Ohio Board Advisory Opinion Op 95-012

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 95-12
Issued October 6, 1995
Withdrawn by Adv. Op. 2023-10
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
[Not current-subsequent rule amendments to DR 5-103(B), eff. Jun. 14, 1999.]
SYLLABUS: It is improper for an attorney to follow a client's instructions to pay all settlement
funds to the client when the attorney is aware that the client entered an agreement with the
physician to pay medical expenses out of the proceeds of a settlement and the attorney with client
consent promised the physician to do so. The attorney should hold the disputed portion of the
funds until entitlement is established through mediation, arbitration, or if necessary, through a
request to the court.
OPINION: This opinion addresses the ethical duties of an attorney when a client instructs the
attorney to pay all settlement funds to the client despite the client’s prior agreement with the
physician to pay medical expenses out of the proceeds of settlement and the lawyer's promise to the
physician to do so.
Is it proper for a attorney to follow a client's instructions to pay all settlement funds
to the client when the attorney is aware that the client entered an agreement with the
physician to pay medical expenses out of the proceeds of a settlement and the
attorney with client consent promised the physician to do so?
During contemplated or pending personal injury litigation, clients of lawyers sometimes enter
agreements with physicians to delay payment of medical expenses to the physician until settlement
or judgment at which time the debt will be paid from the proceeds. This is a curious practice since
there is always a possibility that there will be no proceeds from settlement or judgment,
nevertheless, the practice exists.
To supplement these agreements, some lawyers send "letters of protection" to inform the physician
that the lawyer will abide by the client's instructions to pay the physician from the proceeds.
Letters of protection raise both legal and ethical issues. The legal issues are beyond the scope of
this opinion, but should be considered by attorneys. See, e.g., Solon Family Physicians, Inc. v.
Buckles, 96 Ohio App. 3d 460 (Ct. App. Cuyahoga County 1994) (holding that a "letter from
attorneys to doctor providing medical services on accident victim's behalf was sufficient to give rise
to surety relationship and made attorneys liable for accident victim's medical bill").

Op. 95-12 2
From an ethical standpoint, the contents of a letter of protection must comport with the Ohio Code
of Professional Responsibility. Disciplinary Rule 5-103 (B) permits only the guarantee of
litigation-related expenses of medical examination.
DR 5-103 (B) While representing a client in connection with contemplated or
pending litigation, a lawyer shall not advance or guarantee financial assistance to his
[her] 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.
The rule is not interpreted by this Board to be a carte blanche for an attorney to advance or
guarantee all medical expenses of a client during contemplated or pending litigation. To remain
within the ethical ambits of DR 5-103 (B) an attorney should advance or guarantee only litigation-
related expenses of medical examination.
Historic support for this view is found in ABA, Informal Op. 664 (1963) advising that a lawyer
may agree to pay the doctor's charges for diagnostic work, under agreement with the client that the
lawyer would be reimbursed therefor, but that the lawyer may not agree to pay the physician's fees
for treatment of the client since this would not be an expense of litigation. That opinion was based
on then ABA Canon 42 which stated "[a] lawyer may not properly agree with a client that the
lawyer shall pay or bear the expenses of litigation; he may in good faith advance expenses as a
matter of convenience, but subject to reimbursement." See also, American Bar Foundation,
Annotated Code of Professional Responsibility 202 (1979) (citing ABA Informal Op. 664, May 21,
1963 and ABA Informal Opinion 1005, November 18, 1967 for proposition that “[a]dvances for
medical expenses must be limited to costs of diagnostic work connected with the matter under
litigation and to costs of treatment related thereto").
Nevertheless, Disciplinary Rule 5-103 (B) does not necessarily prohibit an attorney from issuing a
"letter of protection" if the letter merely promises that with client consent the attorney will pay the
physician for medical expenses from settlement or judgment proceeds. A letter of protection
promising to withhold payment for medical expenses from proceeds of settlement or judgment is
different from a guarantee by the attorney that all medical expenses will be

Op. 95-12 3
paid. See Ohio State Bar Ass'n, Op. 86-6 (1986) (making the distinction that asking an attorney to
guarantee to withhold payment from proceeds is different from asking an attorney to guarantee
payment).
For purposes of clarity and conformance to the disciplinary rule, a "letter of protection" should
precisely state that the attorney is promising to pay the physician for medical expenses from the
proceeds of settlement, if proceeds are obtained, and should set forth that the client is liable for
expenses. Also, to remain within the ethical boundaries of the rule, an attorney always should be
clear in instructing the client that the client remains ultimately liable for such expenses. A "letter of
protection" should reflect these ethical boundaries. Even so, from a legal standpoint, a liability of
the attorney may be created. See, Solon Family Physicians, Inc. v. Buckles, 96 Ohio App. 3d 460
(Ct. Appeal Cuyahoga County 1994).
A problem arises when a client instructs an attorney to disregard an agreement by the client with
the physician and a promise by the attorney to the physician. The attorney holds funds to which
both a client and a physician claim entitlement. The problem must be resolved fairly in a manner
consistent with the disciplinary rules.
Disciplinary Rule 9-102 (B) is instructive. Under DR 9-102 (B) (4) a lawyer must relinquish to the
client funds to which the client is entitled to receive. The pivotal language within the rule is
"entitled to receive." The rule mandates prompt payment of funds to a client only when the client is
entitled to receive the funds.
DR 9-102 (B) A lawyer shall:
(4) Promptly pay or deliver to the client as requested by a client the
funds, securities, or other properties in the possession of the lawyer
which the client is entitled to receive.
In applying this rule, several approaches to the problem are considered. One approach would be to
follow the client's instructions and disburse the funds to the client despite the client's prior
agreement and or the attorney's promise with client consent to pay medical expenses out of the
proceeds. The Board rejects this approach. Disciplinary Rule 9-102 (B) (4) does not require an
attorney to pay a client funds to which the client is not entitled. A client's entitlement to the funds
is

Op. 95-12 4
dubious at best, when a client has entered an agreement with a physician to pay medical expenses
out of the proceeds of a settlement and a lawyer with client consent has promised a physician to
withhold payment for the medical expenses out of the proceeds of a settlement or judgment. This
Board is not alone in this view. Ethics committees in several states have advised that a lawyer may
refuse to abide by a client's instructions not to pay medical care providers when representations
were made that they would be paid. See e.g., South Carolina Bar, Op. 94-20 (1994) and 93-14
(1993); State Bar of South Dakota, Op. 94-4 (1994).
A second approach would be to reject the client's instructions and disburse the funds to the
physician in accordance with the client's prior agreement with the physician and or the attorney's
promise to pay medical expenses out of the proceeds. This approach has received mixed
endorsement in Ohio. The ethics committee of the Cincinnati Bar Association in Opinion 92-93-07
concluded that where an attorney, with a client's permission, wrote a letter of protection to a
physician agreeing to pay a medical bill out of the proceeds of settlement funds, the bill could be
paid to the physician despite the client's request to receive all of the funds. The committee
explained that
[w]hen a lawyer acts within the scope of his or her authority as agent for the client
and obligates the client to pay a physician's bill out of settlement proceeds, the client
is entitled to receive only the net proceeds, and not to demand receipt of all the
funds. Although legal considerations in the fields of contract law and agency law
bear on this issue, the lawyer would therefore be acting in accordance with the Code
of Professional Responsibility, and specifically DR 9-102 (B) (4), if he or she paid
the bill out of the proceeds and delivered to the client only the net proceeds.
In contrast, the ethics committee of the Ohio State Bar Association concluded that where the client
entered the agreement then asked the attorney to disregard it, "regardless of the merits of the claim,
and however desirous the lawyer may be to recognize it and pay it, the lawyer may do so only with
his client's consent." Ohio State Bar Ass'n, Op. 84-1 (1984). The ethics committee of the
Cleveland Bar advised that an attorney is ordinarily bound by a client's instructions to pay to the
client funds collected by the attorney for the client, but the attorney is not so bound where it is
reasonably clear that the client is not entitled to the funds. See Cleveland Bar Ass'n, Op. 87-3
(1988).

Op. 95-12 5
There is a mixed response around the country as well. Several states permit payment under certain
circumstances despite a client's instructions not to pay. See e.g., Colorado Bar Ass'n, Op. 94
(1993); Washington State Bar Ass'n, Op. 185 (undated). Several states do not permit payment
without client consent. See e.g., Connecticut Bar Ass'n, Informal Op. 81-11(1981); Delaware State
Bar Ass'n, Op. 1981-3 (1981); Maryland State Bar Ass'n, Op. 94-19 (1991) and Op. 92-4 (1991);
Rhode Island SupCt. Op. 91-32 (1991).
The problem with disbursing the funds to the physician when the client objects is that the lawyer
must decide entitlement. The lawyer in essence must rule on whether the physician has legal
entitlement to the funds. Although Solon Family Physicians, Inc. v. Buckles, 96 Ohio App. 3d 460
(1994) provides guidance, a lawyer's determination as to entitlement might be different from what a
court of law would decide on a case-by-case basis.
A third approach would be for the lawyer to reject the client's instructions and hold the funds until
the interests are severed. See e.g., Maryland State Bar Op. 94-19 (1993), Tennessee SupCt, Op. 87-
F-109 (1987). Some states suggest seeking resolution through interpleader. See e.g., Alabama
State Bar, Op. RO 86-63 (1986); Los Angeles County Bar Ass'n, Op. 478 (1994); Oregon State Bar
Op. 1991-52 (1991); Rhode Island SupCt, Op. 94-50 (1994) and Op. 93-16 (1993).
In this Board’s view, the third approach is the best approach under our disciplinary rules. In
following this approach, a lawyer would not relinquish funds to a client to which the client is not
entitled, would not deny the client's prior agreement with the physician, and the lawyer would not
dishonor his or her promise to the physician.
In conclusion, this Board advises that it is improper for an attorney to follow a client's instructions
to pay all settlement funds to the client when the attorney is aware that the client entered an
agreement with the physician to pay medical expenses out of the proceeds of a settlement and the
attorney with client consent promised the physician to do so. The attorney should hold the disputed
portion of the funds until entitlement is established through mediation, arbitration, or if necessary,
through a request to the court.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions regarding
the application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.