An IFP client is not prohibited from being represented by an attorney who is being paid. A 1935 decision from the Second Circuit found a litigant eligible for IFP status even though the litigant had paid for representation, apparently relying on the fact that the litigant’s relative had paid the filing fee.1 The exceptional fact was necessary, as the IFP statute at the time contained an attorney fee prohibition: “[A]ttorneys at law, representing such clients are prohibited from charging fees except such as are contingent upon the amount recovered.”2 Even in the face of a black-letter rule, courts reasoned that the law still had to look to the applicant’s financial status “as a whole”3 and could not consider the possibility of a sizable award generated from successful representation.4 Eventually, the statute dropped mention of attorney fees completely:
The former prohibition against attorneys charging fees in these cases except those contingent on the amount recovered, contained in the indirect source of this article, has not been retained in the Code. This prohibition was both unnecessary and unrealistic. The provisions of this Chapter will be used primarily in damage suits and workmen’s compensation cases in which, under the universal custom throughout the state, contingent fees are the only ones charged. To this extent, the prohibition was unnecessary. Further, there are some types of cases in which there are no pecuniary demands, and hence no amount which can ever be recovered. There is no reason why small fees should not be charged in such cases. To this extent, the former prohibition was unrealistic.5
As the above comment recognizes, a contingency fee is the most common type of fee agreement in the IFP context. A litigant can maintain IFP status even if the contract provides that the attorney will “advance all costs of litigation with reimbursement by the client at the conclusion of the suit.”6 Louisiana courts are consistent that the relevant inquiry is the IFP applicant’s indigency and that contingency-fee contracts should be ignored.7
One final attorney-fee wrinkle is the appointment of a curator. Although IFP status itself does not provide a litigant with an attorney, it may provide one for the litigant’s out-of-state opponent. In Jones v. Jones, the Supreme Court carefully weighed both the litigant’s IFP status and the law’s requirement of the appointment of a curator when “the defendant proceeded against is outside the jurisdiction of our courts.”8 As a rule, the fees for a curator are shouldered by the petitioning party.9 Ruling on equal protection grounds, the court determined that refusing to include curator fees within IFP coverage would deny indigent litigants the right to divorce if an out-of-state spouse could not be served.10 Applying this rationale, the Fourth Circuit stated the rule even more clearly: “A plaintiff proceeding in forma pauperis is not required to pay a curator’s fee.”11
- 1Jeffcoat v. Hammons, 160 So. 182, 184 (La. App. 2 Cir. 1935).
- 2Act No. 156, 1912 La. Acts 1, as amended by Act No. 260, 1918 La. Acts.
- 3Jeffcoat, 160 So. at 184–85 (“[W]e do not think a violation of the quoted provision would operate as a bar to the litigant’s right to avail himself of the act as a whole, if his financial condition and the facts of his case otherwise disclosed eligibility therefor.”).
- 4Loftin v. Frost-Johnson Lumber Co., 63 So. 252, 252 (La. 1913).
- 5La. C.C.P. art. 5182 cmt.
- 6Jackson v. Aetna Life & Cas. Co., 392 So. 2d 1073, 1074 (La. App. 3 Cir. 1980).
- 7See, e.g., id. at 1074–75 (“[I]n any event, we conclude that the right of an indigent should be determined by his ability to pre-pay the costs without examining any contingency fee contract entered into between the indigent and his attorney.”); Hudson v. Williams Olefins Dev., LLC, 2017-0705, p. 1 (La. App. 1 Cir. 7/11/17), 2017 WL 2981869 (“Consideration of the contingency fee agreements between plaintiffs and their counsel should not affect their pauper status.”).
- 8Jones v. Jones, 297 So. 2d 198, 200 (La. 1974); see also La. C.C.P. art. 5091(A) (providing that, in curator cases, “[t]he court shall appoint an attorney at law to represent the defendant . . . .”).
- 9La. C.C.P. art. 5096 (“The court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but shall be taxed as costs of court.”).
- 10Jones, 297 So. 2d at 200.
- 11Warren v. Warren, 622 So. 2d 864, 866 (La. App. 4 Cir. 1993).