May 4, 1994
A lawyer may participate in a county legal assistance program in which a nonlawyer county official oversees the program, and establishes and enforces overall policies regarding the efficient operation of the program, including policies regarding the broad categories of matters to be accepted by the program and priorities regarding the types of matters to be accepted, provided that the nonlawyer county official does not direct the activities of the lawyer in the handling of any particular matter.
A lawyer participating in a county legal assistance program may provide to a nonlawyer county official overseeing the program basic statistical information regarding matters handled in the program to ensure that established policies are being adhered to, but may not allow access to client specific information or any other client confidences or secrets, absent the informed consent of the client.
Lawyers participating in a county legal assistance program must take appropriate measures to protect against the disclosure of client confidences and secrets to nonlawyer county officials.
Lawyers participating in a county legal assistance program may employ the services of nonlawyers to assist them in representing clients and who will have access to client confidences and secrets, provided that the lawyers directly supervise the activities of the nonlawyers and ensure that the conduct of the nonlawyers is compatible with the professional obligations of the lawyer.
Lawyers participating in a county legal assistance program may discuss client cases with supervising lawyers assisting in the handling of client matters in the program, but may not discuss client cases with lawyers for the county or other persons who are not participating in the conduct of the program or in the handling of specific client matters, unless the client consents after full disclosure.
References: MRPC 1.6(b) and (c), 5.3, 5.4(c), 5,5; R-6; RI-83, RI-103; C-233; CI-564, CI-857, CI-859, CI-1132; ABA Op 324, ABA Op 334; ABA i1081, ABA i1232, ABA i1252, ABA i1394, ABA i1443; Miss Op 101; Mo Op 8; Ala Op 90-17; NH Op 1988-9/13; Wash Op 183; DC Op 233.
A county department (the "Department") of senior citizen services has taken over the operations of a senior citizen legal assistance program (the "Program"), previously conducted by an independent legal aid clinic. The Program offers free legal assistance to persons sixty years of age and older, based on financial need. The county retained the services of the same lawyers and legal assistant who preformed these services at the legal aid clinic. The Program also employs certain clerical personnel and nonlawyer volunteers to assist in the running of the Program.
The Department director, a nonlawyer desires access to specific client information regarding operation of the Program. The director desires access to the Program's "intake sheets," prepared by the legal assistant, which contain basic client information, such as name, address, demographic information and the general nature of the client's legal problem. The director further desires that this "intake" information, as well as lawyer log notes regarding work performed on client files, be available to the director on a computer program designed for tracking purposes.
The Program has a volunteer advisory board consisting of five lawyers in private practice from the county bar association. The Program lawyers meet regularly with advisory board members to obtain consultation and advice on the running of the Program, as well as occasional input on specific matters. The Department director, as well as the county's corporation counsel, desire to be present at some of the meetings with the advisory board.
Mail addressed to the Program is currently delivered to another county department. Some of that mail is opened prior to delivery to the Program personnel. The Department director has refused requests to have the mail delivered directly to the Program personnel. The Department director further has keys to all offices of the Program personnel, as well as all desks and file cabinets used by the Program personnel.
Currently, the Program lawyer coordinator handles all work assignments in the Program. The Department director desires to have control over the assignment of personnel to any particular file.
Lawyers within the Program have written the Committee, outlining the facts as summarized, and posing a number of questions regarding the propriety of the Department director's actions and other subsidiary issues. It is not the function of the Committee to comment on the activities of nonlawyers not subject to the Michigan Rules of Professional Conduct. Nor is it the function or prerogative of the Committee to form or express any judgment regarding the operations of a branch of county government matters left to those county officials charged with the operation of governmental bodies.
The facts presented by the inquirer do raise certain important ethical considerations regarding the conduct of the Program. The Committee is authorized to and will comment on the propriety of a lawyer participating in the Program as described in the request for the opinion.
Much has been written on the proper role of nonlawyer directors and other governing bodies of various forms of legal assistance programs, such as legal aid clinics, prepaid legal services plans and lawyer referral services. It is clear that such governing bodies have the right to set broad policies regarding the conduct of such programs, such as establishing categories of matters which will be accepted by the program, policies regarding client eligibility for services, and the establishment of priorities of client issues to be addressed. This was extensively discussed in ABA Op 324 and ABA Op 334. See, also, CI-1132 (governing board of prepaid legal services plan has the right and obligation to establish and enforce broad policies); ABA i1252.
It is equally clear, however, that nonlawyer directors or other governing bodies of such programs may not interfere with the handling of any particular client matter. MRPC 5.4(c) states:
"(c) A lawyer shall not permit 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."
Consistent with this Rule, it has been repeatedly held that nonlawyer directors and other governing bodies may not involve themselves in supervising or directing the conduct of specific client matters, or otherwise interfere with the exercise of independent professional judgment by the lawyer.
In R-6, addressing lawyer participation in a lawyer referral service, it was stated that a lawyer may not participate in any such program that involves supervision of the lawyer's handling of a client's case by a nonlawyer, or which has rules of conduct which would interfere with the exercise of independent professional judgment by the lawyer. In RI-83, addressing lawyer participation in a free legal aid clinic sponsored by a non-profit community social services organization, it was stated that the non-profit community organization is to have no ability to direct or regulate the exercise of professional judgment, or otherwise interfere with the lawyer-client relationship. In C-233, addressing lawyer participation in a prepaid legal services plan, it was stated:
"Nonlawyer plan administrators may in no way be permitted to exercise control or direction over the lawyer's handling of client matters. To do so would permit them to engage in unauthorized practice of law in violation of MCPR DR 3-101(A)." See, MRPC 5.5.
See, also CI-1132; ABA Op 324, ABA Op 334, ABA i1232.
Under the facts presented, the Program director seeks to supervise and monitor the handling of client matters, as well as make determinations regarding the assignment of personnel to handle specific client matters. Based on the principles discussed, it would not be permissible for a lawyer to participate in the Program if the nonlawyer director is to be involved in the handling of client matters.
Because nonlawyer directors and other governing bodies have the obligation and duty to establish and enforce program policies, it is essential that they have access to certain basic information to ensure that such policies are adhered to. In ABA Op 324, addressing lawyer participation in a legal aid clinic, it was stated:
"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."
Thus, there is no real question but that the nonlawyer director of the Program must have access to certain basic data if the director is to have any means of ensuring that policy directives are being carried out.
In this setting, however, it is the Program's senior citizens receiving legal services who are the clients, not the county or the Department director. Pursuant to MRPC 1.6(b)(1), a lawyer may not reveal client confidences or secrets. Thus, it has been repeatedly held in analogous settings that lawyers participating in these kinds of programs must refrain from disclosing client confidences or secrets to nonlawyer directors, funding agencies or other funding sources, or any other person not directly involved in the delivery of legal services to the client. See, e.g., R-6 (lawyer participants in lawyer referral service must preserve client confidences); RI-103 (lawyer participating in MESC "Framework for Advocacy Program" may not reveal client confidences to the MESC program director); CI-564 (lawyer participating in legal aid clinic must preserve client confidences). See also, ABA i1443; Wash Op 183; Miss Op 101; Mo Op 8; DC Op 233.
The tension here is then between the governing bodies "need to know" and the lawyer's duty of confidentiality. An appropriate balance between these competing concerns is obtained by granting access to certain kinds of basic statistical data concerning the operations of the program. For example, statistical data may be compiled regarding matters such as numbers of clients served, numbers of cases processed, kinds of cases processed, time spent on cases, etc. In addition, limited information regarding the handling of specific matters may be disclosed, provided that the client is in no way identified or identifiable from such limited disclosure.
Access to documents such as the "intake sheets" and "attorney log books" as described in the inquiry go beyond the limited information which could be properly disclosed. CI-857, CI-859. Thus, a lawyer may not participate in the Program if the Department director is to have access to these documents. For opinions discussing the limited nature of data which may be disclosed and further the need to prevent disclosure of the identity of the client or other client specific data, see, ABA Op 334, ABA i1081, ABA i1394. See, also, Ala Op 90-17 for a discussion of the use of a computer program to track all matters and compile this type of data, which is permissible, so long as nonlawyers have no access to client specific information.
Pursuant to MRPC 1.6(c)(1), a lawyer may reveal confidences or secrets with the consent of the client, but only after full disclosure to the client. Some of the Department director's concerns in this situation could potentially be handled through obtaining client consent, after full disclosure. It should be noted, however, that the county may not condition the receipt of services from the Program on the granting of such consent. NH Op 1988-9/13.
In view of the lawyer's duty of confidentiality, the nonlawyer Department director's ability to directly access all client files is not permissible. The lawyer cannot fulfill the obligation of protecting against disclosure of client confidences and secrets by placing client files in offices, desks and filing cabinets, free access to which is given to the Department director. To fulfill this obligation, the Program lawyers must be able to store files in secured areas, with no access available to persons not involved in the rendering of legal services under the Program. Additionally, mail to the program should be delivered directly to Program personnel, and never opened by other county personnel.
There is no problem presented by the Program's use of clerical personnel, volunteer or otherwise, to assist in the operations of the Program. It is necessary, and reasonably expected by clients, that legal assistants, secretarial and other clerical personnel will have limited access to client confidences and secrets in assisting the lawyer in the delivery of legal services. There is no problem with such personnel having access to client confidences and secrets necessary to assist the lawyer.
Special note must be taken, however, of MRPC 5.3 which states:
"With respect to a nonlawyer employed by, retained by, or associated with a lawyer:
"(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
"(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the persons's conduct is compatible with the professional obligations of the lawyer; and
"(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
"(1) the lawyer orders or, with knowledge of the relevant facts and the specific conduct, ratifies the conduct involved; or
"(2) the lawyer is a partner in the law firm in which the person is employed or has direct supervisory authority over the person and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action."
The Program lawyers must carefully instruct the nonlawyer personnel regarding the duty of confidentiality as well as take reasonable measures to ensure that such instructions are followed.
As to the issue of the advisory board, there is no problem with the Program lawyers discussing client matters with these lawyers, provided that the sole purpose of the consultation is for the advisory board members to assist the Program lawyers in the handling of client matters, for the benefit of the client. There is no meaningful difference in this regard from a junior lawyer in a private law firm consulting with a more senior lawyer on the handling of a particular matter.
However, it is not permissible to discuss client matters with other lawyers who are not functioning in the role as lawyer for the client involved. C-233. It would not be permissible to discuss client matters with or in the presence of county corporation counsel, who is representing the county, and not the Program's clients. Nor is it permissible to discuss client cases with or in the presence of the Department director. See opinions noted on the duty of confidentiality, especially ABA Op 334 (specifically stating that a nonlawyer executive director of a legal aid program may not participate in discussion of specific client cases).
In summary, a lawyer may participate in the Program, even if a nonlawyer county official establishes overall policy for the conduct of the Program, provided that the nonlawyer official has no role in the assigning of personnel to handle any particular client matter, does not supervise or direct the activities of the lawyer in the handling of any particular client matter, and does not otherwise interfere with the exercise of independent professional judgment by the lawyer.
A lawyer participating in the Program may disclose basic statistical data to the nonlawyer director regarding the operations of the Program and the matters handled, but may not disclose any client specific information to the nonlawyer director.
A lawyer participating in the Program must take reasonable measures to ensure that client confidences and secrets are not revealed. The lawyer cannot fulfill this obligation if the lawyer has no secure place to store client files, or if client mail is opened by non-lawyer personnel.
The Program may employ legal assistants and clerical personnel, on a volunteer basis or otherwise, who may have access to client confidences and secrets to the extent necessary to assist the lawyer, provided the lawyer instructs the nonlawyer personnel regarding the duty of confidentiality and takes reasonable measures to ensure that such instructions are carried out.
Program lawyers may discuss client cases with advisory board lawyers who are assisting in the representation of Program clients, but may not discuss client cases with or in the presence of the Department director, county corporation counsel, or any other nonlawyer personnel.