December 3, 1985
It would not be a conflict of interest for a publicly funded legal service organization to receive intake asset and income information from the adverse parties to a lawsuit, if each party was thereafter referred to private counsel for representation.
It would be a conflict of interest for the legal service organization to retain either side for in-house representation, having had access to vital information from the then unrepresented adverse party.
References: MRPC Canon 9; DR 4-101(D).
A legal services organization has agreements with two local bar associations under which local bar members will provide legal services to indigent clients on either pro bono or reduced fee basis. Occasionally, particularly in the domestic relations area, both parties will seek legal assistance from the legal services organization. Information is recorded on master control cards from all applicants as to income and assets to determine eligibility for services.
The legal services organization asks (1) whether it is a conflict of interest for the agency to act as intake center for both clients and refer each client to a different private lawyer; and (2) whether the agency may refer one client to the private bar while serving the other client through an agency staff lawyer.
MCPR Canon 9 provides that a lawyer should avoid even the appearance of professional impropriety. DR 4-101(D) states:
"A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, . . . ."
The facts provided do not indicate whether the client intake information is available to various employees, but assuming a spirit of cooperation would exist within the agency, the inadvertent or purposeful sharing of intake information appears possible. If so, a referral of both clients to a different private lawyer, sending only the information gathered as to the specific forwarded client, would be appropriate and would not create a conflict of interest. The referral might well take place after initial representation of one of the parties, such representation ceasing upon discovery that intake information relating to the second party had been received, recorded, and was apparently available.
The organization should not continue staff representation of either spouse after it has become known that each had made disclosure to the organization of assets and income information. In such circumstances to continue representation of either leads to the appearance of having obtained vital and relevant information from the then unrepresented opposition by a direct out of court inquisitorial process. Such client representation would raise the further thorny issue as to why the organization had chosen to represent one particular party, when perhaps the other would testify that they had phoned for services first in time or that there had been discrimination in deciding which party's legal position the organization wished to represent. See also CI-380 and CI-506.