The ABA’s Standing Committee on Lawyer Referral Services is co-sponsoring a resolution to urge the protection of the hundreds of thousands of communications that occur every day, across jurisdictions nationwide, between prospective clients and LRS intake counselors. Similar to the confidential privilege that currently exists for communications between attorneys and clients, the resolution calls for state legislatures and courts (including federal courts) to adopt rules that establish a privilege for confidential communications between a client and a lawyer referral service. The resolution is meant to ensure that a client who consults a lawyer referral service for the purpose of retaining a lawyer or obtaining legal advice from a lawyer “may refuse to disclose, or prevent lawyer referral service staff from disclosing, the substance of that conversation.”
The following is a Q & A with ABA Standing Committee Member Stephen Steinberg about the background of this resolution, now pending before the ABA’s House of Delegates and scheduled to be voted upon at the ABA's Mid-Year meeting in February 2016. Stephen was a co-author of the California client-LRS privilege that took effect in 2013 and was deeply involved in bringing the ABA’s resolution forward:
Q: It is crucial that prospective clients feel comfortable sharing as much information as possible with a LRS in order to facilitate a referral to the best possible attorney (or agency) for their particular legal issue. Why else might a client-LRS privilege be important?
A: Some LRSs have attorneys who speak with prospective clients, but the overwhelming majority of LRSs operate with non-attorney intake staff. The attorney-client privilege, therefore—arguably—would not apply. Prospective clients sometimes ask LRSs whether their communications are privileged, and in every state but California—where we passed such a privilege into law in 2013—the answer is “probably not.”
Q: Why propose this resolution when we already have Rule XIV of the ABA’s Model Supreme Court Rules Governing Lawyer Referral & Information Service, which states that “disclosure of information to a lawyer referral service for the purpose of seeking legal assistance shall be deemed a privileged lawyer-client communication”?
A: There are two main reasons. First, as far as we know, the existing rule was not adopted in any jurisdiction in the 20+ years since it was written, so clearly there is a need for more action if we want this privilege to be recognized by legislatures and courts. Second, we think the resolution offers more clarity in that it urges creation of a new privilege, so there can be no suggestion that LRSs are standing in the shoes of a lawyer or providing legal services themselves. It also offers more precision with respect to who the privilege is between. For the attorney client privilege, “lawyer” is usually defined as a person authorized to practice law, and LRS intake staff members are not practicing law. Should states act upon this resolution to create a client-LRS privilege like California did, it would enable lawyer referral services to reassure their prospective clients of the privilege and confidentiality of their communications, which is often needed to make the right referral. It would also eliminate any risk that the LRS could be subpoenaed for its intake information by an opposing counsel, which has happened at least a couple times.
Q: Nowadays with the Internet and social media, it seems that the public is less concerned with privacy. Do you think the public understands why this privilege might be important?
A: For the reasons you just outlined, this privilege is even more important today than ever. While some clients might ask about confidentiality, others might assume it is there, and others haven’t given it any thought. For this reason, the client-LRS privilege provides the legal consumer protection for their communications, even if they are unaware that they should care.