Legal Ethics Opinion No. 1453

Confidences and Secrets; Communication With Adverse Party;
University Legal Services Office Seeking Consent From Student
Victim Before Providing Representation to Student Defendant

You have presented a situation in which an office, located at a
university, offers prepaid legal services for students who have
paid the student activity fee.  You advise that most students pay
this fee, which is distributed under the direction of Student
Council.  For organizational purposes, the office is viewed as a
part of Student Council, although Council does not oversee
day-to-day operations and has delegated responsibility for
oversight of the office to a Board of Advisors, consisting of
students, faculty members, administrators and a member of the
local bar.  This Board sets policy guidelines and is responsible
for handling budget and personnel matters, but does not review
day-to-day operations either.

You indicate that the Board has set a policy whereby, according
to the by-laws:  

          The office shall represent students charged
     criminally, where the complaining witness or victim is
     a student, only with the consent of the complaining

You indicate that the office determines whether or not the victim
consents by sending a letter.  Only an actual affirmative
response constitutes consent whereas a lack of response is
treated as no consent. 

Finally, you advise that, typically, the student-defendant will
come to the office for an initial consultation, during which the
student status of the victim is discovered.  At that point, the
office tells the defendant that it cannot commit to
representation and says that it will give notice when it makes a
determination.  You have represented that the office takes care
not to prejudice the defendant's case and that the office is
careful to give notice as to whether or not it will provide
representation of the defendant well ahead of any court

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 4-l0l(B) which precludes a lawyer from
knowingly revealing a secret or confidence of his client; and DR
7-103, which prohibits direct communication between an attorney
and an opposing party, except under specified circumstances.

You have asked the committee to opine (l) as to the ethical
propriety of the policy generally, (2) as to any ethical
impropriety regarding the policy on victim consent requirements
and its procedural implementation, (3) as to whether the office
has accepted representation of the defendant on the basis of the
initial consultation, and (4) as to any obligation the office has
to the defendant to explain the basis for its refusal to provide

     1.   With regard to the general ethical propriety of the
          policy, the committee opines that the Virginia Code of
          Professional Responsibility does not preclude the Board
          from adopting the policy you have articulated.   

     2.   Since the student victim is not a party to the criminal
          proceedings, serving only as a witness for the
          Commonwealth, the committee opines that sending a
          letter requesting that the witness consent to the
          service's representation of the student defendant would
          not constitute improper communication.  Similarly, the
          use of that consent as the determining factor in the
          lawyer's decision as to whether to represent the
          student/defendant would not be improper.  However, the
          committee cautions that the sending of such a letter
          might, in certain situations, impinge on the protection
          of the defendant student's secrets and confidences in
          violation of DR 4-l0l.  

     3.   As to your inquiry regarding whether the office has
          taken on the defendant as a client, on the basis of the
          initial consultation, the committee is of the opinion
          that, although no attorney/client relationship has
          arisen in other respects, the potential client's
          initial interview created an expectation of
          confidentiality which must be protected by the

     4.   Finally, as to whether the office has any obligation to
          explain the reason for its refusal of representation to
          the defendant, the committee directs you to EC 2-28
          which states that a lawyer is under no obligation to
          act as adviser or advocate for every person who may
          wish to become his client.  The committee opines, then,
          that since the office has no obligation to accept
          representation of the defendant, the office also has no
          obligation to explain the refusal of representation. 

Committee Opinion
March 24, 1992