October 9, 1991
A lawyer acting as advocate for a party in administrative agency proceedings as part of a service provided to eligible parties by a government program may not disclose the lawyer's evaluation of the merits of the client's case unless the client consents or the disclosure is required by law.
A lawyer whose legal assistant, in the course of employment with the lawyer, acts as advocate for a party in administrative agency proceedings is responsible for ensuring that the conduct of the legal assistant is compatible with the rules of professional conduct.
References: MRPC 1.6, 5.3, 5.4(c); C-233; CI-1132; ABA Op 324; MCL 421.31; State Bar v Galloway, 422 Mich 188 (1985).
A lawyer has applied to be an advocate in the "Framework for Advocacy Program" created by the Michigan Employment Security Commission (MESC). Under this program, appointed individuals represent either employers or claimants in matters pertaining to employment issues. Both lawyers and legal assistants from the inquiring legal services group have applied to act as advocates on behalf of employers and claimants under the advocacy program.
The advocacy program sets forth the criteria for program participation and delineates three levels of assistance that an advocate would provide. These levels are categorized as follows: (1) information; (2) consultation; and (3) representation. The "information" level of assistance will be handled by administrative staff rather than by the advocates. It will consist of very general procedural information about the hearing process. Primarily, referee hearing booklets and issue facts sheet will be disseminated at this level.
An advocate will assist claimants or employers at the "consultation" and "representation" levels. The "consultation" level will require the advocate to evaluate the claimant's and/or employer's case and advise the party on the merits of the case and the likely outcome of an appeal. The "representation" level will require the advocate to represent the party at the hearing by eliciting the facts most favorable to the party, and establishing the facts needed to carry the burden of proof where the party has that burden, using testimony of the party and the party's witnesses and documentary evidence as is competent under the rules of evidence. The advocate may also be required at this level to present the theory of the case and formulate an argument based on such theory and the applicable statutory provisions and case law.
In the event that the case is found to be without merit by the advocate, the "Framework for Advocacy Program" requires the advocate to provide a "non-merit" statement to the client advising the client of the advocate's opinion that the case lacks merit. The "non-merit" statement is a summary of the facts of the case and the reasons for concluding that the case lacks merit. The program requires the advocate to submit the "non-merit" statement to the program administrator, and submission of the statement to the administrator is a pre-condition of payment to the advocate.
The lawyer asks whether complying with the reporting provision, to provide a copy of the "Non-merit Statement" to the MESC Program Administrator, would violate ethics rules.
The Committee does not review administrative agency procedures and does not purport to advise the legislative or executive branches in the proper exercise of their authority. However, it is appropriate to determine the scope of ethical requirements when lawyers and legal assistants under a lawyer's supervision choose to involve themselves in administrative agency proceedings.
The lawyers who represent claimants or employers in this advocacy program will be providing services to individuals under the "consultation" and "representation" levels. The description of the activities which will be undertaken at these levels falls within the parameters of work that make the lawyer an advisor, MRPC 2.1, at the "consultation" level and an advocate, MRPC 3.1, at the "representation" level.
We next address whether submission of the "non-merit" statement to the program administrator constitutes a violation of ethics rules. MRPC 1.6 provides that, with some exceptions, a lawyer shall not knowingly reveal a confidence or secret of a client. However, a lawyer may reveal confidences or secrets with the consent of the client, when permitted or required by the Michigan Rules of Professional Conduct, or when required by law or court order, MRPC 1.6(c).
The "Framework for Advocacy Program" is outlined in MCL 421.5(a) but the program rules pertaining to the submission of the "non-merit" statement were not adopted by the Michigan legislature. Thus, the rules are not laws that require disclosure. Even if the rules were adopted by the legislature, the Comment to MRPC 1.6 provides:
"Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these rules, but a presumption should exist against such a supersession." Emphasis added.
The "Framework for Advocacy Program" requires advocates to provide a "non-merit" statement to the program administrator if the client's case lacks merit. The program materials state that the "non-merit" statement must summarize the facts of the case and reasons for concluding that the case lacks merit. Obviously, any discussion about the merits of the case would have to include facts which the employer or claimant provided to the advocate.
In CI-1132 we discussed whether a prepaid legal service plan could regulate eligibility for service, classes of cases, fees and participating lawyer responsibilities. The opinion held that the governing body of a prepaid legal service plan has a right to establish and enforce policies for handling cases, as long as there is no interference with the independent professional judgment of the lawyer rendering the service. In accord, C-233. MRPC 5.4(c) carries on the prohibition against a lawyer permitting a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
ABA Op 324 addressed the role of the governing board of legal aid organizations. The opinion states in part:
"We believe that it is more desirable for a board of directors of a legal aid society, in determining which clients its attorneys may undertake to represent and the cases its attorney may prosecute, to set broad guidelines respecting the categories or kinds of clients and cases rather than to act on a case-by-case basis . . . . In addition to establishing broad policy, the board has the concomitant obligation to insure that its policies are being faithfully carried out by the society's executive director . . . and staff attorneys. To this end, the board may employ reasonable procedures to periodically review the actions of society personnel to determine whether the board's policy directives have been adhered to. Although a staff attorney may be asked to divulge certain information pertaining to his clients for the purpose of determining whether the board's criteria has been satisfied, we do not consider this an unreasonable encroachment upon a lawyer's independence nor do we believe that a lawyer breaches [confidentiality rules] by divulging such information."
If the client consents after consultation to the submission of the non-merit statement to the program administrator, or if the statement is required by law, then lawyer/advocates may submit the non-merit statement.
The inquirer indicates that legal assistants are also eligible to act as advocates for the claimants and employer. Legal assistants would provide the same services that the lawyers would provide at the "consultation" and "representation" levels. MCLA 421.31 allows MESC claimants to be represented by nonlawyers. See, State Bar v Galloway, 422 Mich 188 (1985). Thus legal assistants may represent claimants or employers in this program.
MRPC 5.3 provides that a lawyer having direct supervisory authority over nonlawyers shall make reasonable efforts to ensure that the nonlawyer's conduct is compatible with the rules of professional conduct. Where in the course of the legal assistant's employment at the law firm the legal assistant acts as program advocate the legal assistant is bound by the Michigan Rules of Professional Conduct. Cf, RI-55. The discussion about the preparation and submission of the non-merit statement applies to the legal assistants when the work is performed out of the law firm. In those instances where the legal assistants are not affiliated with a firm or legal services program, the Michigan Rules of Professional Conduct would not apply.