Disclosure and work product protection: Addressing common questions about legal finance
- Case law & ethics
The answer, in general, is no, and this article addresses the reasons legal finance agreements are typically protected from disclosure; the narrow circumstances in which the fact of funding may be disclosed and how judges tend to handle such disclosure; and why a small but vocal group of opponents of legal finance argue for mandating disclosure.
Commercial legal finance agreements are private financial transactions between legal finance providers and litigants. Claimants are not required or expected to disclose their private financial transactions when it comes to other forms of financing, such as general recourse bank loans or even law firm contingency fee arrangements, and there’s no reason to apply different rules to commercial legal finance arrangements.
When granting disclosure requests, judges must consider the question of relevance. Litigation is not an excuse for one party to conduct a fishing expedition into another’s finances; the financing details must be directly relevant to the merits of the claim or defense at issue. For example, in Worldview v. Woodrow (N.Y. App. Div. 2021), the New York Appellate Division declined to force disclosure of legal finance, holding that the details of the funding agreement had no bearing on any particular claim or defense.
There may be circumstances where limited disclosure of legal finance is appropriate, for example to prevent conflicts of interest. But even in those instances, courts and tribunals have drawn a line well short of universal disclosure.
In US Federal court, Rule 7.1(a) requires only that a party disclose its parent corporation, if any, and any publicly held corporation that owns 10% or more of the party’s stock. Under this rule, neither legal finance nor any other form of outside financing — bank loans, personal loans, etc. — are required to be disclosed.
In England and Wales, litigants are allowed to resist disclosure of the existence of a legal finance agreement, and certainly the terms on which the funding was provided, to the other side or to the court on the grounds of legal advice privilege. The court has the power to order disclosure in certain circumstances according to The Civil Procedure Rules [1998] R.25.14., which usually occurs in the context of security for costs issues.
Parties are not required to disclose legal finance in commercial litigations in Australia with the exception of class actions and insolvency-related proceedings. Article 54 of the ACICA Arbitration Rules and Article 41 of the ACICA Expedited Arbitration Rules require disclosure of the existence of funding and the identity of the funder for conflicts purposes, but these obligations do not extend to funding documents or communications. .
As of the date of this article, there are no rules requiring disclosure of legal finance in commercial litigation in the countries in continental Europe where legal finance is commonly used. However, some jurisdictions are considering legislative proposals that could change disclosure rules.
Documents connected with legal finance are protected from disclosure by the work product doctrine (or professional legal privilege as it is known outside of the US). Materials created for and provided to legal finance providers as a consequence of litigation are generally protected under the work product doctrine, the purpose of which is to protect the integrity of the adversarial process and prevent a party from gaining an unfair advantage by prying into their adversary’s strategy.
The work product doctrine protects documents that can be fairly said to have been prepared or obtained because of the prospect of litigation—this means that legal finance deal documents are protected because they were created due to the litigation. In Lambeth Magnetic Structures, LLC v. Seagate Tech., the court extended work product protection even to communications with potential legal finance providers in the period of time leading up to the litigation, because the communications were for the purpose of preparing for litigation.
Judges and courts have shown time and again that they are able to exercise their discretion to make sound decisions regarding the relevance of legal finance to individual cases and to determine whether requests for disclosure are offset by the risks of unfair prejudice, misleading the jury or wasting time. If disclosure is considered necessary, it should be limited and follow the much-cited order of Judge Dan Polster (N.D. Ohio) in In Re: National Prescription Opiate Litigation. In that case, Judge Polster issued the disclosure order in the context of appointing leadership counsel in a multidistrict litigation, for the stated purpose of confirming the absence of conflicts and the absence of funder control. Judge Polster appropriately required disclosure to be made ex parte and in camera. He also made clear that no discovery would be permitted into litigation finance agreements.
Proponents of mandating disclosure of legal finance argue that the fact and details of legal finance should be disclosed to the court and to litigation opponents in every instance. While proponents of overly broad disclosure assert that more transparency is needed, the fact that they are focused only legal finance suggests that their goal is simply to limit access to a valuable tool that helps businesses pursue recovery, and not to address any real problem. While specific rules vary by jurisdiction, courts generally recognize the often-disingenuous motives behind defendants’ disclosure requests and continue to support the protection of legal finance arrangements. In the pretrial discovery context, in Miller UK Ltd. v. Caterpillar, Inc., 17 F. Supp. 3d 711 (N.D. Ill. 2014), the US District Court for the Northern District of Illinois found financing documents irrelevant to defendant’s maintenance and real-party-in-interest arguments. And the context of trial presentation, Eastern District of Texas Chief Judge Rodney Gilstrap and Western District of Texas Judge Alan D Albright recently issued standing orders in limine precluding parties from introducing evidence or argument regarding legal finance.
In this blog series, Burford addresses common questions that clients have about legal finance. Learn more about other common ethics questions like champerty and maintenance and control.
