Litigation finance has overcome initial skepticism regarding litigation funding due to potential ethics issues, such as fee-splitting rules, maintenance, and champerty. Furthermore, modern third-party funding practices do not conflict with such duties as attorney/client privilege, attorney independence, and the work product doctrine.
Ethics
Delaware Decision on Work Product for Funding Documents
Lee Drucker
The Delaware Chancery Court handed down a favorable decision on work product protection for funding documents last week. Here are links to an article discussing the decision and the decision itself.
http://www.bloomberg.com/news/articles/2015-03-04/litigation-finance-communications-protected-business-of-law
http://law.justia.com/cases/delaware/court-of-chancery/2015/ca-7841-vcp.html
Read MoreChamperty, Maintenance, and Barratry
Boaz Weinstein
Champerty, maintenance, and barratry are related doctrines that trace their roots back to medieval England. The United States Supreme Court has succinctly described the three doctrines as follows: “Put simply, maintenance is helping another prosecute a suit; champerty is maintaining a suit in return for a financial interest in the outcome; and barratry is a…
Read MoreEthical Considerations for Counsel
Boaz Weinstein
As we discussed in our article on the process of securing commercial litigation finance, the first step in the litigation finance process typically involves a decision by a company, perhaps with its counsel, that it makes sense to explore whether litigation finance is an attractive option. Let’s view this from counsel’s perspective. Imagine the following…
Read MoreProtecting Privilege in Litigation Finance
Boaz Weinstein
As we discussed in our articles on the process of securing commercial litigation finance and claim valuation, litigation funders perform due diligence on potential investment opportunities, including evaluating the merits of the claim, the likely damages, the likely duration of the claim, and other factors. This diligence process typically includes the exchange of documents and…
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