Testimony Of Alan W. Houseman On Limited Legal Assistance And Other Provisions Relating To Civil Legal Assistance For Low-Income Clients - Center for Professional Responsibility

TESTIMONY OF
ALAN W. HOUSEMAN

ON BEHALF OF
CENTER FOR LAW AND SOCIAL POLICY
AND THE
NATIONAL LEGAL AID AND DEFENDER ASSOCIATION

ON

LIMITED LEGAL ASSISTANCE
and
OTHER PROVISIONS RELATING TO
CIVIL LEGAL ASSISTANCE FOR LOW-INCOME CLIENTS

July 3, 2000

The National Legal Aid and Defender Association (NLADA) and the Center for Law and Social Policy (CLASP) present this testimony to address your proposed new rule 6.5 and other proposed ethical rules which directly affect the practice or providers representing low-income clients in civil matters.

NLADA is the national membership association of legal aid and defender programs in the United States, which includes the civil legal assistance programs funded by the Legal Services Corporation and by other sources. CLASP is a public interest law firm which serves as counsel to NLADA and its member programs on ethical and other issues affecting those programs. Last year, NLADA and CLASP formed an Ad Hoc Working Group of legal services program directors and other legal services staff to focus on Ethics 2000. These comments generally reflect the thinking of that ad hoc group as well.

At the outset, let me express our appreciation to the Commission and its Reporters for carefully reviewing our comments and taking many of them into account when proposing changes in the Model Rules. We are particularly appreciative of your treatment of the "required by law" provision in Rule 1.6 and Comment 12 which addresses a significant problem facing the civil legal assistance community. We also support both your decision to incorporate the definition of "legal services organization" within the definition of "law firm" in both Rules 1.0 and 1.10 and your decision to provide needed flexibility to address practical problems in the delivery of civil legal assistance in Comment [3] to proposed Rule 1.0.

LIMITED LEGAL ASSISTANCE

RULE 6.5:

As our Testimony in February made clear, we strongly support the Commissions’s efforts to limit the extent to which an attorney is personally subject to Rules 1.7 and 1.9(a) when providing limited legal services and when there is no expectation at that time that continuing representation will be provided. We agree with the criteria used in (a) - these conflict rules should only apply "if the lawyer knows or reasonably should know that the representation of the client involves a conflict of interest." This proposed rule is necessary to ease the burden on "hotlines" and pro se clinics, which generally provide brief advice and brief service to a large volume of clients, but do not have the capability to identify conflicts of interest of which the hotline or pro se clinic attorney is unaware.

We also strongly support section (b) on imputed conflicts. When an attorney is providing short-term limited legal assistance and there is no expectation at that time that continuing representation would be provided, the limited nature of the services being provided reduce the risks normally associated with an attorney employed by a law firm. In our view, a conflict of interest should not be imputed to an attorney because of the attorney’s employment with a law firm when such an attorney is providing limited legal assistance to a client through a limited legal services program.

We also support the comments proposed by the Commission, although we have concern with Comment [1] which suggests that short-term limited legal services is typically only advice. While legal aid programs provide advice, including hotlines and pro se clinics, many providers of limited legal assistance also provide very limited short-term assistance that is not appropriately characterized as advice. For example, many pro se clinics help clients fill out court or other forms. Hotline attorneys may write short letters to a client’s landlord or welfare case worker, for example, to clarify a point of law or policy on the client’s behalf or to clearly state the client’s factual position. We think it is a mistake to limit the definition of "short-term limited legal services" as well as a mistake to spell out all of the types of activity that may fall within the meaning of the phrase. Therefore, we would suggest that the Commission delete the phrase - "typically advice"- in Comment [1].

We would also suggest an edit to Comment [5] to make clear that lawyers who are involved in providing brief limited legal assistance are protected under ethical rules while providing such assistance, even if they later are asked to provide ongoing representation in the same matter. For example, a lawyer may provide advice over the phone through a hotline but subsequently be contacted by the same client when the client seeks ongoing representation. If the lawyer is going to provide ongoing representation to the client, the lawyer would then become subject to Rules 1.7, 1.9(a) and 1.10 and would have to do a thorough conflicts check before proceeding. We would change the last phrase of Comment [5] as follows:

[5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client on an ongoing basis, the lawyer at that time must fully comply with Rules 1.7, 1.9(a) and 1.10 would become applicable.

While we support the approach taken by the Commission on this rule and believe it is appropriate to limit such a rule at this time to non-profit and court-annexed limited legal service programs, we reiterate our general view that ethics rules should not create a dual system of ethical rules, one for the poor and one for all others. To the degree practical, our suggestions on the ethical rules do not seek to establish lower or different standards of representation for low-income clients. Rather, we prefer modifications to accommodate the area of limited legal assistance that would apply to all attorneys, not just those who provide legal assistance to the poor. For example, we support the approach taken by the Commission on proposed changes in Rule 1.2. Rule 6.5 is addressing new ways of increasing access to legal services that have developed primarily in the context of efforts by legal services organizations, courts and bar associations to expand access to our civil justice system for low-income persons who cannot afford an attorney. It is appropriate for the Commission to begin to craft ethical standards for a changing world in a non-profit or publicly funded context. The profession needs to observe and assess how this new rule would work when limited legal services are not driven by the profit motive before we consider whether and under what circumstances a similar approach should be expanded to the for profit sector. After experience with a limited legal assistance rule for non-profit and court annexed programs, it may be appropriate for the ABA to consider expanding the rule to apply to any lawyer providing limited legal assistance.

GHOSTWRITING:

Several of the proposed rules affect the practice of ghostwriting, but the Commission has decided not to take up this issue. For example, Rule 1.16 relates to the practice of ghostwriting. It is not uncommon for courts to require continuing representation, such as an appearance in court, by the lawyer who intended to limit services to a client to the preparation of a court pleading or other legal document. Consistent with our oral and written testimony in February, we urge the Commission to propose for public comment a rule on ghostwriting. We repeat what we said in February:

We urge the Commission to give serious consideration to the issue of ghostwriting, a form of unbundled legal assistance which consists of "drafting pleadings and other court documents by lawyers for clients who go on to represent themselves pro se." Ghostwriting implicates Rule 3.3 (duty of candor to the court); 8.4(c) and (d) (conduct involving misrepresentation or prejudice to administration of justice); and 1.16 (withdrawal prejudicial to client), and local court filing rules. Some civil legal assistance providers and pro bono attorneys serving low income clients are providing pleadings and other legal documents to assist such clients in their own representation. Unfortunately, conflicting opinions have been issued by state bars, federal courts and commentators about the propriety of this practice. Because ghostwriting raises unresolved issues, such as whether it constitutes a fraud on the court or whether the attorney who provides ghostwriting services must make an appearance on behalf of the client, there is a need for clarity in a rule.

According to minutes of Commission meetings, we understand that the Commission does not intend to take up this issue but, instead, would leave the issue to courts as they consider changes in court rules. While there may be a need for court rules in some jurisdictions, we believe there is also a need to specifically address the issue as part of the Ethics 2000 process. Given the growth in this practice which is likely to continue into the future, we believe the Commission should focus some attention on the question to give guidance to the profession and to clarify how Rules 1.16, 3.3, and others should be applied in this context.

RULE 1.3:

Comment [4] to Rule 1.3 clarifies that diligence requires a lawyer to finish all matters undertaken for a client. However, it also states that, if the lawyer’s representation is limited to a particular matter, the relationship between the lawyer and client ends when the matter is resolved. Our February testimony expressed concern that the term "matter" does not refer to limited legal assistance and recommended consideration of language that would clarify that the rule applies to limited legal assistance. In our comment in April on proposed Rule 1.3, we urged the Commission to include in Comment [4] a sentence stating that when the client agrees to limit the scope or means of representation pursuant to Rule 1.2(b), the relationship between the lawyer and client ends when the lawyer provides the assistance agreed to. According to the minutes of your meeting in Memphis, a proposal similar to our comment was not adopted because it appeared to be inconsistent with proposed rule 6.5. We have reviewed proposed Rule 6.5 and do not see any inconsistency between either the text or the comments of Rule 6.5 and our proposal to add a clarifying sentence to Comment [4] of Rule 1.3. Therefore, we again urge the Commission to reconsider their earlier decision.

OTHER RULES AFFECTING THE DELIVERY
OF CIVIL LEGAL ASSISTANCE TO LOW-INCOME CLIENTS

We continue to have concerns about several of the proposed rules and wish to focus on a few in this testimony.

RULE 1.4: COMMUNICATION:

We support the April 27 draft of this proposed rule which makes no changes in the text of the rule. We also support the addition of Comment [1] which we believe is helpful to understanding the scope of the notice provision. We would add "or unacceptable" to the third sentence in the Comment [1] so that the sentence would read as follows:

For example, a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance unless the client has previously indicated that the proposal will be acceptable or unacceptable .

Finally, we are concerned that the rule could be interpreted to impose notice requirements that are not justified by Rule 1.4. For example, in Formal Opinion 96-399 (January 1996), Rule 1.4 was interpreted to require that legal services lawyers:

"must notify clients that circumstances such as incarceration or a change in immigration status will likely make them ineligible for further legal services, and thus result in a termination of legal services. The lawyer should also request that client keep her apprized of any changes that might affect their eligibility."

In addition, 96-399 also stated that:

"a legal services lawyer who accepts LSC funding should inform all clients of the accompanying practice restrictions and obtain their written agreement to abide by those restrictions, even if it does not appear likely that a particular representation will run afoul of those restrictions."

In our view, such notice requirements were not justified by, and go far beyond what is required by, Rule 1.4. In particular, we do not think that ethical rules for lawyers should be interpreted to impose or suggest reporting obligations for clients. Nor do we believe that ethical rules should be interpreted to provide "best practice" guidance to lawyers. The Commission may want to consider a new Comment [5] that would provide as follows:

[5] This rule requires lawyers to keep clients reasonably informed about the status of a matter and to explain a matter so that clients can make informed decisions. In addition to these provisions, a lawyer may be obligated by other provisions of law, or may wish, to inform clients about additional terms of the relationship between the lawyer and the client. Whether there are other legal obligations or whether lawyers should adopt particular practices that would enhance the relationship between the lawyer and the client are beyond the scope of these rules.

RULE 1.18 DUTIES TO A PROSPECTIVE CLIENT (NOVEMBER 15, 1999)

. Our March Comment on Rule 1.18 raised the difficult ethical issue which arises when an abusing spouse seeks assistance for the purpose of preventing the abused spouse from being represented by a legal aid program. Often a conversation designed to prevent another person from receiving assistance is not in fact an effort to seek representation from the lawyer.

Paragraph (c) prohibits a lawyer with a personal or imputed conflict to represent a client whose interests are adverse to a former prospective client in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the prospective client in the matter. However, paragraph (d)(2) permits representation in such situations if:

the lawyer who received the confidential information took reasonable steps to avoid exposure to more information than was necessary to determine whether to represent the prospective client.

Thus, if firms and legal services programs establish intake systems and develop protocols for hotlines that include reasonable steps to avoid exposure to more information than is necessary to determine whether to represent the prospective client and the conflicted attorney is screened, the abused spouse could be represented by another attorney in the firm or program. We recommend including a discussion of the need for legal services providers to develop such protocols in Comment [3].

COMMENT [3]

[3] In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether or not to undertake a new matter should limit the initial interview to SECURING AND DISCUSSING only such information as reasonably appears necessary for that purpose. LAW FIRMS, INCLUDING LEGAL SERVICES ORGANIZATIONS, MAY NEED TO ESTABLISH PROTOCOLS THAT INCLUDE REASONABLE STEPS TO AVOID EXPOSURE TO DISQUALIFYING INFORMATION. Where the information indicates that a conflict of interest or other reason for non-representation exists, the lawyer should so inform the prospective client or decline the representation. If the prospective client wishes to retain the lawyer, and if consent is possible under Rule 1.7, then consent from all affected present or former clients must be obtained before accepting the representation.

We also recommend that Comment [6] clarify how Rule 6.5 would apply to the abused spouse and other similar situations when the prospective client is provided limited legal assistance. Rule 6.5, the new proposed rule on limited legal assistance, would apply to the abused spouse issue under certain circumstances because prospective clients sometimes receive limited legal assistance. If the prospective client is, for example, an abusing spouse and is provided some limited advice under Rule 6.5, the lawyer providing advice would be exempt from any personal conflict unless he knew or reasonably should have known a conflict existed. In addition, pursuant to paragraph (b), there would be no imputation of the lawyer’s conflicts to other attorneys in the program. Thus, for the narrow area of limited legal assistance within the scope by Rule 6.5, a lawyer could rely on that rule’s conflict exemptions to provide representation to the abused spouse.

COMMENT [6]

[6] The prohibition in this Rule is imputed to other lawyers as provided in Rule 1.10, but, under paragraph (d)(2), imputation may be avoided if ANY LAWYER WHO RECEIVED CONFIDENTIAL INFORMATION TOOK REASONABLE STEPS TO AVOID EXPOSURE TO DISQUALIFYING INFORMATION AND all disqualified lawyers are timely screened and written notice is promptly given to the prospective client. See Rule 1.11, Comment (discussing the elements of effective screening, including the timeliness of the implementation of screening measures.) IN ADDITION, IF A PROSPECTIVE CLIENT RECEIVED LIMITED LEGAL ASSISTANCE FROM A LAWYER UNDER THE AUSPICES OF A NON-PROFIT ORGANIZATION UNDER RULE 6.5 BEFORE THE LAWYER DECLINED CONTINUING REPRESENTATION, IMPUTATION TO OTHER LAWYERS WORKING UNDER THE AUSPICES OF A NON-PROFIT ORGANIZATION WOULD BE AVOIDED.

RULE 2.1 ADVISOR:

Comment [5] provides that "[i]n general, a lawyer is not expected to give advice until asked by the client." We are concerned that this could be interpreted to prevent lawyers - and, in particularly, legal aid programs - from undertaking diagnostic interviews or "legal check-ups." As our February testimony indicated, we believe it is essential that a diagnostic interview be undertaken by a lawyer before proceeding to give legal assistance, except for limited legal advice or brief service. As currently drafted, Comment [5] could be interpreted to exclude a lawyer from engaging in preventive lawyering. However, the ABA should support preventive lawyering and diagnostic interviews and not propose rules and commentary that could be interpreted to foreclose such activities.

In addition, the comment should recognize that a client may "implicitly" ask for advice on a legal problem which is not expressly identified by the client and that the duty to render competent service, candid advice and to exercise independent judgment, or to refer the client to someone who is competent to do so, is an important legal activity that should be supported in the rules.

Therefore, we suggest that the first sentence of Comment [5] be rewritten as follows:

In general, a lawyer is not expected to give advice until asked by a client. However, lawyers may conduct diagnostic interviews to determine the scope of a client’s legal problems and provide advice accordingly. Moreover, However, when a lawyer ...

RULE 2.X LAWYER SERVING AS THIRD-PARTY NEUTRAL:

In our June Comments on this proposed rule, we raised the concern that the rule does not address the question of whether a lawyer serving as a mediator or arbitrator has a responsibility to ensure that the parties involved in the mediation or arbitration have a full understanding of the facts and law that underlies the dispute, that all parties are treated fairly during the proceedings and that the outcome is fair to all parties. Instead, the rule addresses only one issue involved in the lawyer’s role. By failing to address the "fairness" issues, the proposed rule could be interpreted to suggest that lawyers have no obligation to ensure that the proceedings are fair. We understand that there are differing views within the bar and among professional mediators about the role of mediators and arbitrators and that detailed standards for mediation and arbitration have been, or are in the process of, being developed by groups within the bar and outside. However, the issue of fairness of the proceedings is particularly important to the clients we represent - low-income clients - because they may need assistance during a mediation or arbitration in order to effectively participate as an equal partner with the adverse party, such as a landlord or merchant. Therefore, even though the Reporter disagrees with our views, we believe it is important for any new ethics rule on third-party neutrals to define the role of mediators and arbitrators and to set out the extent that mediators or arbitrators have a responsibility to make sure that the proceedings are fair. Since this rule does not address these "fairness" issues, we suggest that the Commission develop a rule that does address them or that the Commission drop this rule entirely.

RULE 4.2 COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL:

While we generally agree with this rule, we are concerned that the rule does not have a government agency exception that would permit a lawyer to discuss the subject of a client’s representation with government agency officials when the government agency is represented by an agency lawyer or other government lawyer. Too often, government lawyers have taken the position that this rule bars a legal aid lawyer from communicating with a lower agency employee about a client even when there is no pending administrative or court proceeding. In addition, at least one state bar opinion, Oregon State Bar Formal Opinion No. 1998-152, prohibited a lawyer from communicating with "current employees of a represented state agency if the employees are part of agency management or are persons whose conduct is in issue in the matter."

While we certainly support the explicit reference in Comment [3] to communications by a client exercising a constitutional or other legal right to communicate with a governmental official, we do not believe that the comment, particularly as it has been rewritten in response to other comments, would cover the types of situations faced by legal aid lawyers in dealing with, for example, welfare case workers concerning a denial, reduction or termination of welfare benefits for the client. There have been too many examples where legal aid lawyers have been threatened with disciplinary action because they communicated basic information about a client’s eligibility for benefits, for example, to employees of a government agency.

Thus, we continue to recommend a new comment that would provide something like the following:

[9] This Rule does not prevent a lawyer from communicating with employees of a government agency in order to bring to the employees attention information about the legal rights of a client.

RULE 4.3 DEALING WITH UNREPRESENTED PERSON:

We support the proposal to move the language prohibiting the giving of advice to those whose interests conflict with those of a client from the Comments to the Text of Rule 4.3. We also agree that "in negotiations between lawyers and unrepresented parties, the giving of legal advice (often misleading or overreaching) is not uncommon."

However, based on the fact that NLADA’s member programs represent millions of poor people, hear their stories and observe millions of courthouse interactions each year, we are deeply skeptical that this technical wording change alone will achieve the goal of significantly reducing either the "giving of [this] legal advice (often misleading or overreaching)," or, even more importantly, of ameliorating the powerful force for injustice that this behavior frequently represents.

The victims of such "misleading or overreaching" advice are those who do not have lawyers, often the poor and disadvantaged, whose cases are being processed in high volume, overloaded courts and administrative tribunals in which court personnel or Administrative Law Judges are in no practical position to monitor these matters, or to attempt to keep the scales of justice balanced (even if they feel institutionally permitted to do so). In many of these courts a case going to trial is an almost unheard of event, and as a practical matter, the negotiation is the adjudication, and the "misleading or overreaching" advice is determinative of the outcome. It is therefore particularly necessary, as underlined by the very existence of Rule 4.3, that there be explicit, clear and effective rules that specifically govern the behavior of attorneys in their dealings with unrepresented persons.

In our experience, some attorneys who practice against unrepresented individuals do not understand the scope of the current prohibition or are in any practical way limited by it. In particular, some of them appear to believe that they may engage in persuasive tactics, including the making of suggestions for outcomes that rely on their knowledge of law, of the legal system, and of the tribunal in which an action is or may be pending even though these tactics give unrepresented adversaries the impression those attorneys are making suggestions to the unrepresented adversaries that are in the interests of those adversaries, rather than against those interests.

Since any negotiation (as opposed to an adversarial hearing) is ultimately an appeal to the opponent’s own interests, it is simply inevitable that the unrepresented party will regard statements as to law, legal processes, the application of the facts to law, or indeed any matters related to a legal dispute or matter as representing judgement and advice.

Moreover, in the light of such unrepresented parties’ lack of knowledge and experience, it is inevitable that any such judgement and advice will have great force and a profound effect on the outcome. In these circumstances, it is unrealistic to believe that even a boilerplate recitation of the attorneys legal loyalty to the actual client will prevent such tactics having this powerful effect on the unrepresented adversary.

The current general proposal would continue to leave many good-faith attorneys in a quandary. The duty of loyalty might appear to the clients of those attorneys to require that the attorney use every permissible argument against an unrepresented adversary or potential adversary, notwithstanding the attorney’s personal sense of the injustice of the result, or the possible overreaching effect of their statements of law, process, and the application of fact to law. In such a view, the only requirement would be that such arguments did not include the phrase "I advise", or "I recommend," or "you should." We note, in any event, that such presumably prohibited phrases seem all too common in many high volume contexts in which attorneys appear against unrepresented litigants.

Moreover, the problem is not addressed by the suggestion of the Reporter to leave such an issue to "a case-by-case determination whether the types of statements referred to constitute impermissible legal advice, under the circumstances of the particular case..." More guidance is needed in the Comments to the Rule itself to clarify the scope of the prohibition.

Therefore, we continue to recommend that the Comments make explicit the reach of the general prohibition, by pointing out that the giving of advice is not limited to recommendations of particular actions (by phrases such as I "recommend", "you should", "you would do better to", "it would be a good idea to") but, includes: statements of prediction of outcome, opinions as to the significance of facts, opinions as to the strength of claims arguments or legal or factual claims, evaluations of alternative conduct, statements of law that include the application of particular facts, regardless of whether these are made in the course of negotiations, and recommendations of particular courses of conduct. The statement of the attorney's client's negotiating position does not constitute the giving of legal advice to a person who has an interest in conflict, but any assertion, actual or implied, of special knowledge to obtain the success of or advocate for that outcome does constitute the giving of such advice. This rule is governed by the point of view of an unrepresented party, and the use of boilerplate statements such as "I am not your attorney," or "I am not giving you advice" do not of themselves insulate conduct otherwise in violation of this rule.

Given the depth and pervasiveness of the problem, we are not convinced that the above recommendation alone will be sufficient to remedy the problem. It may be that in the long term, in the light of experience with an amended rule, it becomes clear that additional provisions will be necessary to prevent "misleading and overreaching" activities by attorneys.

RULE 7.3 DIRECT CONTACT WITH PROSPECTIVE CLIENTS:

In our previous comment on this rule, which we support, we proposed an addition to directly address a problem faced by the elderly and brought to our attention by the American Association of Retired Persons. We understand that the Reporter recommended against this proposal because "overreaching by a lawyer in the seminar context can be adequately regulated by the enforcement of Rules 7.1 and 7.3. However, it is because these rules have not directly address the situation faced by the elderly and because it is not clear how they would apply to this situation, that we recommended an addition to the Rule and a new Comment.

Therefore, we again propose that the Commission consider a new section and a new comment along the following lines:

(e) A lawyer shall not solicit professional employment from prospective elderly clients by live educational seminars, conferences and other public gatherings. Notwithstanding this prohibition, a lawyer may speak publicly on legal topics to groups of elderly prospective clients known or assumed to need particular legal services, and may accept employment resulting from such presentations, subject to the following:

  1. The lawyer distributes a written disclosure during such presentations that includes a statement that the presentation is an advertisement for the attorney’s services or those of the attorney’s firm; and a statement that while there is no rule that prohibits attendees from hiring him/her, there is no obligation to do so.
  1. If an attendee meets with the lawyer at any time after the presentation, the lawyer shall include a written disclosure that reiterates that while the attendee is not prohibited from hiring the lawyer, he/she is under no obligation to do so.

(3) If a lawyer organizes a presentation in conjunction with another organization, the disclosure statements required by paragraphs (1) and (2) shall include a disclaimer of any affiliation with or endorsement by such organization.

Comment

[9] Paragraph (e) addresses abuses inherent in seminars directed to the elderly, who are more likely to be victims of fraud and coercion because of the demographics of social and geographic isolation (chronic disease, physical incapacity, lack of information and support that help them make informed decisions). The elderly, as consumers, are particularly vulnerable to high-pressure salesmanship and other, more subtle, coercive tactics. This Rule is not intended to prohibit seminars for the elderly, a hybrid of advertising, in-person solicitation and legal education. Rather, it provides clear guidance to lawyers who plan and conduct them. The rule requires attorneys to employ consumer-protection principles intended to avoid both the appearance and the effects of coercion and overreaching.

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