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December 15, 2014 Dialogue

LRIS Ethics Q&A with Lish Whitson

By George Wolff

Last month, Ronald H. Abernethy (Napa County Public Defender, Napa, CA), a former Chair of the ABA Standing Committee on Lawyer Referral and Information Service (SCLRIS) weighed in on The New Lawyer Referral Service–Client Privilege in California. This month, Lish Whitson (Lish Whitson PLLC, Seattle, WA) — another one of the lawyer referral community's beloved Ethics Gurus and another former Chair of the ABA SCLRIS — addresses a number of issues to consider in 2014, perhaps with a local LRS committee near you...

Wolff: Can an LRIS be liable for providing referral information to a caller who is driving? For those who missed it, a recent New Jersey appellate court held that "when a texter knows or has special reason to know that the intended recipient is driving and is likely to read the text message while driving, the texter has a duty to users of the public roads to refrain from sending the driver a text at that time." The opinion was summarized on the ABA's daily news website.

While the case addressed one person sending a text to another, it might make an LRS director wonder: What liability could the LRS potentially face if it provides information to a caller who is driving and may even indicate that s/he is writing information down? What if the LRS sends an attorney's contact information via text message — would it face liability? What is the best policy to follow — via recorded message and/or staff training — to limit any such potential liability?

Whitson: Neither lack of intent nor lack of knowledge may be an excuse for allegedly contributing to a motor vehicle accident. When a person calls in, the person answering the phone should routinely ask the caller if they are driving a motor vehicle at that moment. If the answer is yes, the operator should thank them for calling, ask them to please call back when they are no longer driving and promptly hang up the phone. The LRS might also consider changing its on–hold or preamble message to state the service's policy, hopefully convincing drivers to hang up before they even reach LRS call center personnel. No LRS wants to be a case of the first impression and, statistically, driver–callers are a common occurrence, which might even increase over time.

Wolff: Last month, Ron Abernathy wrote a splendid article about the recent privilege extended to lawyer referral services in California. For the rest of the country where there is no such privilege, what guidance would you provide? For example, how much information should LRS intake specialists take down and retain?

Whitson: All lawyer referral services should limit the amount of information entered into their databases. They should only provide perfunctory notes to attorneys. If there are special circumstances that require that the LRS provide additional information to the attorney, the LRS director or his or her designee might call the attorney to explain the situation. However, perhaps the best course of action is to just leave it to the panelist attorneys to unearth facts during the initial consultation.

Wolff: Modest means applications have some of the same issues as other referrals, but often even more information is sought by the service before making a referral. What are the best practices that lawyer referral services should follow with respect to modest means applications? What policy language might be included on the application itself? What should the lawyer referral service document retention policy be with respect to Modest Means applications, if not all referrals? How can a lawyer referral service protect itself from facing a subpoena seeking to discover information disclosed on the application? What protections, if any, already exist?

Whitson: After intake and referral, there is no reason to retain personal information about the caller other than contact information. Have written policies that make record destruction a routine practice and get rid of it immediately. You might consider designing an application that separates out the contact information from the applicant's statements of facts and his/her financial information.

Wolff: Modest means attorneys (as well as regular panel attorneys) may sometimes receive an opposing parties' application if, for example, a potential client calls back and receives a few referrals over a few days. What policies should a lawyer referral service have in place to ensure that it is doing all it can to alert attorneys to potential conflicts of interest? Should the lawyer referral service only send out applications upon demand? Should the lawyer referral services wait some period of time in order for both the attorney and the potential client to discover that a conflict exists? Should the lawyer referral service not disclose the application to the attorney at all?

Whitson: If the non–retention policy I discussed before is implemented, it should not matter very much because the information in the retained records would be minimal. The responsibility for conflict checks rests with the individual panel member, not the service. Once a referral has been made, both the financial information and any other information obtained by the service from the client can be re–obtained by the panel member if needed. So, again, there is no need for the referral service to retain any of that information or pass it on to the panel member. However, there must be a written policy for the systematic destruction of information that is no longer needed by the service. The best policy would be to take sensitive information down on a piece of paper and shred it after the referral is made. If it is deleted off a computer program, it is probably still somewhere on the hard drive.

Wolff: Speaking of modest issue was raised during the "Examining Critical Ethical Issues" session at the October 2013 Workshop about the interplay between attorneys' modest means retainer agreements and court–ordered payments of opposing parties' attorneys' fees. Could you explain that situation and what suggestions an LRS might offer to its modest means panelists?

Whitson: Yes. If an applicant qualifies under a program's modest means criteria, the attorney will agree to accept case at a reduced hourly rate. When the case is over, a court may order the opposing party to pay the attorneys' fees of the modest means client. However, the court should order the payment of fees at the modest means attorney's normal hourly rate — the reduced rate is for the benefit of the modest means client, not for the benefit of the opposing party. To reduce confusion for the court and ensure that the attorney is paid the appropriate rate, an LRS could suggest to its modest means panelists that the retainer agreements include language to that effect — that the reduced rate is for the benefit of the client only.

Similarly, it might also help maintain the morale of modest means panelists if they are not locked into a reduced hourly rate when, during the course of the representation, their client suddenly comes into enough money to be considered a regular fee paying client. The LRS might suggest that its modest means panelists include language to the effect of: "My [the modest means attorney's] regular rate is X; however, so long as Client remains qualified and eligible under the modest means program's rules and criteria, my hourly rate to [this modest means client] shall be Y." That way, if the client does come into a enough money to no longer qualify as a modest means client, the attorney can discuss the situation with the client and s/he will have the ability, if s/he wishes, to raise the rate up to his/her regular rate. However, the LRS should consider suggesting to attorneys that they seek confirmation from the program as to whether or not the client would still qualify for a modest means referral. That might take the attorney out of a conflict with the client. S/he can just tell the client that s/he is just following the guidelines outlined by the service at the time the referral was made.

Wolff: A lot of attorneys are turning to social media in an attempt to grab potential clients' attention and direct them to the attorneys' websites. To what extent does the LRIS have to monitor what their attorneys put on their websites? What if there is a clear misrepresentation by an attorney — "I've never lost a case" — and it comes to the attention of the LRS? What should the LRS director do?

Whitson: If an attorney states any false, misleading or unverifiable statements in their marketing, it is a violation of their state's Rules of Professional Conduct. This might be a situation that an LRS director should bring to the LRS oversight committee or board. In advance of such a situation, however, specific to LRS referrals, an LRS might consider adding a clause to its policies and procedures that the LRS has the right to review, in advance, any mention of the LRS or any LRS–referred matter on a panelist's website, social media postings, advertising, and marketing materials.

It would be a good practice for the LRS to ensure that attorneys' websites list the same categories of law for which the attorney is registered with the LRS. However, it would probably be impractical, if not impossible, for an LRS to try to continuously monitor all of its panelists' websites.

Wolff: There is a very active list serve in the ABA legal referral community for managers and directors of lawyer referral services to bounce ideas around, assist each other with policy and procedural questions, discuss knotty situations with particular panel members, etc. What ethical or other concerns should managers and directors keep in mind when they are posting? What best practices should they follow?

Whitson: No names should ever be mentioned and, if facts are necessary to explain the situation, the facts should be described in as generic a fashion as possible so they are not a clear description of a specific individual panel member. If the situation is discussed in this fashion, there should not be any fallout.

For example, assume Mr. Joe Doe is a very productive panel member who has generated thousands of dollars for the LRS over the past 10 years. However, you have now heard from three female clients, referred by your LRS to Mr. Doe, that he has tried to kiss each of them during client conferences. You could write to the list serve: "A male attorney, who is otherwise a valued panel member, has been accused by female clients of sexual harassment. What should we do?"

Wolff: What are some ethical and/or legal issues that you've come across that you think might apply to all lawyer referral services?

Whitson: As I have traveled around the country as a PAR consultant, one continuing issue I see is making sure the quality of service by each LRS and its panel members is what is being advertised, i.e. superior to finding a lawyer in the yellow pages or from TV advertisements. However, to achieve this, each service must keep track of its referrals and constantly ask the clients and the panel members: How can we do a better job? This may not seem like a legal or an ethical issue, but it is "truth in advertising." With our reputations potentially at stake with each referral, we owe it to everyone involved to provide a consistently superior service.

Each service should ask: Do we have the support of the bar to achieve the right number and quality of staff; the right equipment; the right number and quality of panel members; the right outreach to the local community; the right follow up with clients and panel members; and the right policies and procedures to get the job done properly? Until every LRS can answer, "Yes," to each of these concerns, we have work to do.

Disclaimer: The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association or the Standing Committee on Lawyer Referral and Information Service unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.

George Wolff

Executive Director, New York City Bar Association Lawyer Referral Service

George D. Wolff is Executive Director of the New York City Bar Association Legal Referral Service.