Formal Opinion No. 117: Ethical Responsibilities of Attorneys in Legal Services and Pro Bono Programs Concerning Prospective Clients - August 2007 - Cba Ethics Committee Formal Opinions

• Publication year: 2007
• Pages: 65

36 Colo.Law. 65 Colorado Lawyer 2007.

2007, August, Pg. 65. Formal Opinion No. 117: Ethical Responsibilities of Attorneys in Legal Services and Pro Bono Programs Concerning Prospective Clients - August 2007 - CBA Ethics Committee Formal Opinions

The Colorado Lawyer
August 2007
Vol. 36, No. 8 [Page 65]

In and Around the Bar
CBA Ethics Committee Formal Opinions

Formal Opinion No. 117: Ethical Responsibilities of Attorneys in Legal Services and Pro Bono Programs Concerning Prospective Clients

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Introduction

Colorado Legal Services (CLS) is a legal services program that provides free legal representation in civil cases to indigent clients through multiple offices across the state.(fn1) In addition, approximately twenty pro bono programs sponsored by local bar associations process requests for legal representation and refer indigent or limited means clients to pro bono attorneys participating in those programs. Because the need for legal services by the indigent or persons of limited means is far greater than the resources available to meet those needs programs are required, out of necessity, to limit their representation to certain substantive areas of law. When the programs are regulated by federal law or otherwise, they also must limit representation to individuals meeting specified financial guidelines

To determine an applicant's eligibility for program services, some pro bono programs conduct joint intakes through CLS, while others maintain separate offices to process applications for services. Generally, a program's intake process is a "free standing" operation whose primary responsibilities are to determine an applicant's eligibility for legal services and refer qualifying clients to staff or volunteer counsel. They also serve as a "hub," working cooperatively with other providers to assist indigent and low income individuals obtain whatever services they may need, even when they are not legal services. Because legal services programs generally are just one part of a multi-faceted network delivering services to the poor, which includes other legal services and social services providers, the private Bar (and clients representing themselves pro se), working in the intake process has evolved into a functional specialty within legal services organizations

Most legal services and pro bono programs use intake specialists that include both attorneys and nonattorneys. These intake specialists determine whether there are conflicts with existing clients, whether the legal issue presented is within the scope of the program's services (substantive eligibility), and whether an individual financially qualifies for representation (financial eligibility). The mix of attorneys and paralegals serving as intake specialists varies among programs.

During the intake process, an individual must provide information about the matter for which he or she seeks representation and disclose his or her financial circumstances. This information typically includes the applicant's name, address, a brief description of the individual's legal problem, source and amount of income, and the name of any adversary. The intake specialist reviews this information, checks for conflicts of interest, and initially determines substantive and financial eligibility. If the intake specialist determines that there are no conflicts with the program's existing or past clients, the program offers the services sought by the applicant, and the individual is deemed financially eligible for the program's services, the applicant is referred to one of the program's staff attorneys or to a private, pro bono counsel who is willing to accept the referral.

Particularly in the domestic relations area, parties who may be adverse to one another sometimes apply for legal assistance from CLS or the same pro bono program. When the information obtained by an intake specialist reveals an actual or potential conflict of interest, CLS and pro bono programs are sometimes unclear as to how to proceed. For example, CLS and pro bono legal services programs have questioned whether its intake specialists may continue to obtain limited qualifying information from the applicant once the intake specialist believes there is a potential or actual conflict of interest and whether they may continue to represent an existing client who is adverse to an applicant from whom an intake specialist subsequently has received application information. Other questions concern whether referrals are permitted generally and when, and to what extent, a legal services program can provide financial assistance to volunteer counsel. This opinion provides ethical guidance to resolve these dilemmas.

Syllabus

If the CLS or a pro bono program's intake attorney or nonattorney intake specialist discovers that an individual applying for the program's services is otherwise eligible for the program's services, but has interests adverse to those of an existing client, intake staff may continue to obtain limited qualifying information from the applicant without violating the Colorado Rules of Professional Conduct. Furthermore, if the intake specialist determines that the applicant qualifies for the program's services, but the program cannot undertake representation because of a conflict of interest with an existing client, the intake attorney or nonattorney intake specialist may refer the applicant to other counsel or another program if:

1) the applicant provided to the intake specialist no more information than necessary to make an initial determination whether the person was qualified for the program's services;

2) the legal services program and the private lawyer to whom the matter will be referred are not considered to be in one firm under Colo. RPC 1.10;

3) safeguards are in place to ensure that the program's lawyers who represent a party adverse to the applicant referred to private counsel or other program do not have access to the information about the adverse party gathered during intake; and

4) the lawyer to whom the adverse party is referred does not have access to the information in the program's possession regarding the adverse party that triggered the conflict.

If the intake attorney or specialist believes that the conditions above cannot be met or have been breached, both the existing client and the adverse applicant should be referred to other...