Standard 5.3 on Establishing a Clear Understanding

Standard 5.2 | Table of Contents | Standard 5.4

Standard

A legal aid organization should establish a clear, mutual, and timely understanding with persons seeking its services regarding the assistance, if any, it will provide.

Commentary

General Considerations

There are several ways in which a legal aid organization might respond to persons who seek help with their legal problems. Many will be accepted as clients of the organization and be given legal representation. Others will not be accepted as clients and will be given some form of assistance, usually legal information or a referral to another source of help. Others will be denied service and referred elsewhere for assistance if that is available in their region. In all cases, it is important that the organization and the person seeking help have a clear, mutual understanding about the assistance the organization offers, if any, whether an attorney-client relationship has been formed (intentionally or inadvertently), and applicable professional conduct rules. It is also critical to establish this understanding in a timely manner.

Establishing a Clear Understanding with Clients

An organization has a distinctly higher level of responsibility to a person who has been accepted as a client than to a person to whom it is offering legal information or referral. The ethical duties that attach to an attorney-client relationship must be met when the individual is accepted as a client, including the responsibility to provide competent and diligent representation to accomplish the client's objective, to preserve the confidentiality of information given by the client, and to meet the strict rules governing conflicts of interest.

Identifying the client. The practitioner should determine who the client is. In some situations, this may not be immediately clear. For example, legal problems affecting an entire family, a marriage, or a group can involve several persons with different interests in the outcome of the matter. To avoid possible conflicts of interest, the organization needs to establish policies for its practitioners to use to determine at the outset whose interest is being represented and who has the authority to decide what action to take. An individual who seeks representation for another person, frequently an elder or person with a disability, needs to have a power of attorney or other explicit authorization to act on behalf of the actual applicant or client.

Issues affecting a child can raise questions related to a possible conflict of interest with a parent who may claim to speak for the child. Other clients may suffer from a mental or other impairment that affects their ability to speak for themselves. The organization should be aware of and comply with the requirements in its jurisdiction regarding representation of clients with diminished capacity. This means that attorneys should, as much as reasonably possible, treat the client as they would any other. Assessing a client's capacity can be complex and multilayered. Attorneys should not make these decisions in isolation, but rather should seek out consultation with supervisors and other professionals.

Representation of groups raises several issues to which the organization should be attentive. Refer to Appendix C for a thorough discussion of these issues. 

Identifying the legal problem. The practitioner should ensure that the legal problem which the practitioner has agreed to handle is clearly stated and should be aware when a retainer agreement or letter of engagement is required under the rules of its jurisdiction. Many clients have several interrelated legal problems, and the organization may have agreed to handle only one. Conversely, some organizations encourage practitioners to take a holistic approach to the problems that their clients encounter and may agree to assist the client with a range of related issues in addition to the specific problem for which the individual initially sought assistance. In either circumstance, it is important that the client and practitioner clearly identify the issues for which representation will be provided. This clear identification can be done within a retainer agreement, letter to the client, or through other documented methods. Alternative approaches may be considered where there are issues of domestic violence or other situations where traditional written materials may put the client at risk.

Identifying any limitations to the scope of the representation. At the outset of representation, the practitioner needs to make certain that the client understands any limitations to the scope of the representation that will be provided. A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, and the client provides informed consent. Assistance offered by a legal aid organization often involves limited-scope representation in the form of legal advice, brief service, or assistance to unrepresented litigants. Cases that are accepted for litigation generally are not automatically handled on appeal, and this limitation should be clearly communicated to the client. See Standard 4.2 for a through discussion on limited-scope representation.

Retainers and other written agreements. In most cases, the agreement setting for the terms and scope of the representation should be reduced to writing. The writing may be in the form of a retainer agreement, signed by the client, which sets out the basic understandings regarding the representation. Organizations should ensure all electronically signed retainers comply with current requirements concerning advice on how to rescind. The organization may also want to send the client an engagement letter that sets out the specific commitments and expectations, when, for instance, the scope of the representation being offered is limited or when the organization only agrees to handle one or some of multiple legal problems. In some circumstances, the organization may use both a retainer agreement and an engagement letter. In ongoing representation, the organization should send follow-up correspondence confirming any changes that have been agreed to in the undertaking or scope.

If the practitioner is offering only telephone advice or other limited, brief interaction with the client that is not face-to-face, it may be impractical to obtain a signed retainer agreement. In such cases, the organization should orally state significant limitations on the scope of the representation and, to the extent necessary, should follow-up in writing sent to the client memorializing the advice given. Organizations may benefit from knowledge-based systems or document-assembly mechanisms within case management systems to more efficiently provide clients these written summaries of advice given.

Clients' rights and responsibilities. Clients should be informed of their rights and responsibilities as well as the responsibilities of the organization on their behalf. The client should understand that the organization will protect the confidentiality of the information the client provides consistent with its practitioner's ethical obligations. 

• Both client and organization should understand the client's right to be kept informed of the progress of the matter and to participate in key decisions regarding its conduct.
• Clients should be encouraged to initiate contacts with the practitioner and should receive direction from the organization on how to do so.
• Clients should recognize the importance of keeping the practitioner informed of changes in circumstances affecting the case and advising the organization of their whereabouts so that they can be contacted when necessary. If possible, automated reminders and other technology-based support might be offered to help the client remain on track and comply with their obligations. 
• Clients should understand their responsibility to assist in preparing the case by locating witnesses, documents, or physical evidence, by cooperating with discovery requests, and by keeping appropriate records, when necessary. If clients do not have the funds to obtain records, or copies of files or the like, the organization will accommodate each client accordingly and in conformity with the jurisdiction's ethical rules. Digital literacy should also be factored in when the client is asked to gather electronic records or use other technology tools to comply with their expected collaboration. 
• If the practitioner who will undertake the representation is a volunteer, Judicare, or contract attorney, the relationship among the organization, the outside practitioner and the client should be made clear.
• The client and the organization should agree who is to pay costs that may arise in the course of the case. 
• Clients should understand that the organization retains attorneys' fees in the event they are obtained from an adversary.
• The practitioner should explain to clients what they should do in the event of dissatisfaction with the handling of their legal problems.
• If the organization is required under federal law or grant terms to provide information to auditors or those funders, client should be informed of what information may be shared and how and that client's informed consent will be requested.
• Practitioners or staff should inform the client of any client grievance procedure in relation to the various grievance options, if any, that may be available and ensure that the client understands the process and implications, including those related to the giving of confidential information in the context of the grievance proceeding.

Establishing a Clear Understanding with Persons Who Are Not Clients 

Persons who receive assistance. There are circumstances when an organization may not intend to enter an attorney-client relationship and seeks to provide only legal information and general guidance to the applicant. Such assistance may be offered in several ways. The organization may offer a brochure or other writing broadly explaining the person's rights and responsibilities. It may refer the individual to a community legal education presentation or provide general information in a clinic designed to help self-represented litigants. It might offer general guidance online or provide self-help tools to prepare forms and other tasks. The organization must communicate clearly to applicants, who will be given only legal information or a referral, that it is not accepting them as a client and has not entered into an attorney-client relationship with them. Absent clear communication to the contrary, it is possible that an attorney-client relationship may be inferred from the fact that the applicant sought representation and the organization responded with some form of assistance. The organization should clearly indicate to the individuals being assisted that it is not assuming responsibility for the person's legal problem, and that the individual may have to take steps, including seeking other counsel or self-representation, in order to protect important rights.