Duty to Avoid Conflicts When Advising Members of Nonprofit Organization
Adopted: July 25, 2014
Opinion rules that a lawyer who provides free brief consultations to members of a nonprofit organization must screen for conflicts prior to conducting a consultation.
Inquiry:
A nonprofit organization of nonlawyer professionals provides its members with contact information for certain medical and other professionals who have agreed to provide the members with brief consultations to answer questions on various subjects that are relevant to the members’ professional practices.
The organization has asked Lawyer if she is willing to provide such consultations to its members concerning their legal questions. If Lawyer agrees, she will be described by the organization on its website as a member support legal resource. It will be clear that Lawyer is not an employee of the organization and that she has volunteered to provide such consultations directly to the organization’s members. Such consultations will be without charge to the members, and the organization will not compensate Lawyer for her services.
Lawyer will secure the informed consent of each inquiring member to the limited scope of such representation. However, Lawyer believes that it would be impractical for Lawyer to conduct a conflicts search on each member who calls her before she consults with that member concerning his or her legal question.
It is reasonable to suppose that some members who call Lawyer for a free consultation may, thereafter, wish to engage her to represent them on a paid basis. However, the initial consultation is not conditioned on such continued representation. Lawyer will conduct a conflicts check as to any member who seeks to engage her in an ongoing representation before commencing such representation.
Rule 6.5(a), Limited Legal Services Programs, provides:
A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
Is Lawyer’s initial consultation with members of the organization governed by Rule 6.5 such that Lawyer is subject to Rules 1.7 and 1.9(a) only if she knows that the representation of the client involves a conflict of interest?
Opinion:
No. Rule 6.5 does not apply. Comment [1] to Rule 6.5 states that “[l]egal services organizations, courts, and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services—such as advice or the completion of legal forms—that will assist persons to address their legal problems without further representation by a lawyer.” Rule 6.5 is designed to encourage lawyers to participate in nonprofit programs offering limited legal services on a short-term basis. Examples of such programs include legal-advice hotlines, advice-only clinics, or pro se counseling programs. See Rule 6.5, cmt. [1]. As noted in Comment [1] to Rule 6.5: “Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.” Therefore, Rule 6.5 relaxes the application of the conflict of interest rules.
Rule 6.5 was adopted in response to concerns that a strict application of the conflicts of interest rules may be deterring lawyers from serving as volunteers in programs providing short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. See Ann. Model Rules of Prof’l Conduct R. 6.5 (7th ed. 2009). Rule 6.5’s exception to the duty to avoid conflicts of interest applies only where it is not feasible for the lawyer to complete a comprehensive conflicts check prior to undertaking the representation. The proposed arrangement with Lawyer does not present such a scenario. Upon being contacted by a member of the nonprofit organization, it is feasible for Lawyer to complete a conflicts check prior to conducting the initial consultation. Therefore, Rule 6.5 does not apply and Lawyer has a duty to screen for conflicts of interest as otherwise set out in the Rules of Professional Conduct.