Opinion 1977

[Editor’s note: The inquirer manages a volunteer lawyer program. The staff includes the inquirer and a legal assistant. The program offers weekly legal clinics in family law matters staffed by volunteer lawyers. The inquirer refers persons wishing legal help to the volunteer lawyers for free consultations and also for pro bono representation. The program takes referrals from CLEAR and the community at large. The program staff opens files for all clients except for those for which a conflict exists. The file consists of an application for services that includes name, address, telephone number of client, name of the opposing party, client household and financial information and a brief summary of the legal problem. The client signs a release authorizing the program staff to speak with a volunteer lawyer about the case.

In addition, the program staff complete pro se dissolution forms for Spanish-speaking clients and for clients otherwise unable to do so on their own. This file contains notes about the client’s case and a record of the volunteer lawyer’s activities, but no copy is kept of the pleading forms after the client has reviewed them. The program staff screen CLEAR referrals for conflicts. If there is a conflict because program staff has been contacted by the opposing party, the case is returned to CLEAR. If a person from the community, not referred by CLEAR, asks for services and a conflict exists, the program staff refers that person to CLEAR and CLEAR attempts to find a volunteer lawyer.

Based on these facts, the inquirer asks whether it is a conflict of interest for the volunteer lawyer program to open a file on the “second” person and offer a consultation by a volunteer lawyer at the legal clinic and, if necessary because a conflict exists, try to find further pro bono assistance, provided that an attorney-client relationship has not been formed with the first person.]

The committee opined that a person seeking legal services should first be screened by the clinic for conflicts with other existing clinic clients. In order to ethically do the screening, the prospective client should be advised at the outset that anything they say is not considered confidential information until the clinic has decided it is able to provide services. RPC 1.6 applies to information provided for the purposes of trying to hire counsel even if no agreement is reached unless confidentiality is waived.

It is a violation of RPC 1.7 to establish an attorney-client relationship with a “second party” in an action once an attorney-client relationship has been established with the “first party”. The committee cannot answer the question of law as to when an attorney-client relationship has been established with the “first party” in your clinic.

If no attorney-client relationship has been established with the “first party”, there would not be a conflict of interest to assist the “second party” at the legal clinic. Again, the committee offers no opinion on when or how the attorney-client relationship is established.

Finally, if there were an attorney-client relationship with the “first party”, there would be no conflict if the clinic were to refer the “second party” out to another legal clinic or to a pro bono attorney on the volunteer attorney list; provided that no client secrets or confidences are disclosed. The “second party” should not be told why services cannot be provided to him. The clinic can do nothing more that refer him to other sources for assistance. The committee presumes that the volunteer attorneys that the clinic uses do not share client confidences with the clinic after a referral.