Your request for professional guidance, as set forth in your letter to me of May 6, 1987, was presented to the Professional Guidance Committee at its meeting on June 15, 1987. This will constitute the opinion of the Committee.
In your letter, you have raised the issue of your ethical obligation, as counsel for a plaintiff in a medical malpractice action, to continue to advance funds in an effort to locate and engage an expert witness. Your letter details the efforts which you have undertaken to obtain an expert witness, which efforts have been unsuccessful. You have expended costs approximating $7,000. To that end, the client has the ultimate obligation to pay the costs and while you may advance them, you are under no duty to do so. DR5-103(B).
You have also indicated that you have filed a petition with the court to withdraw as counsel for plaintiff. The petition has been denied. Accordingly, you are still counsel of record and are subject to obligations toward your plaintiff. Moreover, your right to withdraw (subject to court approval), may be limited by the contingent fee agreement with your client. Many such agreements set forth these rights and the consequences. This would be a matter of contract on which we do not pass judgment.
Your view, as stated in your letter, is that without an expert witness your plaintiff will suffer a non-suit at the time of trial. You have advised your client of this potential problem.
Your client has indicated her desire to have other attorneys review her file for possible substitute representation.
To date, no substitute counsel has come forward, although one attorney did review the file, and declined the representation.
Based upon the facts which you presented, the Committee concluded that you have met your ethical responsibility of representing your client zealously under DR7-101. We trust in that regard that you have detailed for your client everything that you have done to date and the reasons for your unwillingness to advance further funds.
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