Opinion #59. Volunteer Lawyers Project
Issued by the Professional Ethics Commission
Date Issued: September 4, 1985
The Volunteer Lawyers Project has posed several questions inquiring whether there are ethical questions regarding various internal relationships and in its contacts with clients. The Volunteer Lawyer Project is a project of the Maine Bar Foundation, a non‑profit corporation. It is operated pursuant to a contract between Pine Tree Legal Assistance, Inc. and the Maine Bar Foundation. The Project’s paid staff are employed by Pine Tree whose Executive Director is responsible to the Maine Bar Foundation for the operations of the Project. The Board of Directors of the Foundation acting through its VLP Policy Committee, provides a policy determination and oversight role for the Project.
A prospective client is first screened by a lay volunteer who determines whether he or she meets financial eligibility criteria and makes a preliminary assessment as to the nature and severity of the problem. If the client is eligible and presents a legal problem which the Project can accept, the case is forwarded to the lawyer of the day. The latter, who is a volunteer, refers the client to one of the pro bono attorneys in the area where the client resides who has agreed to accept cases of that type. After the referral is made, the Project does not monitor the case although it does provide an internal grievance procedure through which clients can process complaints about the manner in which their cases were presented.
The first question is whether an attorney‑client relationship exists between the Volunteer Lawyers Project and those who contact it for assistance. The Commission is of the opinion that no such relationship is created.
In the first place, the Project is apparently not a legal entity and certainly is not an attorney. It therefore cannot enter an attorney‑client relationship. It is also not covered by Bar Rule 3 (The Code of Professional Responsibility) which applies only to the professional conduct of “attorneys.” See Rule 3.1(a).
Must the Volunteer Lawyers Project keep confidential the information received from clients or prospective clients? The Commission answers in the affirmative.
Although the Project is not an attorney, its lay staff members who obtain confidential client information in the performance of their duties are persons “whose services are utilized by (a lawyer)” within the meaning of Rule 3.6(1) (1). The Executive Director (a lawyer) and other lawyers associated with the administrative operations of the Project must therefore exercise reasonable care to prevent such staff members from “improperly disclosing or using confidences or secrets of a client.” Rule 3.6(l)(1). Moreover, even a prospective client whose case is ultimately refused is a “client” for purposes of the rule. Grievance Comm. op. no. 8 (1980).
Must the Volunteer Lawyers Project monitor the ongoing representation provided by its pro bono attorneys? The Commission is satisfied that no such duty exists under Bar Rule 3. As stated above, the Code of Professional Responsibility does not apply to the Project since it is not an attorney.
Does a conflict of interest exist when a client has been assigned to a pro bono attorney if the adversary party is privately represented by an attorney who is also on the referral roster of pro bono attorneys? No conflict exists under these circumstances. Nothing about the fact that both attorneys have agreed to accept pro bono referrals creates a relationship with the Volunteer Lawyers Project which would be inconsistent with accepting a case opposing a client who had been referred by the Project’s staff.
Would a conflict of interest exist if clients on both sides of the same case were both referred to pro bono attorneys by the Project? The Commission believes that it would not.
The Project concedes that there is a risk that confidential information will accidentally be transmitted by Project staff members to persons with an adversary interest. Procedures are in place which appear to make this risk remote. Moreover, since the second prospective client in a given case may have no other source of free legal assistance if his case is refused, it would be cold comfort to such a person to protect the confidentiality of his confidential communications by, in effect, denying him the assistance of counsel altogether.
In Opinion #41, the Grievance Commission held that two attorneys who shared office space could not take opposite sides of a matter in part because of the danger that client confidences would be disclosed through their shared secretary. In that case, however, the shared employee had a duty to both of her attorney‑employers to assist in maximizing their chances of success in advancing the interests of their opposing clients. Here no duty or obligation is owed by staff of the Project to the pro bono attorneys. On the contrary, their sole obligation in this regard arising out of their employment is not to violate the procedures designed to protect client confidences from disclosure.
The Commission is also asked whether an attorney‑client relationship exists between the prospective client and the lawyer of the day which would preclude a partner or associate of the latter from representing the adversary party in the same matter. We are advised that the attorney of the day rarely or never meets the client face‑to‑face and ordinarily sees only a client information sheet describing the client’s problem and his eligibility for free legal services. Once the referral has been made, these materials pass permanently out of his possession. The Commission nevertheless concludes that an attorney‑client relationship exists for purposes of Rules 3.6(l)(1) and 3.4(a).
Although lawyer of the day’s exposure to confidential information about the client’s case is minimal, it clearly exists. It is well established that even a preliminary interview with a prospective client whose case is ultimately not accepted is a sufficient attorney‑client contact to invoke the duty imposed by Rule 3.6(l)(1) to keep confidential the information which was disclosed during the client interview. Grievance Comm. Op. No. 8 (1980). See also Mass. Bar Ass’n Committee on Professional Ethics, Op. Nos. 76‑6 (1976) and 81‑1 (1981). If it were otherwise, the lawyer of the day would be free to share with his partner or associate information about the pro bono client’s case which indicated potential weaknesses or fertile areas for investigation. Moreover, such a client, if his case had been successfully opposed by an associate of the lawyer of the day would, if aware of the connection, surely suspect that the relationship between the two lawyers had contributed to his downfall.
For the reasons given above, the Commission has concluded that receipt of confidential information by the lawyer of the day creates a limited attorney‑client relationship, at least for purposes of protecting the confidentiality of the information revealed. We also hold that the relationship in question is sufficient to make the pro bono client a “former client” for purposes of Rule 3.4(e). It therefore follows that no partner or associate of the lawyer of the day who had successfully referred a pro bono client could appear on the opposite side of the matter without the written consent of the client in question. Ibid. It also follows that no such case may be accepted without disclosing to the prospective private client that a partner or associate of the lawyer in question had, in his capacity as lawyer of the day for the Volunteer Lawyers Project, referred the pro bono client to opposing counsel. See Rule 3.4(a).
The last question presented is whether a conflict of interest exists if Pine Tree Legal Assistance represents a client whose interests are opposed to those of a person who has been referred by the Project to a pro bono attorney. The Commission is of the opinion that under some circumstances, disclosure of Pine Tree’s involvement in the referral process would be required.
It has been noted above that the staff persons at the Volunteer Lawyers Project are paid by Pine Tree Legal Assistance. These consist of the Project Coordinator, a Volunteer Coordinator, a paralegal, and a secretary/receptionist. The staff is supervised by Pine Tree’s Executive Director.
From the facts which have been furnished to the Commission it appears that under normal circumstances, a referral would be made without any direct contact with an employee of Pine Tree except the secretary/receptionist. It is not clear under what circumstances other staff persons employed by Pine Tree would become involved.
Assuming that Pine Tree already represented a person who was asserting rights adverse to someone seeking free legal assistance through the Project, it seems clear that the referral could be made once the client had been advised that staff members of the Project were paid by Pine Tree and that there was at least a remote possibility that confidential information received during the referral interview could be disclosed by design or through inadvertence. See Rule 3.4(a). The risk of such disclosure is minimized by the separation of functions between Pine Tree and the Project and the fact that Pine Tree generally has no financial interest in the outcome of its cases.
The harder question is presented by the converse situation in which Pine Tree is asked to represent a client in a matter in which a pro bono attorney is already representing the opposing party. Because, for the reasons noted above, the risks of disclosure of information received from the Project’s initial interview are minimal, the Commission has concluded that consent of the pro bono client is not required to permit Pine Tree to undertake the matter. It would seem to elevate form over substance to hold that the prospective Pine Tree client must be denied effective representation merely because Pine Tree employs staff members of the Project. The Commission is satisfied that, under these circumstances, it is sufficient if Pine Tree discloses to its prospective client its relationship to the Volunteer Lawyers Project and the fact that representation for the opposing party had been effected through the Project’s referral process. See Rule 3.4(a).