Ethics and Assisted Pro Se Representation

1. Ethics and Assisted Pro Se Representation Wayne County Pro Bono Conference August 15, 2012

2. Hypothetical: Help Through Free Legal Clinic – Can I Do This? Providence Bono, an attorney in private practice known as “Pro” to her friends, was volunteering at the local family law legal aid clinic being run by the legal aid office, PLAN and the PBA. Providence walked into the clinic site with her large coffee and was greeted by the legal aid attorney running the clinic, Providence Se (two Pros at one clinic!).

3. Hypothetical: Help Through Free Legal Clinic – Can I Do This? Pro was reminded that her role, and the role of the legal aid attorney, would be to oversee the law students and local paralegals participating in the clinic. Each volunteer was seated at a table with a laptop with internet connection. The volunteers had just finished an hour of training on PALawHELP.org, the website designed to provide information to self-represented clients.

4. Hypothetical: Help Through Free Legal Clinic – Can I Do This? Process: Each volunteer would interview "clients" as they walked in and would seek attorney assistance if the clients had questions the volunteers couldn't answer off of PALawHELP.org. At Beginning: Client signs a form letter as they come in noting that the clinic was providing limited representation only for the time the client was in the clinic At Conclusion: Client receives form letter and an exit survey stating that the representation was over and that the client would need to follow up on his or her own with the information and advice received.

5. Hypothetical: Help Through Free Legal Clinic – Can I Do This? As the first clients walked in, Pro Bono went over to watch a volunteer, Goodie Deeds, greet her first client of the day, a woman named Soo Lost. Soo told Goodie that the father of her three month old child had left her right after birth and that she wanted to get legal custody of the child and child support. As Pro watched, she thought...

6. Hypothetical: Questions Raised Is this clinic the unauthorized practice of law? Is Soo, and everyone who comes in here, my client? Am I allowed to limit my representation to just this morning's clinic? Do I have to do conflict checks on everyone of these people before helping them? Does it matter that the local legal aid office is co-sponsoring this clinic? Does Pro Se have the same ethical issues as me or are hers different because she works for legal aid?

7. Rule 6.5 Nonprofit and Court Appointed Limited Legal Services Programs (a) 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: • 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 • 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. (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.

8. Rule 6.5 - Comment [1] Legal 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. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer’s representation of the client will continue beyond the limited consultation. ….

9. Rule 6.5 - Comment [1] (continued) 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. See, e.g., Rules 1.7 [Conflict of Interest: Current Clients], 1.9 [Duties to Former Clients] and 1.10 [Imputation of Conflicts of Interest: General Rule].

10. Rule 6.5 - Comment [2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation. See Rule 1.2(c) [A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.]. …

11. Rule 6.5 - Comment [2] (continued) If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 [Confidentiality of Information] and 1.9(c) [Duties to Former Clients], are applicable to the limited representation.

12. Rule 6.5 - Comment [3] Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 [Conflict of Interest: Current Clients] or 1.9(a) [Duties to Former Clients] only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 [Imputation of Conflicts of Interest: General Rule] only if the lawyer knows that another lawyer in the lawyer’s firm is disqualified by Rules 1.7 or 1.9(a) in the matter.

13. Rule 6.5 - Comment [4] Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer’s firm, paragraph (b) provides that Rule 1.10 [Imputation of Conflicts of Interest: General Rule] is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer’s firm is disqualified by Rule 1.7 or 1.9(a). ….

14. Rule 6.5 - Comment [4] (continued) By virtue of paragraph (b), however, a lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program.

15. Rule 6.5 - Comment [5] If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable.

16. Hypothetical: Questions Raised At the beginning of the Clinic the client signs a form letter noting that the clinic was providing limited representation only for the time the client was in the clinic At the conclusion of the Clinic the client receives a form letter and an exit survey stating that the representation was over and that the client would need to follow up on his or her own with the information and advice received. Are these necessary?

17. Rule 6.5 - Comment [2] A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of the representation. See Rule 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation.

18. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

19. Rule 1.0 Terminology (e) "Informed consent" denotes the consent by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

20. Rule 1.0 Terminology (b) "Confirmed in writing" when used in reference to the informed consent of a person, denotes an informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of "informed consent.“ If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.

21. Rule 1.7 Conflict of Interest: Current Clients (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: • the representation of one client will be directly adverse to another client; or • there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: • the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; • the representation is not prohibited by law; • the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and • each affected client gives informed consent.

22. Rule 1.9 Duties to Former Clients (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client • whose interests are materially adverse to that person; and • about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: • use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or • reveal information relating to the representation except as these Rules would permit or require with respect to a client.

23. Rule 1.10 Imputation of Conflicts of Interest: General Rule (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm, or unless permitted by Rules 1.10(b) or (c). (b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter unless: • the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and • written notice is promptly given to the appropriate client to enable it to ascertain compliance with the provisions of this rule.

24. Rule 1.10 Imputation of Conflicts of Interest: General Rule (c) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: • the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and • any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7. (e) While lawyers are associated in a firm, a prohibition in paragraphs (a) through (i) of Rule 1.8 that applies to any one of them shall apply to all of them.

25. Rule 1.10 Imputation of Conflicts of Interest: General Rule (f) The disqualification of lawyers in a firm with former or current government lawyers is governed by Rule 1.11. (g) The disqualification of lawyers in a firm with a former judge, arbitrator, mediator or other third-party neutral is governed by Rule 1.12. (h) Where a lawyer in a firm is disqualified from a matter due to consultation with a prospective client pursuant to Rule 1.18(b) and (c), disqualification of other lawyers in the same firm is governed by Rule 1.18(d). (i) The disqualification of a lawyer when another lawyer in the lawyer's firm is likely to be called as a witness is governed by Rule 3.7.