A lawyer, including a legal aid staff lawyer, may not ethically discontinue or withhold legal services to existing clients as a result of a strike or labor dispute with the lawyer's employer.
References: MCPR Canons 5, 6; MCPR DR 2-110, DR 5-107, DR 6-101(A)(3), DR 7-101(A); CI-637; ABA Op 347.
The executive director of a legal services corporation wishes to know the ethical responsibilities of the corporation's board of directors to legal aid clients arising from a labor dispute between legal aid staff lawyers and their corporate employer. The inquirer also seeks guidance with respect to the staff lawyers duties to legal aid clients during such a strike.
In CI-637 the committee stated that absent a special agreement, a legal aid client employs the legal aid office as a firm. Nonetheless, the individual lawyer-board members are not required to accept personal responsibility for the office's clients if the legal aid office is forced to discontinue service for lack of funding. This analysis also applies where representation is interrupted or discontinued as a result of a strike or labor dispute between the staff lawyer and their corporate employer.
The committee stresses, however, that the board of directors is not absolved of all responsibility. Traditional ethical principles of our profession require the board of directors of a legal services corporation to take measures to safeguard the client's interests, including (a) immediately giving notice to existing clients of the interruption in legal services, and (b) employing every reasonable effort to arrange substitute representation and to minimize the risk of prejudice to the client' legal rights as a result of a strike.
It is the professional responsibility of all lawyers to provide legal services to indigent clients who cannot otherwise obtain representation. ABA Op 347 cites ABA Model Code of Professional Responsibility Ethical Consideration EC 2-25, which says:
"The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer . . . . Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the profession to institute additional programs to provide legal services, lawyer referral services, and other related programs have been developed by the profession. Every lawyer should support all proper efforts to meet this need for legal services."
Clearly all members of the profession, including lawyer-board members, should take necessary actions to ensure that the interests of legal aid office clients will be protected in the event of strike.
Similarly, it would be unethical for legal aid staff lawyers to discontinue or withhold legal services to current legal aid clients during a labor dispute with their corporate employer. This conclusion is supported by MCPR Canon 5, "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client," and specifically MCPR DR 5-107 which states:
"(A) Except with the consent of his client after full disclosure, a lawyer shall not:
". . .
"(2) Accept from one other than his client anything of value related to his representation of or his employment by his client . . ."
If staff lawyers were to withhold services or discontinue representation of clients to gain personal advantage, they would in effect be seeking value from the board related to their continued representation of and employment by the clients.
MCJC Canon 6 says: "A lawyer should represent a client competently." MCPR DR 6-101(A)(3) mandates that a lawyer shall not "neglect a matter entrusted to him."
MCJC Canon 7 provides: "A lawyer should represent a client zealously within the bounds of the law." MCPR DR 7-101 prohibits a lawyer from intentionally prejudicing or damaging a client during the course of the professional relationship. Withholding services, such as refusing to attend court hearings, may prejudice the rights of a client and violate a lawyer's ethical responsibilities to the client.
MCPR DR 2-110(A) establishes general requirements for withdrawal from pending matters:
"(1) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.
"(2) In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules."
The rules governing permissive withdrawal from a matter are set forth in MCPR DR 2-110(C):
"If DR 2-110(B) is not applicable, a lawyer may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in matters, unless such request or withdrawal is because:"
The rule lists a variety of reasons giving rise to permissive withdrawal. None applies to the facts presented. However, recognizing that there are situations which may present a withdrawal question, MCPR DR 2-110(C)(6) provides for withdrawal under circumstances where the lawyer "believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of good cause for withdrawal." While the language of MCPR DR 2-110(C)(6) refers to a "proceeding pending before a tribunal," we find no reason to limit its application to matters in litigation. The proposed Final Draft, ABA Model Rules of Professional Conduct, May 30, 1981, Proposed Rule 1.16(c) would permit withdrawal generally if "good cause for withdrawal exists." This committee has reviewed the proposed final draft of the Model Rules of Professional Conduct, and endorses proposed Rule 1.16(C).
A decision temporarily to withhold services to existing clients during a labor dispute would be motivated by a desire of the staff lawyers to obtain wage and fringe benefit concessions from their employer. This would not constitute "good cause," nor would it take into account the best interests of the clients. As stated in American Bar Association Model Code of Professional Responsibility Ethical Consideration 2-23:
"A decision by an attorney to withdraw should be made only on the basis of compelling circumstances, and in a matter pending before a tribunal he must comply with the rules of the tribunal regarding withdrawal. A lawyer should not withdraw without considering carefully and endeavoring to minimize the possible adverse effects on the rights of his client, and the possibility of prejudice to his client as a result of his withdrawal . . . ." Emphasis added.
Therefore, a lawyer, including a legal aid staff lawyer, has an ethical duty to be available for advice and counsel to existing clients, and to attend all court hearings to protect the clients' interests. Lawyers may not discontinue or withhold services to existing clients because they are engaged in a labor dispute with their employer.