Easing Conflict Rules for Brief Pro Bono Legal Advice
A small rule change regarding free legal advice could improve lawyer-community relations and improve access to legal services in Utah.
by Dave Duncan
Every lawyer has been approached at a party by a friend who asks, “Can I ask a quick question?” All lawyers learn the response in law school: “I’m sorry, but I can’t give you legal advice until I complete a conflict check with my firm.” The friend quickly concludes that lawyers are unhelpful, tend to over-complicate the simple, make getting advice difficult, and are invariably driven by money. The impression is only reinforced if the lawyer mentions signing a contract before providing even simple advice.
Giving legal advice creates an attorney-client relationship. Creating a client relationship and later finding that the client is adverse to another client can cost the lawyer both clients. This is true even if one of the clients was a client who only received brief legal advice. See Utah R. Prof’l Conduct 1.7 (Conflict of Interest: Current Clients), id. 1.9 (Duties to Former Clients), id. 1.18 (Duties to Prospective Client). Worse, one lawyer at a firm who gives free, brief legal advice to a person can theoretically prevent all other lawyers at the firm from taking on future (perhaps, well-paying) clients who are adverse to the person who received the free, brief legal advice. See id. R. 1.10 (Imputation of Conflicts of Interest).
The current rules provide an exception in a few cases – when providing brief legal advice that is under the auspices of non-profit and court-annexed limited legal services programs. See id. R. 6.5. But these situations are very limited, and many of those who need the brief legal advice may not even know about such programs. Regardless, the current rules don’t ease the burden on the typical lawyer who is put on the spot when a friend asks a legal question – the answer to which would be simple but may still put the lawyer in an ethical predicament if provided. Does the lawyer (1) provide the advice without performing a conflict...