The ABA’s Resolution for Client-LRS Privilege Gains Sponsorship

This summer at the ABA’s annual meeting in August, the ABA Standing Committee on Lawyer Referral and Information Service will bring forward a resolution to protect the hundreds of thousands of conversations that take place over the telephone and web portals of LRS programs across the nation. Similar to the confidentiality privilege that exists for communications between attorneys and clients, the resolution calls for state legislatures and courts—including federal courts—to enact a rule that establishes a privilege for confidential communication between a client and a lawyer referral service to ensure protection for those who speak about their legal situation for the purpose of obtaining legal advice and assistance. Any potential client should be assured and free to discuss the elements of their legal situation in confidence. The reason communications between an attorney and client are privileged is so the client can be candid and truthful. Such a purpose is no different in conversations with a lawyer referral service, and expectations of privacy in the legal context operate for the legal consumer even if not articulated. It is entirely foreseeable and logical that a potential client would carry that expectation of confidentiality with them when discussing their legal situation, and understand it to mean that what they say won’t be used against them. The expectation that a conversation is not only confidential but also protected has been seeded by popular culture, which instructs through legal thrillers and legal television dramas that information with legal consequences is to be held in confidence.

The worry, of course, is that because a privilege does not specifically exist to protect legal conversations with a lawyer referral service, there is no enforcement of a breach under the law. Were a client to learn this fact, he or she may refuse to disclose, or prevent lawyer referral service staff from disclosing, the nature of his or her legal situation. This can handicap a referral service from providing the right lawyer who is appropriately-experienced to address the client’s needs and, moreover, prevent the level of understanding needed to attract the lawyer’s interest in the first place to accept the referral.

California led the charge, enacting such a privilege three years ago under Senate Bill 267. Based upon the privilege that exists for attorneys and clients, Senate Bill 267 was written to protect the prospective clients who disclose confidential information to certified LRS programs in an effort to find a lawyer. Other states are in the process of providing similar protections to clients of lawyer referral programs.

The LRS Standing Committee was fortunate to have committee member Stephen Steinberg as the drafter of this recommendation. Stephen was the principal drafter of the California legislation and is a former president of the Contra Costa Bar Association. David Keyko (Bar Association of the City of New York member) and Larson Frisby (associate director of the ABA Governmental Affairs Office) have worked tirelessly with Stephen in the drafting of the resolution and report. Please join me in thanking them for their tireless efforts on behalf of the Lawyer Referral Community.

Several bar associations have agreed to co-sponsor this resolution, including the Association of the Bar of the City of New York, Austin Bar Association, Cincinnati Bar Association, Brooklyn Bar Association, the Oregon Bar Association, and The Bar Association of San Francisco. The LRS Standing Committee hopes that this resolution will be adopted, given that such a privilege is more important than ever in the burgeoning era of social media, where public standards for privacy are fluid, and where a true understanding of whether something should be private and confidential needs guidance. Protecting client conversations about legal troubles, even if the client is unaware that they should care, is where the ABA needs to lead next. If your bar association is not listed as a co-sponsor, please consider joining the growing list of co-sponsors. In addition to bar associations, the following ABA entities have agreed to co-sponsor this resolution: Section of Civil Rights and Social Justice, Standing Committee on Disaster Response and Preparedness, Standing Committee on Group and Prepaid Legal Services, and Law Practice Division.

To co-sponsor this resolution, please email Jane Nosbich, ABA Staff Counsel for the Standing Committee on Lawyer Referral and Information Service.