insolvency and bankruptcy-related
litigation matters nationally and internationally. He began his career as a lawyer in the financial
restructuring group of Cadwalader, Wickersham & Taft. Prior to joining Bentham IMF, he was
managing director in the restructuring and remediation group at MBIA, a publicly listed financial
institution.
To read more, go to https://www.financialpoise.com/financialpoisewebinars/faculty/ken-epstein/
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IMPORTANT NOTE: The material in this presentation is for general educational purposes only. It has been prepared primarily
for attorneys and accountants for use in the pursuit of their continuing legal education and continuing professional education.
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Ethical Issues Associated with Paying for Litigation (Series: Legal Ethics - Best Practices)

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