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Ethics Opinion

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RI-230

March 15, 1995

SYLLABUS

    A legal services agency which had previously referred an individual to an agency-paid private lawyer for representation in a matter may represent the individual's spouse on the same matter, provided that no confidences or secrets were shared between the individual and the legal services agency and the legal services agency and the private lawyer are not considered part of the same "law firm."

    References: MRPC 1.6(a) and (b), 1.8(f), 1.9(a) and (c), 1.10(a); RI-123, RI-154.

TEXT

A legal services agency referred an individual to a contract lawyer for legal representation. The referral occurred after the legal agency's intake person had recorded the person's name, address, age, race, and a brief description of the problem the client wanted to present to a lawyer. Prior to referring the client to the contract lawyer, the intake person also determined that the client was eligible for assistance, under the income guidelines of the Legal Services Corporation regulations. The contract lawyer and the individual met and discussed issues regarding a divorce including child custody. During the meeting the contract lawyer provided some advice, but decided that further representation was unwarranted.

Subsequently the legal services agency referred a second individual to the contract lawyer. The private lawyer was willing to represent the second individual, and in fact prepared and filed pleadings, but was disqualified because the individual was the spouse of the first client and wanted assistance in the same divorce action. The legal services agency asks whether a staff lawyer may continue the representation of the second client.

Loyalty to a client is paramount in the client-lawyer relationship. A lawyer's loyalty does not end when the representation of a particular client ends. A client should never fear that the client's lawyer would represent a party adverse to the client on any matter or substantially related matter for which the lawyer had previously provided representation.

The first question that must be answered is whether there was a client-lawyer relationship between the legal services agency and the husband. If the answer is yes, then the legal services agency could not represent the wife against the husband because the agency would be representing a person against a former client on the same issue or substantially the same issue that the former client received representation. MRPC 1.9 states in pertinent part:

    "(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.

    ". . .

    "(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

      "(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known; or

      "(2) reveal information relating to the representation except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client."

Under these circumstances, a client-lawyer relationship was not established between the first individual and the legal services agency during the intake process. Nothing in these facts indicates that the individual considered the legal services agency as the individual's lawyer, nor is there anything that would suggest that the agency handled the individual as its client. If confidential information had been shared during the intake process conducted by the legal services agency, MRPC 1.9(c) would be triggered. The facts state that intake consisted of qualifying the individual for assistance, obtaining the client's identity, and identifying the legal problem for which assistance was needed. It does not appear that any information protected by MRPC 1.6(a) was imparted.

This is not to say that the mere description of a legal problem to a lawyer can never create a client-lawyer relationship. For example, if an individual were to call a lawyer for the purpose of seeking legal assistance from that lawyer and during the course of the intake interview disclosed confidential information or secrets, then that lawyer would be precluded from using the information gained to the disadvantage of the individual, as a client-lawyer relationship would have been established. MRPC 1.6; RI-154. This rule would also apply to a nonlawyer intake person acting on behalf of the lawyer. RI-123.

If the arrangement between the contract lawyer and the legal services agency was such that they could be considered one "law firm," conflicts of the contract lawyer might be imputed to the legal services agency under MRPC 1.10(a). We are not given any facts to evaluate the entire relationship in this inquiry, but generally legal services organizations are distinct from their contract or panel lawyers. They do not share confidential information. They do not present themselves to the public as practicing together. They do not work together on the same cases - either a case is handled by the staff lawyer or by the contract lawyer. It does not matter that the contract lawyer may receive payment from the legal services agency, as long as the client consents and the contract lawyer's independent professional judgment is not interfered with by the legal services agency. MRPC 1.8(f).

Therefore the legal services agency is not disqualified from representing the second individual when the contract lawyer is disqualified under these facts.

 
     

 

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