Ethical Issues and Ethical Issues and Procedures for Handling Procedures for Handling

Third Party Callers to Your Third Party Callers to Your Legal HelplineLegal Helpline

Keith MorrisKeith MorrisSue WasserkrugSue WasserkrugDavid Godfrey David Godfrey

Why are we talking about this?

An issue for everyone Various models

• Never• Everyone

Ethics considerations Funder reporting policy Need for clear program policy that

considers both funding and ethics

Who is a third party caller? Who is a third party caller?

Someone calling about a matter Someone calling about a matter relating to someone else relating to someone else • not the target clientnot the target client

Program policy and ethics rules Program policy and ethics rules control who you can enter into an control who you can enter into an attorney client relationship with.attorney client relationship with.

Is your funding restricted to Is your funding restricted to services to a defined population? services to a defined population?

IncomeIncome AssetsAssets AgeAge GenderGender Location Location Status – such as Status – such as

• only victims of crimes, only victims of crimes, • only victims of domestic violence – only victims of domestic violence – • only children at risk – only children at risk – • only non-biological patents raising children only non-biological patents raising children

Do you have limitations based on Do you have limitations based on legal issues? legal issues?

Civil onlyCivil only Criminal onlyCriminal only No criminal casesNo criminal cases Consumer law onlyConsumer law only Landlord tenant – only tenants or any Landlord tenant – only tenants or any

landlord tenantlandlord tenant Defense of guardianship only Defense of guardianship only

Who do you talk to?

Guardians Anyone with permission from client Agents under a power of attorney

• Do we need a copy first • Do we need permission from grantor• What if grantor is incapacitated

How do you deal with an How do you deal with an

ineligible caller?ineligible caller?

Turn them away Turn them away Use them to access target clientUse them to access target client Provide information and referral onlyProvide information and referral only Help them if they are ultimately Help them if they are ultimately

helping a qualified client who cannot helping a qualified client who cannot enter into an attorney client enter into an attorney client relationship relationship

What establishes an attorney client What establishes an attorney client relationship? relationship?

Intent by the caller to seek legal helpIntent by the caller to seek legal help andand The lawyer manifests consent to give The lawyer manifests consent to give

legal assistance (actual or implied) legal assistance (actual or implied) Or, the lawyer fails to decline Or, the lawyer fails to decline

representation and the client relies representation and the client relies on the on the expectation that the expectation that the attorney will provide legal assistance attorney will provide legal assistance

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 26 (1998)§ 26 (1998)

Attorney Client RelationshipAttorney Client Relationship

““Specific legal advice in response to Specific legal advice in response to a set of particular facts is the a set of particular facts is the hallmark of the practice of law, while hallmark of the practice of law, while providing general information about providing general information about the law is not”the law is not”

ATTORNEY-CLIENT RELATIONSHIPS IN CYBERSPACE: THE PERIL AND THE ATTORNEY-CLIENT RELATIONSHIPS IN CYBERSPACE: THE PERIL AND THE

PROMISE, CATHERINE J. LANCTOT 49 Duke L. J. 147PROMISE, CATHERINE J. LANCTOT 49 Duke L. J. 147 http://www.law.duke.edu/journals/cite.php?49+Duke+L.+J.+147#F115

Model Rules of Professional Model Rules of Professional ConductConduct

Rule 1.18 Duties To Prospective ClientRule 1.18 Duties To Prospective Client (a) A person who discusses with a lawyer (a) A person who discusses with a lawyer

the possibility of forming a client-lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a relationship with respect to a matter is a prospective client. prospective client.

(b) Even when no client-lawyer (b) Even when no client-lawyer relationship ensues, a lawyer who has had relationship ensues, a lawyer who has had discussions with a prospective client shall discussions with a prospective client shall not use or reveal information learned in not use or reveal information learned in the consultation, except as Rule 1.9 would the consultation, except as Rule 1.9 would permit with respect to information of a permit with respect to information of a former client. former client.

Case Studies: Case Studies:

Betty is 65 years old and called seeking Betty is 65 years old and called seeking help. Her 87 year old mother Bernice help. Her 87 year old mother Bernice wants to create a power of attorneywants to create a power of attorney

Who can be your client?Who can be your client? Can you represent Betty?Can you represent Betty? What if it was drafting a lease for Betty to What if it was drafting a lease for Betty to

rent Bernice's basement apartment? rent Bernice's basement apartment?

Betty and Bernice Continued Betty and Bernice Continued

What do you need to do to represent What do you need to do to represent Bernice? Bernice? • Talk to her Talk to her • CapacityCapacity• Goal Goal • Confidentiality Confidentiality

Does it matter if Bernice wants to Does it matter if Bernice wants to name Betty as attorney in fact? name Betty as attorney in fact?

Bob and FredBob and Fred

Bob, age 50, calls seeking help. Bob, age 50, calls seeking help. Bob’s father Fred, who is 72 years Bob’s father Fred, who is 72 years old, is about to be evicted from his old, is about to be evicted from his rent subsidized apartment because rent subsidized apartment because he is keeping a small dog as he is keeping a small dog as recommended by his doctor to recommended by his doctor to provide companionship as a therapy provide companionship as a therapy animal.   animal.  

Bob and FredBob and Fred

What if you tell Bob, “we can assert a What if you tell Bob, “we can assert a defense in federally subsidized defense in federally subsidized housing allowing therapy animals, housing allowing therapy animals, that should allow Fred to stay in the that should allow Fred to stay in the apartment.” apartment.”

Have you entered into an attorney Have you entered into an attorney client relationship with Bob by giving client relationship with Bob by giving him this advice? him this advice?

Multiple ClientsMultiple Clients

Adversity between multiple clients is Adversity between multiple clients is the first concernthe first concern

Conservative viewConservative view• Start with the assumption they are Start with the assumption they are

adverse adverse • Justify why they are not adverse Justify why they are not adverse

If not adverse – then multi clientsIf not adverse – then multi clients Caution, you owe all ethical duties to Caution, you owe all ethical duties to

each client individually each client individually

Multi-client representation under 1.7Multi-client representation under 1.7

Adversity is minimal and low riskAdversity is minimal and low risk Attorney reasonably believes that he Attorney reasonably believes that he

can ethically and legally represent all can ethically and legally represent all clients clients

Clients understand and consent Clients understand and consent (writing is a state by state issue)(writing is a state by state issue)

If later conflicts arise, the lawyer If later conflicts arise, the lawyer may have to withdraw from may have to withdraw from representing all clients representing all clients

MRPC 1.16 (a)MRPC 1.16 (a)

Dawn and MargieDawn and Margie

Dawn (age 40) calls to say that her Dawn (age 40) calls to say that her mother Margie (age 71) is in hospital mother Margie (age 71) is in hospital and has received notice that and has received notice that Medicare will not cover additional Medicare will not cover additional days. Mom is comatose. days. Mom is comatose.

Who can you enter into an attorney Who can you enter into an attorney client relationship with? client relationship with?

Bold Statement*Bold Statement* You can not enter into an attorney client You can not enter into an attorney client

relationship with a person you can not relationship with a person you can not communicate withcommunicate with

Intent by the caller to seek legal helpIntent by the caller to seek legal help The lawyer manifests consent to give legal The lawyer manifests consent to give legal

assistance (actual or implied) assistance (actual or implied) Or, the lawyer fails to decline Or, the lawyer fails to decline

representation and the client relies on the representation and the client relies on the expectation that the attorney will provide expectation that the attorney will provide legal assistance legal assistance

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 26 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 26 (1998) (1998)

* some exceptions apply * some exceptions apply

Dawn and MargieDawn and Margie

You talk to Margie on the phone she You talk to Margie on the phone she is still quite impaired but is able to is still quite impaired but is able to express her wish to remain in the express her wish to remain in the hospital for additional treatment hospital for additional treatment

Can Margie be your client? Can Margie be your client?

Rule 1.14 Client With Diminished Rule 1.14 Client With Diminished Capacity Capacity

(a) When a client's capacity to make (a) When a client's capacity to make adequately considered decisions in adequately considered decisions in connection with a representation is connection with a representation is diminished, whether because of diminished, whether because of minority, mental impairment or for minority, mental impairment or for some other reason, some other reason, the lawyer shall, the lawyer shall, as far as reasonably possible, as far as reasonably possible, maintain a normal client-lawyer maintain a normal client-lawyer relationship with the clientrelationship with the client..

Richard and Christy Richard and Christy

Your represent Richard regarding Your represent Richard regarding obtaining Medicaid benefits. His obtaining Medicaid benefits. His daughter-in-law Christy is on the daughter-in-law Christy is on the phone with him on every call. phone with him on every call.

Today she calls and says she and Today she calls and says she and Richard have been talking and they Richard have been talking and they have a question? have a question?

Do you talk to her? Do you talk to her?

What if she shows up at your office What if she shows up at your office with documents that you need? with documents that you need?

What if you are talking to Richard on What if you are talking to Richard on the phone, and Christy starts asking the phone, and Christy starts asking questions? questions?

Barbie and KenBarbie and Ken

Your legal aid program has been Your legal aid program has been helping Barbie with a credit card helping Barbie with a credit card collection issue. You are explaining collection issue. You are explaining responsibility for joint accounts responsibility for joint accounts under fair debt collection practices under fair debt collection practices act to Barbie over the phone and she act to Barbie over the phone and she says, “I just don’t understand, can says, “I just don’t understand, can you explain this to my best friend you explain this to my best friend Ken” and hands him the phone.   Ken” and hands him the phone.  

Barbie and Ken Continued

In order to explain why Barbie is responsible for the debt, you have to explain how she ended up with a joint account with GI Joe, information that Barbie gave you after saying, “I have never told this to anyone and I would just die my friends knew about this.” – At what point does confidentiality under 1.6 limit what you can say?

What do you do?

Nancy and Tom

You represent Nancy in a messy divorce. You have a phone message asking you to call her son Tom.

The message says, “I know where her husband hid the money”

Nancy and Tom Nancy and Tom

1.6 confidentiality is a one way street 1.6 confidentiality is a one way street What do you need to tell Tom? What do you need to tell Tom?

Rule 4.3 Dealing With Rule 4.3 Dealing With Unrepresented Person Unrepresented Person

In dealing on behalf of a client with a person who In dealing on behalf of a client with a person who is not represented by counsel, is not represented by counsel, a lawyer shall not a lawyer shall not state or imply that the lawyer is disinterestedstate or imply that the lawyer is disinterested. . When the lawyer knows or reasonably should When the lawyer knows or reasonably should know that the unrepresented person know that the unrepresented person misunderstands the lawyer’s role in the matter, misunderstands the lawyer’s role in the matter, the the lawyer shall make reasonable efforts to lawyer shall make reasonable efforts to correct the misunderstandingcorrect the misunderstanding. The lawyer shall . The lawyer shall not give legal advice to an unrepresented person, not give legal advice to an unrepresented person, other than the advice to secure counsel, if the other than the advice to secure counsel, if the lawyer knows or reasonably should know that the lawyer knows or reasonably should know that the interests of such a person are or have a interests of such a person are or have a reasonable possibility of being in conflict with the reasonable possibility of being in conflict with the interests of the client.interests of the client.

Resources Resources

Cera Cera www.legalhotlines.org Model Rules of Professional Conduct Model Rules of Professional Conduct http://www.abanet.org/cpr/mrpc/mrpc_toc.html Check your state’s version of the Check your state’s version of the

rulesrules