Opinion #102. Application of Vicarious Disqualification Rule to Students in Legal Clinic

Issued by the Professional Ethics Commission

Date Issued: February 2, 1990

A law‑school‑affiliated legal clinic provides representation to indigents pursuant to Rule 90 M.R.Civ.P. and Rule 56 M.R.Crim.P. The student‑attorneys are supervised either by faculty members or by full or part‑time attorneys “visiting” in this capacity from private practice. Individual student‑attorneys are assigned to individual cases, obtaining from clients the consents required under the Rules. The faculty or visiting supervising attorneys act as professional sureties for the competence of the representation provided by the student‑attorneys. From time to time the supervising attorneys cover court appearances for one another where scheduling conflicts or vacations intervene. Three kinds of factual situations have given rise to this inquiry:

1) Student‑Attorney A (supervised by Supervising Attorney X) is guardian ad litem for a minor in a protective custody proceeding. Unknown to A or X, Student‑Attorney B (supervised by Supervising Attorney Y) enters an appearance on behalf of one of the parties‑in‑interest (presumably a parent).

Question 1) Under what circumstances, if any, can A or B continue representation?

2) Supervising Attorney W is “of counsel” to a law firm in which he was formerly an active partner. Student Attorney C, whom W supervises, undertakes to represent a defendant in a civil action; a co‑defendant, although represented by a separate firm, is a regular client of W’s firm and the interests of the two defendants are potentially adverse. The separate firm representing the co‑defendant reports periodically to W’s firm on the progress of the litigation, and W’s firm can be expected to advise the co‑defendant concerning the case.

Question 2) Under what circumstances, if any, is C permitted to represent the defendant?

3) Student‑Attorney D has a part‑time job clerking for law firm GHI. Student‑Attorney E represents a client in litigation with a client represented by GHI. D and E are supervised by different supervising attorneys.

Question 3) Under what circumstances, if any, is E permitted to represent the party?

Discussion

The common thread in these three inquiries is the applicability of Maine Bar Rule 3.4(k), the so‑called “vicarious disqualification” rule. The applicability of the rule has two aspects, one being the relationship of the student attorney to the supervising attorney and the other being the relationship of the student‑attorneys among themselves.

That the relationship of the student attorneys and the supervising attorneys is a comprehensive one is well established by Rule 90 M.R.Civ.P., which provides inter alia:

(f) Supervision. The member of the bar under whose supervision an eligible law student does any of the things permitted by this rule shall:

(1) Assume personal professional responsibility for the student’s guidance in any work undertaken and for supervising the quality of the student’s work.
(2) Assist the student in preparation to the extent the supervising lawyer considers it necessary.

The rule imposes upon the supervising attorney the student’s obligation of professional responsibility. There is nothing in Rule 90 or in the Bar Rules which suggests a relaxation of Bar Rule 3, the Code of Professional Responsibility.

Application of the vicarious disqualification rule to the student‑lawyers among themselves is more problematic. The language of Rule 3.4(k)(1) refers to “partner or associate . . . “ and “lawyer affiliated with him and his firm.” This Commission takes the view that the clinic constitutes an aggregation of affiliated lawyers triggering the applicability of Rule 3.4(k)(1) (see ABA Informal Opinion #1235). This is based upon the language of the rule which disqualifies lawyers who are “affiliated” regardless of whether they constitute a firm. Rule 90, supra, makes clear that the acts of the student‑attorneys are the surrogate acts of the supervising attorneys. Other precedent supports the application of an analogous rule to Legal Aid organizations, Borden v. Borden, 277 A.2d 89, 91 (D.C. App. 1971).

While there is precedent supporting the effectiveness of a “screening” rule which would limit the imposition of the vicarious disqualification in situations in which effective screening of the “tainted” individual would avoid a conflict, this Commission has previously declined to establish such an exception by itself (Opinion No. 19), preferring that the Supreme Judicial Court make such judgments through the rule‑making process (see, for instance, Order of January 20, 1983 Amending Rules 3.4(h) and (k) published in the Maine Reporter at 449 A.2d at pp. xciv et seq. and accompanying discussion in the Advisory Committee’s Notes).

Notwithstanding a number of attractive policy arguments which can be made in support of a special “screening” rule for legal services agencies, it is for the Court to fashion such a rule‑not this Commission. In the absence of such a rule we are compelled to the conclusion that the student attorneys in the legal clinic are “affiliated.”

In light of the foregoing, we respond to the several inquiries as following:

1) Student‑Attorney B may not represent an adverse party while Student‑Attorney A serves as guardian ad litem, unless circumstances and consents set forth in Rule 3.4(d) obtain. Because the consent of a minor is involved, at least court approval should be obtained.

2) Student‑Attorney C may not represent defendant; the inquiry makes clear that consent under Rule 3.4(d) is unavailable.

3) Student‑Attorney E may not represent a client adverse to the client of the law firm by whom Student‑Attorney D is employed.


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