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Proposed Formal Ethics Opinion

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

DISCUSSION DRAFT


Lawyers have concerns about ethical responsibilities while employed by a legal services organization in a pilot program intended to provide limited legal services to otherwise pro se litigants.

The Community Legal Center (CLC) of Memphis, Tennessee, in conjunction with the Administrative Office of the Courts’Working Group on Self Represented Litigants has established a pilot program to provide limited representation services to unrepresented persons in divorce and related matters. The Pro Se Clinic is housed in the Shelby County Courthouse.

Initially, two attorneys staff the office at different times. The attorneys are paid modest compensation by CLC. The attorneys consult with persons financially unable to afford legal representation in domestic relations matters. In cases deemed appropriate, one of the attorneys provides limited advice and assistance without becoming counsel of record in the matter. In assessing the appropriateness of matters, the attorney attempts to assess the capacity of the client to understand the procedures, the complexity of the matter and other pertinent factors.

The attorney discloses the compensation by CLC to each client and obtains the client’s compliance with RPC 1.8(f) and 5.4(c). Each client assisted is required to sign a disclosure form confirming the limited nature of representation to comply with RPC 1.2(c).

The attorney may assist the client in preparing documents for filing such as a divorce complaint, summons, protective order application, property settlement agreement or decree. The client is informed that the attorney is not representing the client on an ongoing basis and that the limited representation is concluded when the consultation ends. The attorney may assist the client in one or more aspects of the legal matter thereby unbundling the legal representation. It is disclosed to the client that the attorney will not make any court appearances.

The Pro Se Clinic’s services are provided without charge to persons unable to afford counsel. The clinic fulfills a need within the system of justice for legal aid to poor people whose needs cannot be met by a legal services or pro bono attorney accepting the case and appearing as attorney of record.

ISSUES

  1. How may the Pro Se Clinic attorney assure that the limited representation is reasonable under the circumstances?
  2. May the Pro Se Clinic’s limited services be presumed reasonable?
  3. Shall the lawyers providing services be considered to be associated in a law firm for conflict of interest purposes?
  4. Shall it be sufficient disclosure to the court if the Pro Se Clinic attorney states in writing that the document was prepared with the attorney’s assistance without an intention to become counsel of record in the matter?

  1. RPC 1.2(c) allows a lawyer to limit the scope of a client’s representation if the client consents and if the limitation is reasonable under the circumstances. What is reasonable depends on the specific facts.

    The primary focus in this inquiry is whether the attorney can provide competent representation despite the limitations on the services. The question will usually become whether the client will be in a better position with limited services than with no services.

    The attorney’s assessment of the clients’ ability to represent themselves is the first step. If a client comprehends the elements of a parenting plan form, the assistance of a lawyer in completing a plan form is beneficial. Closely connected is the complexity of the legal matter. In a routine parenting plan, the court will benefit from the lawyer's limited assistance in preparing the plan.

    In Colorado Bar Association Ethics Opinion 101, the Rules of Professional Conduct were applied to a similar inquiry. The opinion states:
    “Thoroughness and preparation requires the lawyer to make the factual inquiry necessary to understand the client’s legal situation and provide competent advice. The nature of the required ‘thoroughness and preparation’ is not the same in every matter. As noted in the Comment to Rule 1.1. (Comment 5. in the Tennessee RPC), ‘The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions require more elaborate treatment than matters of lesser consequence.’”
    The inquiring attorneys intend to advise each prospective client of the risks of the client proceeding pro se, even with the attorney’s limited advice and assistance. The disclosures in writing signed by the client appear to be adequate to allow limited representation by the Pro Se Clinic.

  2. The attorneys request the Board to allow a presumption of reasonableness for representations under the pilot program. The Board does not, in all probability, have such powers.

    The Board presumes all attorneys will act reasonably in the conduct of their business. Given that these services are rendered pro bono, it is unlikely that an arguable case of reasonableness would be questioned or sanctioned.

    The Board presumes all attorneys will act reasonably in the conduct of their business. Given that these services are rendered pro bono, it is unlikely that an arguable case of reasonableness would be questioned or sanctioned.

  3. The Pro Se Clinic should be able to operate without being considered to be a “firm.” Comment 1. to RPC 1.10 states, “Whether two or more lawyers constitute a firm within this definition can depend on the specific facts. For example, two practitioners who share office space and occasionally consult or assist each other ordinarily would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggesting that they are a firm or conduct themselves as a firm, they should be regarded as a firm for the purposes of the Rules. The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact they have mutual access to information concerning the clients they serve. Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the Rule that is involved. A group of lawyers could be regarded as a firm for purposes of the rule that the same lawyer should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one lawyers is attributed to the other.”

    The Pro Se Clinic is staffed by part time attorneys who will often be the only attorney present. By maintaining confidentiality between themselves, by restricting access to each other’s files and by informing clients of their non-affiliation, the attorneys should be able to avoid being considered a “firm.” Although not required because the lawyers in the clinic are not in a firm, they may want to consider adopting a policy that they will not oppose one another in Pro Se Clinic matters. Due to the separation between CLC and the Pro Se Clinic as operated, Pro Se Clinic attorneys would not be considered members of the CLC firm. The Pro Se Clinic does not have access to CLC files and vice versa. They are located in separate offices. Pro Se Clinic attorneys and CLC attorneys do not act as co-counsel in any matter.
  4. Tennessee Formal Ethics Opinion 85-F-83, cites with approval a statement in ABA Informal Opinion 1444:
    “Extensive undisclosed participation by a lawyer … that permits the litigant falsely to appear as being without substantial professional assistance is improper.”
    The opinion was under the Code of Professional Conduct, now replaced by the Rules of Professional Conduct, but, the rationale remains the same. Under RPC 8.4 an attorney may not engage in conduct prejudicial to the administration of justice nor engage in dishonest or deceitful conduct.

    Delaware State Bar Ethics Opinion 1994-2 states:
    “A litigant may receive some advantages, in the form of more lenient treatment concerning procedural matters, for example, if the tribunal perceives the litigant to be unrepresented.”
    The opinion concluded that an attorney preparing court filed documents for pro se litigants should disclose participation by letter to the court and opposing counsel.

    In Florida Bar Opinion 79-7 Reconsideration (February 15, 2000), the committee concluded “that pleadings or other papers prepared by an attorney and filed with the court on behalf of a pro se litigant must indicate, ‘Prepared with Assistance of Counsel.’”

    Similar recommendations were made by Alaska Bar Opinion 93-1, New York City Bar Formal Opinion 1987-2 and Virginia Legal Ethics Opinion 1127. It is our opinion that notifying the court that counsel has assisted the pro se litigant without expectation that counsel will appear and represent the client in the manner described by the inquiring attorneys is sufficient.

This ______ day of _____________, 2005.

DISCUSSION DRAFT ONLY


Inside Board Notes
Disciplinary Actions - By William W. "Tripp" hunt, III

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