April 25, 1974
Ethics Opinon 1974-9
SUBJECT: BEACH AREA FREE CLINIC
Question 1: A free legal clinic proposes to issue an "immediate release" to publicize the services being offered to the residents of the community. May the clinic ethically issue the release?
Question 2: May each staff attorney of the legal clinic exercise his own discretion in determining whether a particular individual merits free counselling?
Question 3: May the clinic post a sign stating, or may the staff members courteously voice their needs and desires regarding the policy of the clinic to accept donations?
Question 1: A legal aid clinic may publicize the programs being offered; however, the names of participating members of the State Bar may not be so publicized.
Question 2: Each staff attorney may exercise his own discretion. To exercise independent professional judgment on behalf of a client, the legal aid lawyer must be free to act within predetermined general guidelines.
Question 3: Provided that no part of the donation is used to compensate participating attorneys and that the donation is not a prerequisite to counselling such a sign or request is permissible.
STATUTES AND CANONS AND OPINIONS
Both Rule 2 of the Rules of Professional Conduct of the State Bar of California and Ethical considerations 2-9 of the Code of Professional Responsibility of the American Bar Association proscribe advertising by lawyers or solicitations of professional employment. However, Rule 21 of the Rules of Professional Conduct of the State Bar of California provides that the publicizing of a legal aid plan or program is not in violation of Rule 2 provided the names of participating members of the State Bar are not publicized.
The Committee on Professional Ethics and Grievances of the American Bar Association has considered the applicability of Canon 27 to legal aid programs in Formal Opinion No. 148 which stated:
"Offering publicly to render services without charge to citizens who are unable to pay for them is not unethical."
The Committee in Informal Opinion No. 992 stated that Canon 27 was not aimed at Legal Aid announcements where a group of lawyers announce that they are willing to devote some of their time and energy to the interests of indigent citizens.
Canon 5 of the Code of Professional Responsibility of the American Bar Association states that:
"(a) lawyer should exercise independent judgment on behalf of a client."
Ethical Consideration 5-1 provides that:
"The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client."
Ethical Consideration 5-21 provides that:
"The obligation of a lawyer to exercise professional judgment solely on behalf of his client requires that he disregard the desires of others that might impair his free judgment. The desires of a third person will seldom adversely affect a lawyer unless that person is in a position to exert strong economic, political, or social pressures upon the lawyer. These influences are often subtle, and a lawyer must be alert to their existence."
Ethical Consideration 5-24 stresses that the functions of the Board of Directors of a legal aid society should be limited to setting broad policy guidelines for the operation of the society:
"Various types of legal aid offices are administered by boards of directors composed of lawyers and laymen. A lawyer should not accept employment from such an organization unless the board sets only broad policies and there is no interference in the relationship of the lawyer and the individual client he serves. Where a lawyer is employed by an organization, a written agreement that defines the relationship between him and the organization and provides for his independence is desirable since it may serve to prevent misunderstanding as to their respective roles. Although other innovations in the means of supplying legal counsel may develop, responsibility of the lawyer to maintain his professional independence remains constant, and the legal profession must insure that changing circumstances do not result in loss of the professional independence of the lawyer."
The Committee on Professional Ethics and Grievances of the American Bar Association has considered the application of Canon 5 and the above quoted Ethical Considerations to the discretion legal aid lawyers must retain vis-a-vis the governing board of the legal aid society. In Formal Opinion No. 324, the Committee stated:
"We believe that it is more desirable for a board of directors of a legal aid society, in determining which clients its attorneys may undertake to represent and the cases its attorneys may prosecute, to set broad guidelines respecting the categories or kinds of clients and cases rather than to act on a case-by-case, client-by-client basis. There is in a case-by-case consideration the very real danger that the more controversial causes--those which often provide opportunities for law reforms aiding the poor--will be subject to board veto solely because of a fear of criticism from certain influential segments of the community . . .
"In addition to establishing broad policy, the board has the concomitant obligation to insure that its policies are being faithfully carried out . . .
After the attorney has accepted a client or case of the nature and type sanctioned by the board policy, the board must take special precautions not to interfere with its attorney's independent professional judgment in the handling of the matter."
Canon 2 of the Code of Professional Responsibility of the American Bar Association states that:
"[a] lawyer should assist the legal profession in fulfilling its duty to make legal counsel available."
Ethical Consideration 2-16 provides in part:
". . . persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in ethical activities designed to achieve that objective."
Ethical Consideration 5-5 states that:
"[a] lawyer should not suggest to his client that a gift be made to himself or for his benefit."
Disciplinary Rule 3-102 provides generally that a lawyer shall not share legal fees with a nonlawyer.
Rule 21, Formal Opinion No. 148 and Informal Opinion No. 992 sanction the publicity of legal aid programs and plans. However, Rule 21 is clear that the publicity shall not include the names of participating attorneys. As the publicity release submitted for this opinion includes the names of the clinic attorneys, it will have to be modified.
To the extent that the release states that the clinic would provide counselling "with special emphasis on landlord-tenant matters and marital dissolution problems", it is the writer's opinion that there may be some problem of the clinic holding itself out as a specialist. However, this would seem to fall within the realm of proper publicity of a "legal aid plan or program" as sanctioned in Rule 21.
Canon 5 provides that a lawyer shall exercise independent professional judgment on behalf of a client. Ethical Considerations 5-1 and 5-21 stress the need for the lawyer to guard against erosion of his independence. Ethical Consideration 5-24 and Formal Opinion No. 324 state that the legal aid lawyer must retain the authority to decide on a case-by-case, client-by-client basis which cases and clients he will represent, while the governing board should set the broad guidelines within which the individual attorneys operate. Thus, it appears that it is not only permissible for the staff attorneys to exercise their own discretion in determining whether a particular individual merits free counselling, it is mandatory that they retain this independence to act within the predetermined guidelines.
Canon 2, Ethical Consideration 2-16 and other sections of the Code of Professional Responsibility sanction and encourage lawyers to participate in programs to make legal services available to those who cannot afford them. Obviously, contributions of money to legal aid programs contribute to this goal.
Ethical Consideration 5-5 prohibits an attorney from suggesting that a client make a gift to him. Disciplinary Rules prohibit a lawyer from sharing a fee with nonlawyers.
With these prohibitions in mind, it is clear that any donations requested and accepted must go only to the clinic operational expenses and not to any attorney. Additionally, to avoid the fee-sharing proscription, it must be made clear to the client and to all personnel of the clinic that donations to the clinic are in no way a prerequisite to counselling.
It is this writer's opinion that, if the above precautions are observed, a simple sign or courteous request for donations would be permissible.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: This Opinion was reviewed and found to be valid on July 22, 1976. Note the California Rules 2 and 21 are now Rule 2-101. Informal Opinion No. 992 has been approved in Informal Opinion No. 1227. Also see Formal Opinion No. 334 regarding disclosure of confidences to a Board of Governors.
The State Bar of California has issued proposed amendments to the Rules involving advertising; however, it does not appear at this time that approval of the amendments by the Supreme Court would affect the conclusion of this opinion.
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.