UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 96-15
A Legal Services Office is organized as a pure judicare program. The Program contains a panel of attorneys which accepts cases from the Program. There are no attorneys working directly for the Program, except for one staff attorney who handles only housing and public benefit cases. The Program has paralegals who interview potential clients. Financially eligible clients with cases within the stated priorities of the Program are referred to a private attorney. The attorneys do not have access to files of the Legal Services Program, other than those files for which the attorney is responsible. The Program interviews a Husband who wants a divorce, and refers the Husband to a panel attorney. The program separately interviews the Wife, and refers her to a different panel attorney. The two attorneys do not have any professional relationship. Neither of the attorneys would have a conflict of interest if the clients had come to the attorneys directly.
Questions:
1. Is there a conflict of interest because the Husband and Wife were interviewed by the same Legal Services Program?
2. Does the mere existence of a Legal Services Program staff attorney who handles only housing and public benefit cases create a conflict of interest?
Summary:
1. No, there is no conflict of interest when a Legal Services Program interviews both a Husband and Wife separately regarding a divorce, and refers each client to different panel attorneys which have no professional relationship, so long as there is no chance that either attorney has access to the files regarding the opposition client through the Legal Services Program.
2. No, the existence of a Legal Services Program staff attorney who is not handling divorce cases, does not, by itself, create a conflict of interest for the Legal Services Program referral service regarding a divorce matter. However the staff attorney should be kept from the divorce clients' files and information, and should in no way be a source of client confidences for any of the attorneys on the Panel.
Opinion:
The facts in this case present a Legal Services Office which has set up a Legal Services Referral Program to refer cases to a panel of attorneys. This is basically a copy of the classic attorney referral service, only the Legal Services Office does not operate this service for profit. So long as the attorneys on the panel do not have access to the Legal Services Program files on clients other than their own, there is no conflict of interest by the Program referring Husband and Wife in a divorce matter to two separate panel attorneys with no professional relationship. However, "if there is a reasonable probability that confidences were disclosed which could be used against the [other] client" then this referral would cause a conflict on interest. Thomas v. Municipal Court of Antelope Valley Judicial District of California, 878 F.2d 285, 288 (CA 9, 1988).
"Arizona Ethics Opinion 91-24 (1991) stated that a legal services intake staff could refer clients with interests adverse to legal services clients to an affiliated pro bono panel if there was no lawyer-client relationship established at the intake stage ... and the legal services organization and affiliated pro bono panel were not considered to be `one firm' under Model Rule 1.10." Geraghty, Peter, "Ethics Corner," PBI Exchange, February 1995, (ABA Center for Pro Bono). If the matters are substantially related the information received at the interview stage must be properly safeguarded and confidentiality not breached.
The Arizona Opinion further stated, "If the intake worker advises the client that (1) the intake worker is not acting as his attorney, (2) cannot give legal advice, and (3) the information is merely being taken to determine whether the client qualifies for [Pro Bono] legal services... there is a strong likelihood that the `subjective belief' of the applicant will be that there is no attorney-client relationship." Arizona Ethics Opinion 91-24 (1991).
Most importantly, it is imperative that the Legal Services Program ensure that safeguards are in place to ensure the confidentiality of the information received at the intake stage, and to ensure that neither panel attorney receives any information regarding the adverse party from the Legal Services Office or its files. "Further, the [Pro Bono Legal Services Program] should take steps to prevent dissemination of the contents of the completed intake forms to any of the [Panel] attorneys." Id.