The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Dealing With Costs in Pro Bono Cases in the Illinois State Courts
By Terrence J. Benshoof

The prosecution or defense of a civil case will generally involve an expenditure of costs: filing fees; service of process; arbitration or mediation fees; court reporters, and other expenses. Concurrent with the question of whether a client is entitled to pro bono representation, therefore, is the question of what sources there may be to cover any necessary costs and expenses. 

As noted in the Preamble to the Rules of Professional Conduct, attorneys have a responsibility to provide services in the public interest.[1] Such service necessarily entails hours of professional time without compensation.  The costs incurred during this representation are a problem that must be dealt with by counsel in order to provide necessary legal services.  

Some pro bono clients, such as churches, schools and other non-profit organizations, may have the resources to cover their own costs.[2]  In those cases where the client is unable to provide funds to cover legal costs, the federal pro bono program provides that costs incurred by the attorney may be reimbursed from the court fund.[3]  No such program is available in state court cases, however, so an attorney representing an indigent client who cannot afford the cost of litigation in an Illinois state court should determine what costs may be waived..[4]

Arguably, since the legal system has an expectation, if not an outright requirement of pro bono representation, the expenditure of funds by counsel, in the form of costs, to fulfill that obligation could be considered as ordinary and necessary business expense, and therefore deductible under the Internal Revenue Code.[5] However, it does not appear that the Illinois Supreme Court contemplates expenditures by attorneys of anything but their time in the representation of the indigent as a concomitant of professional responsibility.

Illinois Supreme Court Rule 298 discusses the waiver of certain fees, including service of process, in cases of pro se and pro bono litigation matters. Essentially, under Rule 298, the determination as to whether a court should waive filing fees and other costs is made on a case-by-case basis, with the Federal Poverty Guidelines referenced as a benchmark for the courts to use in making such determinations.[6]  A person wishing to take advantage of Rule 298 must request relief by application, supported by affidavit as to financial means.[7]

The key to obtaining this relief is whether the applicant meets the standard of available income at a level of 125% of the poverty level[8] and whether the applicant would be eligible for legal aid.[9]   If, after review, the court approves the application, costs are waived for that litigation.

There appears to be no distinction between a pro se litigant, a legal-aid represented client, and a pro bono litigant represented by private counsel. Thus, Rule 298 provides a vehicle for an otherwise qualified client to have at least some of the costs of litigation waived while represented by a pro bono counsel, without counsel being out-of-pocket for costs.

[1] Illinois Rules of Professional Conduct, Preamble (6A and 6B).

[2] If the attorney pays the costs for litigation undertaken on behalf of such an organization, so long as the organization itself is tax-exempt, it is possible that counsel’s payment of those costs may be treated as a donation for tax purposes.  

[3] Northern District of Illinois Local Rule 83.40. It should also be noted that in discrimination cases, veterans’ filing costs may be waived, regardless of finances, under 38 U.S.C. §4323(h)(1).  See also Benshoof, Appointments In The Federal Court Pro Bono Program, elsewhere in this issue.  There are limits to what is reimbursed in any case, so counsel should be careful to confirm what expenses will be reimbursed in any case.  See, e.g. U.S. v. Rivera, 292 F.Supp.2d 823 (E.D.Va. 2003) (“[D]efendants' request for the appointment of a jury consultant at public expense is properly denied.  Indeed, a jury consultant is neither ‘necessary for adequate representation’ of the defendants, as the CJA requires....8 U.S.C.  3006A(e)(1), nor one of the basic tools or “raw materials integral to the building of an effective defense.”), citing Ake v. Oklahoma, 470 U.S. 68, 76-77, 105 S.Ct. 1087 (1985).

[4] If the attorney advances the costs in such cases, unless the case is assigned by a tax-exempt organization, it is unlikely that his or her payments for those costs can be deducted as a charitable contribution, since deductibility is limited by the Code to governmental or other qualified charities, and does not cover payments made for or on behalf of individuals. IRC §§170; 501(c)(3).

[5] Internal Revenue Code §162

[6] Ill. S.Ct.R. 298

[7] Ill. S.Ct.R. 298(a)

[8] Ill. S.Ct.R. 298(a)(2)

[9] 735 ILCS 5/5-105.5(b).  Notably, under 735 ILCS 5/105.5(g), the court may also “appoint counsel to represent an indigent person, and that counsel shall perform his or her duties without fees, charges, or reward.”  Supreme Court Rule 299 was amended in 2006, to the contrary, to provide that “attorneys who are appointed by the courts of this state to represent indigent parties shall be entitled to a reasonable fee for their services.”  The rule goes on to address how the courts should determine what compensation may be paid to court-appointed counsel, setting minimums of $75.00 an hour for time in court and $50 an hour for time spent out of court. 

DCBA Brief