SBM - State Bar of Michigan

Note: This opinion does not cover the ethical issues that apply to military officers serving as lawyers within their respective military branch.

RI-383

May 20, 2022

SYLLABUS

A lawyer may participate in a program that provides legal services, whether or not the program’s administrators, governing boards, or governing board members are lawyers or non-lawyers. However, the program’s administrators, governing boards, or governing board members may not interfere with the lawyer’s independent professional judgment when handling a particular client’s matter.

Lawyers participating in such a program must take appropriate measures to protect against the disclosure of client confidences and secrets to any person not involved in the delivery of legal services to the client, including lawyers and non-lawyers in supervisory positions and who are employed by the program.

References: MRPC 1.0, 1.6 and (b)(1), 1.8(f) and (f)(3), 1.10, 1.13, 5.1, 5.4(c), 8.4; R-6, RI-12, RI-77, RI-210, C-233.

Management and Oversight by Lawyer not Representing Client.

An entity (local unit of government, nonprofit, etc.) operates a program providing legal services (the "Program") to persons meeting its requirements to receive legal services (e.g., senior citizens, criminal defendants, veterans, etc.). The Program employs lawyers (“servicing lawyers”), legal assistants, clerical personnel, and non-lawyer volunteers (“staff”) who perform these services and assist in the running of the Program. The Program fits within the entity’s organizational structure so that its governing body or administrators have direct or organizational control over the Program and/or staff. Administrative duties include setting broad policies needed to conduct such programs, instituting policies such as client eligibility for legal services, determining requirements for acceptance within the Program, and setting prioritization of client issues to be addressed. This control is unlike the relationship between, for example, a county prosecutor and a county board of commissioners, wherein the prosecutor is an independent elected official with authority and duties prescribed by law. In that situation, even though the county board of commissioners sets the funding levels, it has no supervisory control over the inner workings of the prosecutor’s office.

A member of the entity’s governing body, or an administrator, who is a lawyer (“Lawyer Manager”) wants access to specific client information regarding operation of the Program. The Lawyer Manager wants access to the Program files that contain client confidences, secrets, and client information such as names, addresses, phone numbers, locations, etc. The Lawyer Manager, while a lawyer, is neither providing legal representation to the clients of the Program nor otherwise functioning in a servicing lawyer role for the clients. Some examples of programs that may have this organizational structure are:

  • a lawyer employed as a county administrator with supervisory control over a county public defender’s office;
  • a lawyer elected as a county commissioner in a county with a senior citizen service agencythat includes a legal assistance program as one of its services; or
  • a lawyer employed as the executive director of a nonprofit homeless support organization that includes a legal-aid program as one of its many services.

The presented structure raises two important ethical considerations regarding the conduct of the Program, the servicing lawyers, and the Lawyer Manager. The two ethical questions posed are as follows:

1. The ability of the Lawyer Manager to direct or regulate a servicing lawyer's professional judgment in rendering the Program’s legal services, in order to fulfill the Lawyer Manager’s responsibility for “program management.”

2. The Lawyer Manager’s access to client confidences and secrets as well as other client information, or simply, confidentiality.1

Program Management

While the propriety of a lawyer participating in or exercising supervisory authority over a program falls under the scope of MRPC 5.4, the structural organization of a program does not and is outside the scope of the jurisdiction of this committee. 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." Additionally, MRPC 1.8(f) states:

“(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:

(1) the client consents after consultation;

(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and

(3) information relating to representation of a client is protected as required by Rule 1.6.

As more extensively discussed in Ethics Opinion RI-210, an entity’s governing body or administrators do have the right to set broad policies needed to conduct such programs, such as client eligibility for legal services, the types of matters which the Program will accept, and the priority of client issues to be addressed. However, it is equally clear within RI-210 that administrators, governing boards, or governing board members of such programs, lawyer or not, may not interfere with the handling of any particular client matter. Specifically, RI-210 provides that “[i]n 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…, or which has rules of conduct which would interfere with the exercise of independent professional judgment by a lawyer.” While RI-210’s fact pattern was based on a non-lawyer supervisor, this committee believes that the same analysis is true whether the supervisor is a non-lawyer or a lawyer.

Confidentiality

Client confidentiality encompasses two distinct areas of law:

1. The client-lawyer privilege, which “applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client;”2and

2. The rule of client-lawyer confidentiality, which applies “in situations other than those where evidence is sought from the lawyer through compulsion of law.”3

This opinion will only discuss the second area—the rule of client-lawyer confidentiality—because the Lawyer Manager’s access to client confidences, secrets, and other client information is not sought through the compulsion of law, but rather, through the Lawyer Manager’s position and assumed authority.

With limited exceptions, the general rule pursuant to MRPC 1.6(b)(1), is that a lawyer may not reveal client confidences or secrets. Because Lawyer Managers are not functioning as servicing lawyers for the clients of the Program, there are two problems with Lawyer Managers’ access to client confidences or secrets. First, disclosure of the client's confidences or secrets to a lawyer not representing that client is proscribed by MRPC 1.6(b)(1), which prohibits disclosure of a client's secret or confidences unless the client has consented after full disclosure. Unless the Program requires the client to agree to disclosure of confidences and secrets4 to the Lawyer Manager not working as a representative of the client, disclosure would be a breach of the ethical obligations of both the servicing lawyer, for disclosing the information, and the Lawyer Manager, for requiring it. Further, under MRPC 1.8(f)(3), a lawyer may not ethically accept compensation for representing a client from anyone other than the client unless information relating to representation of a client is protected as required by Rule 1.6. MRPC 1.8(f) applies with equal force where the person acting for the employer-organization is a lawyer who does not represent the client.5 Moreover, the Lawyer Manager’s access to confidential information raises concerns regarding possible conflicts under MRPC 1.7 and 1.9, as the Lawyer Manager would be privy to disqualifying confidential information about the representation.

RI-210 further discusses that “it is not permissible to discuss client matters with other lawyers, who are not functioning as lawyer for the client. This committee concludes the same applies for lawyers in a supervisory role. In RI-210, the committee opined that “lawyers participating in these kinds of programs must refrain from disclosing client confidences or secrets” to any
person “not directly involved in the delivery of legal services to the client” including lawyers employed by the same parent entity.

The above examples and the corresponding analyses are distinguishable from both in-house counsel and law firm situations. In the above examples, the employing entity is not the client being represented, whereas, in an in-house counsel scenario a lawyer’s supervisor (lawyer or non-lawyer) is a representative of the client-entity employing the lawyer.6 Likewise, in a law firm7
scenario, the supervising lawyer is considered to be involved in representing the clients of the firm.8

Conclusion

In conclusion, it is our opinion that these issues can be resolved by proceeding from the premise that the person receiving services from the Program is the client. A lawyer may participate in a program, even if an entity’s governing body or an administrator establishes overall policy for the conduct of the Program, provided that the member of the entity’s governing body, or an administrator, lawyer or non-lawyer, has no role in:

  • assigning personnel to handle any particular client matter,
  • does not supervise or direct the activities of the servicing lawyer in the handling of any particular client matter; and
  • does not otherwise interfere with the exercise of independent professional judgment by theservicing lawyer.

Further, a servicing lawyer participating in the Program may disclose to the entity or its administrators basic statistical data regarding the operations of the Program and the matters handled, but may not disclose any client-specific information protected under MRPC 1.6. Servicing lawyers may discuss client cases with other lawyers who are assisting in the representation of
program clients, but may not discuss client cases with or in the presence of Lawyer Managers, corporation counsel, or other lawyer or non-lawyer personnel not involved in the representation.

1. It needs to be emphasized that a Lawyer Manager who is claiming authority to access client confidences, secrets, and client information based on being a lawyer is equally subject to the Michigan Rules of Professional Conduct as the lawyers representing clients of the Program. See MRPC 8.4 and RI-12.
2. MRPC 1.6 Comments.
3. Id.
4. MRPC 1.6 prohibits even the disclosure of a client's identity if the disclosure would be ‘embarrassing’ or would ‘be likely to be detrimental’ to the client." RI-77.
5. See C-233.
6.See MRPC 1.13
7. The definition of ‘law firm’ includes government and corporate legal departments. MRPC 1.0, Comments.
8. MRPC 1.10 and MRPC 5.1