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Bar rule changes ease pro bono participation

Assistant Ethics Counsel Regular News

Lawyers who volunteer or work for programs that provide short-term limited representation services, such as legal hotlines, advice-only clinics, or pro se counseling programs, can now breathe a little easier thanks to the Florida Supreme Court’s October 19 order adopting new Rule 4-6.6 and corresponding amendments to Rule 4-1.2 of the Rules Regulating The Florida Bar.

Prior to the new rules, lawyers who provided these services through nonprofit programs, courts, government agencies, bar associations, or law schools took some risk because, while the fleeting nature and high volume of the services made it impractical and sometimes impossible to conduct proper conflict of interest checks, the lawyers were still required to comply with the same rules applicable to any other representation. That meant that lawyers trying to do good could possibly subject themselves to ethics violations and disqualify themselves from subsequent work if they inadvertently gave legal advice to an opposing party while volunteering at one of these programs.

The new rules alleviate some of those worries by easing the application of the conflict of interest rules in these situations.

New Rule 4-6.6 applies to lawyers who provide short-term limited legal services through a program sponsored by a nonprofit organization, court, government agency, bar association, or ABA-accredited law school. Although attorney-client relationships are still established through these programs, neither the lawyer nor client expect the relationship to last beyond that short-term representation.

Under the rule, a lawyer participating in these programs will only be subject to Rules 4-1.7 and 4-1.9(a), conflict of interest rules regarding current and former clients, if the lawyer knows that the representation involves a conflict of interest.

Likewise, Rule 4-1.10, the rule regarding imputation of conflicts of interest, will apply to disqualify a lawyer from providing the short-term limited representation only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by Rules 4-1.7 or 4-1.9(a).

Further, a lawyer’s participation in a program under Rule 4-6.6 will not preclude the lawyer’s firm from representing a client adverse to a client represented under that program. Also, any personal conflict that a lawyer might have from participation in the program will not be imputed to other members of the lawyer’s firm.

The rule applies only when the representation of the clients under the program is short-term and limited. Ongoing representation of a client will make Rules 4-1.7, 4-1.9(a), and 4-1.10 applicable.

Prior to the amendment, Rule 4-1.2 required that a lawyer wanting to provide limited representation could only do so if the limitation was reasonable under the circumstances, the lawyer and client agreed to the limitation, and the client gave informed consent in writing. Under the amendment, if the services are being provided through a short-term legal services program, as in accordance with Rule 4-6.6, the consent is no longer required to be in writing. All other requirements of the rule remain in place. Limited representation under other circumstances retain the written requirement.

The new rules will become effective on November 20, 2017.

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