Ethical Issues and Procedures for Handling Third Party Callers to Your Legal Helpline Keith Morris Sue Wasserkrug 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?  Someone calling about a matter relating to someone else not the target clientnot the target client  Program policy and ethics rules control who you can enter into an attorney client relationship with.

Is your funding restricted to services to a defined population?  Income  Assets  Age  Gender  Location  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 childrenonly non-biological patents raising children

Do you have limitations based on legal issues?  Civil only  Criminal only  No criminal cases  Consumer law only  Landlord tenant – only tenants or any landlord tenant  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 ineligible caller?  Turn them away  Use them to access target client  Provide information and referral only  Help them if they are ultimately helping a qualified client who cannot enter into an attorney client relationship

What establishes an attorney client relationship?  Intent by the caller to seek legal help  and  The lawyer manifests consent to give legal assistance (actual or implied)  Or, the lawyer fails to decline representation and the client relies on the expectation that the attorney will provide legal assistance  RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 26 (1998)

Attorney Client Relationship  “Specific legal advice in response to a set of particular facts is the hallmark of the practice of law, while providing general information about the law is not”  ATTORNEY-CLIENT RELATIONSHIPS IN CYBERSPACE: THE PERIL AND THE PROMISE, CATHERINE J. LANCTOT 49 Duke L. J

Model Rules of Professional Conduct  Rule 1.18 Duties To Prospective Client  (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.  (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.

Case Studies:  Betty is 65 years old and called seeking help. Her 87 year old mother Bernice wants to create a power of attorney  Who can be your client?  Can you represent Betty?  What if it was drafting a lease for Betty to rent Bernice's basement apartment?

Betty and Bernice Continued  What do you need to do to represent Bernice? Talk to herTalk to her CapacityCapacity GoalGoal ConfidentialityConfidentiality  Does it matter if Bernice wants to name Betty as attorney in fact?

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

Bob and Fred  What if you tell Bob, “we can assert a defense in federally subsidized housing allowing therapy animals, that should allow Fred to stay in the apartment.”  Have you entered into an attorney client relationship with Bob by giving him this advice?

Multiple Clients  Adversity between multiple clients is the first concern  Conservative view Start with the assumption they are adverseStart with the assumption they are adverse Justify why they are not adverseJustify why they are not adverse  If not adverse – then multi clients  Caution, you owe all ethical duties to each client individually

Multi-client representation under 1.7  Adversity is minimal and low risk  Attorney reasonably believes that he can ethically and legally represent all clients  Clients understand and consent (writing is a state by state issue)  If later conflicts arise, the lawyer may have to withdraw from representing all clients  MRPC 1.16 (a)

Dawn and Margie  Dawn (age 40) calls to say that her mother Margie (age 71) is in hospital and has received notice that Medicare will not cover additional days. Mom is comatose.  Who can you enter into an attorney client relationship with?

Bold Statement*  You can not enter into an attorney client relationship with a person you can not communicate with  Intent by the caller to seek legal help  The lawyer manifests consent to give legal assistance (actual or implied)  Or, the lawyer fails to decline representation and the client relies on the expectation that the attorney will provide legal assistance  RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 26 (1998)  * some exceptions apply

Dawn and Margie  You talk to Margie on the phone she is still quite impaired but is able to express her wish to remain in the hospital for additional treatment  Can Margie be your client?

Rule 1.14 Client With Diminished Capacity  (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

Richard and Christy  Your represent Richard regarding obtaining Medicaid benefits. His daughter-in-law Christy is on the phone with him on every call.  Today she calls and says she and Richard have been talking and they have a question?  Do you talk to her?

 What if she shows up at your office with documents that you need?  What if you are talking to Richard on the phone, and Christy starts asking questions?

Barbie and Ken  Your legal aid program has been helping Barbie with a credit card collection issue. You are explaining responsibility for joint accounts under fair debt collection practices act to Barbie over the phone and she says, “I just don’t understand, can you explain this to my best friend Ken” and hands him the phone.  Your legal aid program has been helping Barbie with a credit card collection issue. You are explaining responsibility for joint accounts under fair debt collection practices act to Barbie over the phone and she says, “I just don’t understand, can you explain this to my best friend 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  1.6 confidentiality is a one way street  What do you need to tell Tom?

Rule 4.3 Dealing With Unrepresented Person  In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Resources  Cera   Model Rules of Professional Conduct   Check your state’s version of the rules