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Ethical Considerations in Pro Bono Public Service Representations

By Gina L. Hendryx, General Counsel

By volunteering to provide legal services as an “Oklahoma Lawyer for America’s Heroes,” you are participating in a time-honored tradition of assisting those most worthy with access to legal information and legal representation. Whether you give of your time and talent through short-term limited contact or lengthy advanced representation, there are ethical implications to consider. The following will review basic scope of representation and potential conflict snares to review with any representation.

SHORT-TERM LIMITED LEGAL SERVICES

Examples of short-term representation include hotlines, counseling clinics, assistance with forms, and advice and counsel only consultations. These types of services are short in duration and usually only involve one or two contacts with the person in need of legal advice. The Oklahoma Rules of Professional Conduct ease the application of the conflict rules to these types of representations.

Rule 6.5. Nonprofit And Court-Annexed Limited Legal Services Programs

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
   (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and
   (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this rule.

Comment

  1. Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services — such as advice or the completion of legal forms — that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g., Rules 1.7, 1.9 and 1.10.
  2. A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation. See Rule 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.
  3. Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a) in the matter.
  4. Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer’s firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.
  5. If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.

This rule permits such short term, limited representations without the rigid requirements of formal conflict checks prior to the giving of advice. You may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. If you are undertaking such a limited scope representation, you should consider the following: 1) confirm with the client that you are providing a limited scope representation such as telephone consult only; 2) obtain enough information to deduce the problem and to identify the client; 3) obtain a limited scope representation agreement if you meet with the client.

Rule 6.5 only absolves the attorney who unwittingly gives legal advice to a potential client wherein a conflict may exist. You may not provide legal services, even on a limited basis, to a potential client wherein you are aware of an existing conflict.

CONTINUING REPRESENTATION

You may be called upon to provide more than a short term, limited representation. If so, you must begin any such review with a systematic check for conflicts. This includes checking for conflicts with any current clients (Rule 1.7), any former clients (Rule 1.9) and any conflict another member of your firm may have with the prospective representation (Rule 1.10). You may continue to limit the scope of the representation, but you continue to be charged with the identification of conflicts.

In a continuing representation, it is recommended that an engagement letter be employed. Considerations should include: 1) address the scope of representation and assistance to be provided; 2) agreement with regard to attorney’s fees (whether may be sought from adverse party) and agreement with regard to expenses of representation; 3) confidentiality; 4) termination of the agreement; and 5) any particular issues relevant to the facts of the matter being undertaken. You may use any form of contract that you currently draft for traditional clients. The fee portion should be modified to reflect the pro bono representation and to inform the client of any financial responsibility he/she has in the matter. The client should sign the agreement and be provided a copy of the same.

The primary considerations to pro bono representation center around the need to avoid (when possible) conflicts with other clients and former clients. These rules are relaxed when the volunteer service is of the type that is hindered by access to conflict information. When possible, you should continue to review all representations for any potential conflicts.

Remember pro bono clients are entitled to the same quality legal representation as your for profit clients. You may limit the scope of the representation; however, be sure and reach an understanding of the scope and reduce same to writing. The OBA’s ethics counsel and Office of General Counsel are resources for you should you have any questions regarding the undertaking of these pro bono clients.

Originally published in the Oklahoma Bar Journal -- March, 12, 2011 -- Vol. 82, No. 8