LEO #1633 ADVERSITY TO CURRENT CLIENT; ATTORNEY-CLIENT
RELATIONSHIP; LEGAL AID; CONFIDENCES; EXCEPTION TO
CONFLICT OF INTERESTS; REFERRAL PRO BONO CASES
Subject to the conditions and circumstances below, the committee
believes that a legal aid office may refer potential clients,
initially interviewed by nonlawyer staff, to private attorneys
serving on a volunteer pro bono panel, and still represent a party
adverse to such potential client in the same or substantially
related matter.
You have presented a hypothetical situation in which a five-person
legal aid branch office (two attorneys, one paralegal, two support
staff) maintains a panel of local private attorneys to whom are
periodically referred for pro bono representation low-income
clients who have been pre-qualified as financially eligible for
legal aid services. The legal aid program of which the branch
office is a part receives an annual allocation of Neighborhood
Assistance Act tax credits from the state, and most of the panel
members are given tax credits for the hours of work they perform on
these referral cases. One of the office's staff persons serves as
Pro Bono Coordinator. In this capacity she makes the referrals to
the panel members, maintains in-house file jackets on each
referral, periodically contacts the attorney and client regarding
case status, and keeps track of the reported pro bono hours to
ensure that the office does not run out of tax credits.
A client who is dissatisfied with the services rendered by a pro
bono referral attorney, just as are dissatisfied clients of the in-
house staff attorneys and paralegal, is informed of his or her
right to file an administrative grievance with the program's
executive director, with appeal to the board of directors. All pro
bono cases are assigned an internal case number and are included as
a separate category in the program case statistics. The attorneys
on the panel are covered by the legal aid office's malpractice
insurance for work performed for pro bono clients.
Certain financial information is obtained from all persons seeking
services from the legal aid office to determine their eligibility
for services. This information includes the amount and source of
all income coming into an applicant's household, and the
identification and valuation of all assets such as houses, real
property, vehicles or bank accounts. The legal aid office's
guidelines allow for deduction of necessary employment expenses,
medical expenses actually paid, and support paid to outside family
members, so such information is also gathered if necessary to
financially qualify the applicant. In general terms, an applicant
financially qualifies if his or her household income is at or below
125% of the federal poverty guidelines for that particular
household size and total assets are less than $5,000 excluding the
house, lot of residence and essential motor vehicles. All of this
information is taken from applicants at their initial contact with
the office, along with a brief description of their legal problem.
They are recontacted to schedule an interview with a casehandler if
the office's managing attorney determines they are eligible.
Initial applications are taken both by the office's intake
specialist and the pro bono referral staff person.
The legal aid office also uses its pro bono panel for referral of
otherwise eligible applicants who cannot be accepted for services
in-house due to a conflict of interest. If the staff person taking
the application determines that a conflict exists, she will
complete the application in the normal manner, obtaining financial
information and a brief description of the case, and give it to the
pro bono coordinator for referral. If there is a question
regarding eligibility or whether there really is a conflict, the
managing attorney is consulted after first being informed that the
question concerns a conflict referral case. Only that information
necessary to determine the eligibility or conflict question is
revealed to the managing attorney, who is not informed of the
identity of the applicant nor given any substantive information
about the applicant's legal matter.
Once the applicant is qualified, the pro bono coordinator attempts
to refer the case to an attorney on the panel, informing the
attorney that this is a conflict of interest case and therefore has
not been screened by the managing attorney for merit. If the pro
bono coordinator is unable to find an attorney to take the case, a
letter is written to the applicant so stating and giving him or her
the number of the Virginia Lawyer Referral Service, there being no
other bar association panels or pro bono organizations in the area.
If a panel attorney is found, then from that point on the case is
handled like any other pro bono referral case: it is assigned a
case number, tickled periodically to monitor status, and the
referral attorney is given the opportunity to claim Neighborhood
Assistance Act tax credits for his or her hours. However, unlike
regular pro bono referral cases, the three office casehandlers
would be shielded from any knowledge about the conflict referral
case.
Based on the facts presented, you have asked the committee to
address these questions:
1. Are persons whose cases are being handled by attorneys on the
pro bono panel properly considered to be clients of the legal aid
program, clients of the private attorney, or both? Is the answer
different for those referred due to a conflict?
With respect to both regular and conflict referrals to a pro bono
panel attorney, the committee believes that since no casehandler
(attorney) within the legal aid office undertakes to represent a
person whose case is referred to panel attorney, that person is the
client of the panel attorney, but not any of the attorneys in the
legal aid office. The relationship of attorney and client is
consensual and the parties must consent, either expressly or by
conduct, to the representation. 2A Mich. Jur. 12 Attorney &
Client, p. 501 (1990). The committee has previously opined that
the existence of an attorney-client relationship is determined by
the definition of the practice of law set forth in Part 6,
Subsection A of Section I of the Virginia Rules of Court. Legal
Ethics Opinion 1184. An intake interview by non-lawyer staff
personnel to determine a person's eligibility for legal aid
services, their legal needs or objectives, and to screen for
possible conflicts is not giving legal advice nor providing a legal
service as defined by the Supreme Court of Virginia. The committee
further believes that the referral of a person's legal matter to a
pro bono panel attorney by a non-lawyer staff person in the legal
aid office does not create any attorney-client relationship between
the legal aid office and such person. Such activity does not
involve the furnishing of advice or service under circumstances
which require the possession or use of legal knowledge or skill.
2. Do the conflict referral procedures used by the legal aid
office comport with the requirements of Canons 4, 5 and 9,
specifically DR 4-101, DR 5-101 and DR 5-105 of the Code of
Professional Responsibility?
3. Under what circumstances, if any, may a legal aid staff
attorney represent a party who is adverse to a person referred to
and represented by a pro bono panel attorney?
4. Under what circumstances and to what extent is the household
and financial information collected on the eligibility application
for legal aid services considered a "confidence" or a "secret"
subject to the provisions of DR 4-101? Is such information
confidential if the applicant is found to be ineligible? Is such
information confidential if the applicant is found eligible but
referred to a pro bono panel attorney either in the routine course
of business or due to a conflict? Do the conflict referral
procedures outlined above adequately maintain the confidentiality
of such information? If not, what changes in the conflict referral
procedures need to be made?
The committee believes that the controlling disciplinary rules
applicable to the situation presented in your hypothetical are DR
4-101 which requires a lawyer to protect client confidences and
secrets, and DR 3-104(C) which requires a lawyer or law firm to
exercise a high standard of care to assure compliance by nonlawyer
personnel with the applicable provisions of the Code of
Professional Responsibility. The committee does not believe that
Canon 5, specifically DR 5-105, applies to the facts presented in
your hypothetical because the legal aid office is not representing
multiple clients with conflicting interests, nor clients adverse to
former clients in substantially related matters.
DR 4-101(A) defines "confidences" to include any information
protected under the attorney-client privilege. The term "secrets"
is defined more broadly to include "other information gained in the
professional relationship that the client has requested be held
inviolate or the disclosure of which would be embarrassing or would
be likely to be detrimental to the client." The committee has
previously opined that identifying data about a client of a legal
aid office is a secret since it might be an embarrassment to the
client to have it revealed that he or she sought or received
services from a legal aid office. See Legal Ethics Opinion 1300.
Even if client information is shared with others or is a matter of
public record, such information may still require protection as a
"secret" if the client so directs or if the disclosure to others
would embarrass the client or is likely to be detrimental to the
client. Legal Ethics Opinions 1147, 1309. Moreover, secret
information may not be revealed voluntarily even if it is subject
to discovery. Legal Ethics Opinion 1546.
The committee has on prior occasions opined that when a person
discusses with a lawyer the possibility of employing the attorney
for a legal matter, but no attorney-client relationship ensues, the
information revealed by such person to the attorney is nevertheless
protected under DR 4-101. Thus, an initial consultation with an
attorney creates an expectation of confidentiality even where no
attorney-client relationship arises in other respects. See Legal
Ethics Opinion 1546 (lawyer must obtain consent of wife who had one
office consultation regarding divorcing husband and lawyer
undertakes to represent husband three years later); Legal Ethics
Opinion 1453 (university student who has initial consultation with
local attorney participating in prepaid legal services plan for
students must protect confidentiality of interview although no
attorney-client relationship has arisen in other respects).
In Legal Ethics Opinion 949 the committee addressed a situation
somewhat similar to the facts presented in your hypothetical. A
woman was seen in a legal aid office and received preliminary
information regarding a divorce. Some background information was
obtained and she received information on the cost of filing a
divorce. No further action was taken in that matter for over a
year until the woman was interviewed by a pro bono program, in
cooperation with the legal aid office, and referred to a private
attorney with respect to the same legal matter. In the interim, the
woman's husband had also consulted the legal aid office on an
unrelated matter prior to the filing of the divorce. When served
with the wife's divorce suit, the husband had the legal aid office
file the appropriate answer and cross bill. While acknowledging
that the wife did not actually retain the legal aid office for the
divorce, but merely sought some preliminary information, the
committee concluded that it would be improper for the legal aid
office to continue representing the husband, citing DR 4-101 and DR
5-105.
While the initial consultations in these prior opinions were with
a lawyer, rather than nonlawyer staff as in your hypothetical,
lawyers are charged with the responsibility of making sure that
nonlawyer staff preserve client confidences and secrets. DR 3-
104(C); EC 4-5.
In addition, information obtained by nonlawyer staff is imputed to
the attorneys in the legal aid office. See, e.g., Glover Bottled
Gas Corp. v. Circle M. Beverage Barn Inc., 514 N.Y.S.2d 440 (App.
Div. 2d 1987)(disqualification of defendant's firm that hired
paralegal previously employed by plaintiff's counsel on same case).
These prior opinions notwithstanding, the committee is mindful of
the admonition by the Court of Appeals for the Fourth Circuit in
Aetna Cas. & Sur. Co. v. United States, 570 F.2d 1197 (4th Cir.
1978):
It behooves this court, therefore, while mindful of the
existing Code, to examine afresh the problems sought to
be met by that Code, to weigh for itself what those
problems are, how real in the practical world they are in
fact, and whether a mechanical and didactic application
of the Code to all situations automatically might not be
productive of more harm than good, by requiring the
client and the judicial system to sacrifice more than the
value of the presumed benefits.
570 F.2d at 1202. The committee believes, and is persuaded by
legal ethics opinions from other states that while legal aid staff
attorneys are considered to be members of the same firm for
purposes of imputed disqualification under DR 5-105(E), the pro
bono attorneys on the volunteer panel are not members of that law
firm. Therefore the legal aid office may refer to the pro bono
attorneys potential clients who are adverse to existing or future
legal aid clients. See Oregon Op. 1994-138 (August 1994);
Pennsylvania Bar Op. 94-148 (November 14, 1994). The screening
procedures described in your hypothetical appear sufficient to
preclude in-house staff attorney access to the preliminary, but
nevertheless confidential information taken by the nonlawyer staff
person. Though such a screening system would be inadequate in the
private firm setting, nearly identical procedures have been
approved in other states, giving proper recognition to the reality
that a more stringent application of the rules and disqualification
would result in decreased access to legal services for the
indigent. Alabama St. Bar Op. 91-02 (February 21, 1991).
Thus, the Committee is of the opinion that nonlawyer staff in the
legal aid office may obtain minimum information from a prospective
client to determine their eligibility for legal aid services and to
determine whether a conflict exists, and make referrals as
required. As an added precaution, however, the committee believes
that the legal aid intake specialist should require each
prospective client to execute a written informed consent at the
intake interview in which the prospective client acknowledges that
the limited information given will not be treated as confidential
for purposes of enabling the legal aid office to screen for
conflicts or to make referrals. The information revealed during
the intake interview may include only that information necessary to
determine financial eligibility and to check for conflicts. Only
after a conflicts check reveals no conflict and eligibility is
verified should the individual be asked more information about
himself or herself and the legal matter.
The committee recognizes that other legal aid branch offices in
Virginia have different procedures for conflict referrals. This
opinion does not address the propriety of screening and referral
procedures different from those discussed herein, nor does the
committee suggest that legal aid offices employing other procedures
must operate in the manner set out above.
[DRs 3-104(C), 4-101, 5-101, 5-105; LEOs #949, 1147, 1184, 1453,
1546; Oregon Op. 1994-138 (August 1994); Pennsylvania Bar Op. 94-
148 (November 14, 1994); Alabama St. Bar Op. 91-02 (February 21,
1991); 2A Mich. Jur. 12 Attorney & Client, p. 501 (1990); Glover
Bottled Gas Corp. v. Circle M. Beverage Barn, Inc., 514 N.Y.S.2d
440 (App. Div. 2nd 1987); Aetna Cas. & Sur. Co. v. United States,
470 F.2d 1197 (4th Cir. 1978)]
Committee Opinion
June 9, 1995
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