March 1, 1996
A staff lawyer for a legal aid agency must give the agency's clients adequate notice of impending staff reductions and explain how those reductions may affect the clients' representations. The lawyer must assess whether the impending staff reductions will allow or require withdrawal from pending matters.
An individual staff lawyer should not unilaterally decide whether new cases should or should not be undertaken, but should discuss office policy and ethical considerations with the managing attorney.
If a staff lawyer believes the managing attorney is not properly addressing the ethical considerations triggered by staffing and funding reductions, the lawyer should consider whether the matters may be raised with the legal services board for resolution.
References: MRPC 1.1, 1.3, 1.4, 1.13, 1.16, 5.2; ABA Op 96-399.
The inquirer is a staff lawyer at a legal aid agency, with a legal staff consisting of several staff lawyers and a managing lawyer. The agency has approximately 300 open cases, and on average the office accepts roughly 10 new cases per week. Due to uncertainty regarding the availability of funds for the operation of the legal aid agency, some or all of the staff lawyers may be laid off. In fact, all of the staff lawyers were notified that they would be laid off as of a certain date. That notice was rescinded, and a new notice has been issued, indicating that half of the staff lawyers will be laid off in the coming months.
In the retainer agreements signed by all clients, the agency reserves the right to change the personnel assigned to a file, including lawyers, as necessary. The retainer agreement also provides that the client will be advised and consulted should a change be necessary. The staff lawyers have been instructed by the managing lawyer to continue accepting new cases as they come in.
The staff lawyer asks whether there is an ethical obligation to inform the clients of the impending changes.
MRPC 1.4 states in relevant part:
"(a) A lawyer shall keep a client reasonably informed about the status of a matter . . . .
"(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
Pursuant to the dual requirements of MRPC 1.4, i.e., to keep the client reasonably informed about the status of the matter, and to explain the matter to the extent possible to permit the client to make informed decisions regarding the representation, a lawyer employed by a legal aid agency is clearly obligated to notify clients of the impending changes in staffing. Although the agency's retainer agreement reserves to it the right to reassign personnel as needed, the agreement also provides for advice and consultation with the client should a change be necessary. A lawyer's ethical duty is not in conflict with the representation agreement.
This obligation is reinforced by ABA Formal Opinion 96-399, which sets forth three ethical obligations of legal service lawyers facing reductions in funding:
"First, under Model Rules 1.4(a) and (b), the lawyer must give all clients adequate notice of the impending changes and how they may affect the clients' representations, even though this may produce a flood of calls and visits from concerned clients.
"Second, funding reductions may necessitate withdrawal from many pending matters, and lawyers will need to structure their priorities for the retention of active matters . . . .
"Third, efforts should be made to arrange for alternative funding or substitution of lawyers to handle pending matters."
Therefore, every lawyer in the legal aid agency has a responsibility to see that existing clients of the "law firm" have adequate notice of impending staff reductions and an explanation of how those reductions may affect the clients' representations.
The second issue is whether impending changes will permit or require the staff lawyers to withdraw from pending matters, and to what extent they may continue to accept new cases in light of impending funding reductions which may significantly reduce the number of attorneys on staff. As to the first issue, MRPC 1.16(a) and (b) state in pertinent part:
"(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
"(1) the representation will result in violation of the Rules of Professional Conduct or other law; . . . .
"(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client or if:
". . .
"(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
"(6) other good cause for withdrawal exists."
Depending upon the degree of the staffing and funding cuts, legal services lawyers may find themselves overworked to the point of violating ethics rules of competence, diligence, and promptness, or may be able to show an unreasonable financial burden on the legal services "law firm." If a lawyer is terminated from the legal services agency but, with the client's consent, continues representation, the lawyer may be able to show a personal financial burden. Regardless, it is apparent that the legal services funding crisis is an unanticipated catastrophe that clearly falls within "other good cause." A lawyer would be permitted to file a motion to withdraw under such circumstances, and must assess whether the impending staff reductions will allow or require withdrawal from pending matters on a case by case basis.
With regard to undertaking new matters, MRPC 1.3 requires a lawyer to act with reasonable diligence and promptness in representing a client, and MRPC 1.1 states in pertinent part:
"A lawyer shall provide competent representation to a client. A lawyer shall not:
". . .
"(b) handle a legal matter without preparation adequate in the circumstances; or
"(c) neglect a legal matter entrusted to the lawyer."
Taken in combination, MRPC 1.1 and 1.3 require lawyers to monitor their workloads and decline new clients if taking them on would create overloads that make competent representation impossible. ABA Formal Opinion 96-399. It may be difficult to imagine two staff lawyers and one managing lawyer diligently, promptly and competently handling 300 separate clients. It seems inevitable that continuing to take on new cases in the face of impending staff reductions will necessarily result in the neglect of any number of legal matters. Nevertheless, an individual staff lawyer should not be unilaterally deciding whether cases should be taken by the law firm. In this inquiry, the facts indicate there will be lawyers available, although a reduced force. We have no information whether the outstanding matters or prospective matters are landlord/tenant, consumer law, complex litigation, etc., and have no way of concluding what number of cases is "too many" for the reduced staff to handle.
The inquirer should bring all of these matters to the attention of the managing attorney. MRPC 5.2 states:
"(a) A lawyer is bound by the rules of professional conduct notwithstanding that the lawyer acted at the direction of another person.
"(b) A subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty."
If the managing attorney does not allow appropriate notices to be given to clients and takes no steps regarding reduction in case intake, the staff lawyer should look to MRPC 1.13(b) and (c) regarding taking the matter to the legal services board for resolution.
In conclusion, a staff lawyer for a legal aid agency must give the agency's clients adequate notice of impending staff reductions and explain how those reductions may affect the clients' representations. Also, the staff lawyer must assess whether the impending staff reductions will require the withdrawal from pending matters. Finally, the staff lawyer must monitor his or her workload and decline new clients if taking them on would create overloads, thereby preventing the staff lawyer from providing competent and diligent representation.