Ethics Opinon 1983-6

I
QUESTION PRESENTED

The San Diego County Volunteer Lawyer Program has requested an opinion from the Ethics Committee on the following questions: Attorney A is referred a case under the auspices of the Volunteer Lawyer Program. After working on the case for a period of time on a volunteer basis, Attorney A learns that the client in fact has funds sufficient to pay for legal services.

1. May Attorney A begin billing the client for legal services?

2. May Attorney A bill the client for past legal services rendered?

II
SUMMARY

Attorney A may not under any circumstances bill his client for past legal services which were rendered under the auspices of the San Diego County Volunteer Lawyer Program (hereinafter "the Program"). Attorney A should promptly notify the client that he is not eligible for the Program, and should also advise program officials. Attorney A should further advise his client that he has the right to retain any attorney of his choice, and may not solicit the client's business. However, if specifically requested by the client to continue with the representation on a paying basis, and if an arms length agreement as to future fees is reached, Attorney A may enter a retainer agreement with the client after the client withdraws from the Program. Attorney A may bill only for services rendered after the client withdrew from the Program.

III
DISCUSSION

In March 1983, the San Diego County Bar Association and other sponsoring organizations created the San Diego County Volunteer Lawyer Program. The Program is a California non-profit corporation designed to provide free legal services to indigent clients. Well over 300 San Diego attorneys have volunteered to participate in this worthy and necessary program. The Program itself is not the attorney of record for the indigent client; the volunteer personally serves as attorney of record.

A. PARTICIPATION IN THE PROGRAM

Both the California State Bar Act and the ABA Code of Professional Responsibility strongly encourage participation in volunteer lawyer programs to provide legal services to the poor. See State Bar Act Rule 6210; California Rules of Professional Conduct 2-102. Indeed, ABA Code Ethical Consideration 2-26 aptly notes:

"Historically the need for legal services for those unable to pay reasonable fees has been met in part by lawyers who have donated their services and accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find the time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of the individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid officers, lawyer referral services, and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services."

When an attorney knowingly volunteers for the San Diego County Volunteer Lawyer Program, he is not only meeting the ethical responsibilities set forth by both the ABA Code and the State Bar Act, but he is making a meaningful contribution to society and to the interest of society in an effective and fair judicial system. The lawyer who devotes his time to this worthy endeavor is aware upon acceptance of a case that he will not be paid for his services. He should not expect to be paid, he should not knowingly seek assets from the client, he should not ask the client for payment, and he should not make any effort whatever to turn his volunteer work into a profit-making endeavor.

B. CONTINUED REPRESENTATION OF PROGRAM CLIENTS WHO POSSESS ASSETS

It has been reported that occasionally during the operation of the San Diego County Volunteer Lawyer Program, an attorney will discover that his client in fact has undisclosed assets. In such cases, the client may not be eligible for participation in the Program. Under these circumstances, the volunteer attorney must give appropriate notice to Program officials that his client should be withdrawn from the roster of Program clients. The attorney must also advise the client that he is not eligible for the program because of his assets. The client should be specifically advised that he has the right to retain an attorney of his choice. In connection with advising the client of this, the volunteer attorney may not solicit the client's business in violation of California Rules of Professional Conduct, Rule 2-101.

On the other hand, in some situations, because the volunteer attorney is already familiar with the case, the client might save money on legal services by Attorney A's continued representation. Further, matters might be pending in court requiring judicial approval before withdrawal. See California Rules of Professional Conduct, Rule 2-111. Indeed, in some cases, withdrawal at a key stage of a proceeding might cause hardship or prejudice to the client. Certainly the volunteer may not withdraw in a manner which would prejudice the client or violate court rules. Therefore, if the client is fully advised of his right to select and retain another attorney of his choice, and if the client specifically asks the volunteer attorney to continue the representation on a paying basis, it would not be unethical for the attorney to accept a retainer from the client. Such a retainer agreement may be entered (sic) only after the client is formally withdrawn from the Program.

On the other hand, if the client requests continued representation but refuses to enter a retainer agreement, the volunteer attorney must continue to provide free legal representation until such time as an appropriate, non-prejudicial or judicially approved withdrawal is effected, pursuant to California Rules of Professional Conduct, 2-111(B) or (C) (relating to mandatory and permissive withdrawal). C.f. California State Bar Formal Opinion 1981-64 (relating to legal services organizations losing funding).

C. NEGOTIATION OF THE FEE

In connection with negotiating a proper legal fee, the attorney may not charge the client for past legal services which he rendered under the auspices of the Program. Such payment would not only violate the client's right to a reasonable advance agreement as to legal fees, but would also create the appearance of impropriety with respect to the Program. We reach this conclusion for two reasons.

First, it is settled that agreements pertaining to legal fees must be reached promptly after the attorney/client relationship is formed, and not after services are performed. ABA Code Ethical Consideration 2-19 provides: "As soon as feasible after a lawyer has been employed, it is desirable that he reach a clear agreement with his client as to the basis of the fees to be paid." It is obviously improper for the lawyer to unilaterally insist on a fundamental change in compensation for his representation after services are performed. In the case of the volunteer attorney, whether justified or not, the original services were performed on a volunteer basis, and no fee agreement existed. This may not be changed after the fact.

Second, pursuant to California Rules of Professional Conduct 2-102, participation in a bona fide Volunteer Legal Services Organization does not constitute "unlawful solicitation" solely because the legal services are provided on a free basis. See also California State Bar Formal Opinion 1977-2. If the San Diego County Volunteer Lawyer Program were to allow its attorneys to search for client assets and to seek subsequent payment, the entire Program could be viewed as constituting improper client solicitation. See California Rules of Professional Conduct, Rule 2-102(A). In order to avoid even the appearance of this impropriety, attempts by attorneys to obtain payment for legal services done under the auspices of the program are improper and are prohibited.

It follows that after the client has formally withdrawn from the Program and attempts to negotiate a retainer, the attorney may not increase his ordinary, reasonable fees to reflect a premium or payment for past services performed under the Program.

This opinion is advisory only, and is not binding upon the State Bar, the Board of Governors of the State Bar, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.