The Florida Bar
OPINION 92-1A legal services organization may not represent opposing parties in a case. If certain guidelines are observed, however, the organization may assist the opposing parties by assigning each to a private pro bono attorney or by representing one party while assigning the other to a private pro bono attorney.
November 1, 1992
November 1, 1992
RPC: Preamble, 4-1.6
Opinions: 66-23[since withdrawn], 67-37; Philadelphia 80-41
Cases: National Western Life Ins. Co. v. Walters, 216 So.2d 485 (Fla. 3d DCA 1968); Amendments to Rules Regulating The Florida Bar-1-3.1(a) and Rules of Judicial Administration-2.065 (Legal Aid), 598 So.2d 41 (Fla. 1992)
The inquiring attorney is a managing attorney with a Legal Aid Society in Florida. She states:
Our Society provides legal assistance to indigent individuals in the areas of family law, landlord/tenant, and miscellaneous matters. An individual needing our services meets with a lay interviewer in our office and together they complete an application stating the applicant's finances and the specifics of his or her legal problem.
If the individual qualifies for our program, he or she will be assigned to one of our staff attorneys who are housed in the Society's office or to a private pro bono attorney who maintains his or her office separate from the Society.
On occasion two opposing parties, such as a husband and wife, apply and qualify for our services.
The inquirer further states that the private pro bono attorneys have no access to the Society's files and, likewise, the Society has no access to the files of the pro bono attorneys. Presumably the file of a pro bono attorney remains in that attorney's private office with only a brief closing statement forwarded to the Society for its records.
Individuals must meet specified criteria in order to qualify for representation from the Society or a private pro bono attorney. Consequently, an intake procedure is necessary to establish at the outset whether an individual is eligible for representation. The Society's present guidelines do not prohibit the Society's director from assigning the opponent of an existing Society client to a private pro bono attorney.
The inquiring attorney presents two questions:
1. May the Society assist opposing parties by assigning each to a separate pro bono attorney (with the Society representing neither party)?; and
2. May the Society assist opposing parties by representing one and assigning the other to a pro bono attorney?
The ethical issues presented by these questions revolve around attorney-client confidentiality. Rule 4-1.6, Rules Regulating The Florida Bar, defines as confidential all "information relating to representation of a client." The ethical duty of confidentiality can attach in an initial consultation, as the Preamble to the Rules of Professional Conduct recognizes:
Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under rule 4-1.6, which may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
See Opinion 66-23. See also National Western Life Ins. Co. v. Walters, 216 So.2d 485 (Fla. 3d DCA 1968). Therefore, intake information received by the Society in an initial interview triggers the duty of confidentiality.
With respect to the first question presented, the committee concludes that, subject to the caveats discussed below, it is ethically permissible for the Society to refer two opposing parties, who have each undergone an intake interview with the Society, to two separate private pro bono attorneys. The committee's conclusion is similar to that reached in Philadelphia Bar Association Opinion 80-41.
The parties' pro bono attorneys must have no access to the Society's intake information.
Additionally, the retainer agreement presented to a potential client at the initial intake stage should clearly state that, if the client meets the eligibility requirements, the Society, at its discretion and without stating a reason, may choose to handle the client's matter itself or may refer the matter to a private pro bono attorney. The retainer agreement should also state that such a referral might occur at any point in the representation. These provisions will help alleviate the problem that could occur in a domestic matter where, for example, the Society provides legal advice or services to a wife and then sometime later the husband comes in seeking legal services. The Society could avoid conflict and confidentiality problems by referring both of the opposing parties to private pro bono attorneys pursuant to the provisions in the retainer agreement. The retainer agreement would permit the Society to make the referral without informing the husband that the wife has sought advice from the Society-which could be significant in a situation involving spouse abuse.
The second question presented is more difficult, particularly in view of the fact that the supply of pro bono attorneys often falls short of the demand. The committee concludes that, if certain conditions are satisfied, it will be ethically permissible for the Society to represent one party even though it assigns the opposing party to a pro bono attorney following an initial intake interview.
In Opinion 67-37 this committee stated that a legal aid organization cannot ethically represent both opposing parties. Opinion 67-37, however, did not address the question facing us today. As mentioned above, the primary ethical issue is one of confidentiality. Whether the Society ethically may represent a client while assigning the client's opponent to a pro bono attorney after performing an initial intake interview will depend on whether the Society learned confidential information from the opponent as a result of the interview. As noted, under Rule 4-1.6 all "information relating to representation" is considered confidential. Therefore, it must be presumed that confidential information is obtained by the Society in the intake interview.
A solution to this dilemma is to have each prospective client provide an informed consent acknowledging that certain limited information given in the intake interview will not be treated as confidential for purposes of enabling the Society to screen for conflicts or to make referrals. This consent must be obtained prior to the intake interview. The information that the prospective client is asked to give will not be treated as confidential and may include only that information necessary to determine eligibility and to check for conflicts. Only after the conflicts check reveals no conflicts and eligibility is determined should the individual be asked for detailed information concerning himself or herself and the case. In addition, the retainer agreement should provide that, if the client meets the eligibility requirements, the Society, at its discretion and without stating a reason, may choose to handle the client's matter itself or may refer the matter to a private pro bono attorney.
The committee recognizes that there could be a question of whether this consent on the part of prospective client would be truly voluntary. One could argue that asking for the consent would involve overreaching because indigent clients, who cannot afford to hire private counsel, are likely to provide consent even when doing so is not in their best interests because they may perceive themselves as being in a "take it or leave it" situation. The committee, while recognizing this argument, nevertheless rejects it. The Supreme Court of Florida has strongly endorsed the public policy of making representation available to those in need of legal services. See Amendments to Rules Regulating The Florida Bar-1-3.1(a) and Rules of Judicial Administration-2.065 (Legal Aid), 598 So.2d 41 (Fla. 1992). On balance, the limited waiver sought from the client is a reasonable price to pay to enable the Society to make its services more widely available to those who need them.
In summary, the committee concludes: (1) although the Society may not represent opposing parties, subject to certain caveats the Society may assist opposing parties by assigning each to a separate pro bono attorney; and (2) if a very limited waiver of confidentiality is obtained from all clients prior to the initial intake interview, the Society may represent one party and assign the opposing party to a pro bono attorney.
It should be emphasized that the committee's answer to the second question describes one permissible method by which the Society ethically may represent one party while assigning the opposing party to a pro bono attorney. There could be other methods that likewise eliminate the ethical problems presented in such a situation; this opinion is not to be construed as outlining the only permissible method of operation.