Opinion 93-23
(December 1993)

For purposes of responding to your inquiry, the committee has considered the following facts: Your client is a blood donor who has been diagnosed as HIV positive. The recipient of your client's blood is the plaintiff in a lawsuit against the blood bank who has requested that your client provide authorization for the CDC to release a sample of your client's blood which has been frozen for years. In exchange for the authorization, the plaintiff has offered to pay your client $6,000 now with no conditions or $30,000 at the successful conclusion of his case against the blood bank only if the plaintiff's HIV virus and your client's are the same. Because of your client's health and financial condition, he wants to accept the $30,000 offer and you have asked for an opinion concerning whether consummating this agreement is violative of the Rules of Professional Conduct.

Although you have not cited the rule specifically, your inquiry makes reference to Rule 3.4(b) of the Rules of Professional Conduct which provides:

A lawyer shall not:

(b) falsify evidence, counsel or otherwise assist a witness to testify falsely, pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness' testimony or the outcome of the case....

In reaching the conclusion that the contemplated arrangement is not in violation of Rule 3.4(b), the committee has assumed that the agreement is simply for the purpose of authorizing the release of the blood sample.

Furthermore, in keeping with your ethical obligations under Rule 1.1, relating to competence, you should obtain a release for your client from the plaintiff to ensure that your client will not later be made a party to the action by the plaintiff. Finally, during the committee's deliberations, it was suggested that you should try to eliminate the condition requiring the plaintiff to prevail in the litigation since there are a variety of scenarios by which the plaintiff might lose the case, such as the competence of the representation of the plaintiff, the evidentiary rulings or other intangible factors which will result in your client receiving nothing even though the virus he has is the same as the plaintiff.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.