September 29, 1997
There is no client-lawyer relationship between a legal services agency and the participant of a "pro se," self–help clinic, when no confidential information has been divulged and when the participant has signed an agreement where the agency has disavowed legal representation.
There is no conflict of interest for the staff of the legal services agency when a couple both attend the self-help clinic.
A legal services agency that offers group "pro-se," self-help clinics, is not disqualified from actively representing a party to pro se litigation, when the litigation has been filed by an individual that participated in one of the agency's self-help clinics.
References: MRPC 1.0, 1.3, 1.6, 1.7(a),1 .9; RI-57, RI-154, RI-230, RI-239.
The inquirer is a legal services agency (hereafter "agency"), which conducts "pro se," self-help group clinics for indigent individuals who are seeking divorce or child custody. Attendance at these group clinics ranges from 10 to 50 participants at a time. Sometimes, couples attend together. The agency staff shows the participants how to complete the necessary paper work to obtain a judgment of divorce or child custody. No individual discussions between the agency staff and the participants take place that reveals confidential information. Participants are permitted to ask questions during the clinic sessions.
Prior to a participant taking part in the clinic, certain information is obtained by an intake person to determine the participant's eligibility for assistance, under the income guidelines of the agency. Also, the intake person records the name, address, etc., of the person, and a brief description of what the participant is seeking, e.g., divorce.
No direct representation of a participant is provided by the agency and, specifically, the agency disavows such representation in it's "Pro Se (Self-Help) Legal Clinic" Agreement. In part, the agreement states: "We ask you to acknowledge that you will not be assigned an attorney through the Pro Se Clinic and that you will be representing yourself with your legal problems. The Clinic provides you only with general advice and is not providing you with direct legal assistance." Participants have total control and custody of their own files and papers.
The inquirer agency poses two questions:
In a situation where a couple attends a self-help clinic to obtain a divorce or to resolve a custody issue, is there a conflict for the staff of the agency to help or assist both parties to the potential litigation?
This question is intimately associated with the first, where a self-help clinic participant has filed "pro se" litigation, is the agency prohibited from actively representing the other (non-"pro se") party in that litigation?
The first question that must be answered is whether a client-lawyer relationship exists between the legal services agency and the participants of the self-help clinics. The resolution of all other questions will flow from this answer.
As stated in the Commentary to MRPC l.0:
"Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so . . . . Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact."
MRPC 1.3, the Commentary, adds that doubt about whether a client-lawyer relationship exists should be clarified by the lawyer, preferably in writing, so the client will not be mistaken in supposing that the lawyer is looking after the client's affairs.
Under these circumstances, no client-lawyer relationship is established between the legal services agency and the participants of the self-help clinics:
clinics are conducted in a group setting, with 10 to 50 people at a time;
there is no individual consultation between the participants and the agency staff where confidential information is divulged;
the only personal information collected by the agency is done at the intake process to determine financial eligibility and, what type of relief the participant seeks;
the agency has declared in writing , and the participants are required to sign the agreement acknowledging that the agency does not represent them.
Inquirer agency's first question involves the possibility of a conflict of interest. Conflict of interest questions address: 1) whether any confidential information received from one client could be used to the detriment of that client or for the benefit of the other client; and, 2) whether the lawyer's professional judgment and the quality of the representation of either client would be adversely affected, including whether the working relationship with either client would be negatively affected.
MRPC 1.7(a) states:
"(a) a lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
"(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
"(2) each client consents after consultation."
MRPC 1.6 states in part:
"(a) 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
"(1) reveal a confidence or secret of a client;
". . .
"(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person unless the client consents after full disclosure.
"(c) A lawyer may reveal:
"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them.;
. . "
To answer the agency's first question, based on the facts presented, there is no conflict of interest for the staff of the legal services agency when a couple attends a self-help clinic to learn how to complete the necessary paperwork to obtain a judgment of divorce or child custody. RI-154.
The inquirer agency's second question is whether the agency is precluded from actively representing a client who is a party to "pro se" litigation that has been filed by one of the agency's former self-help clinic participants. In these particular situations, the parties are often alleging allegations of neglect and/or abuse.
MRPC 1.9 states in pertinent part:
"(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 consents after consultation.
". . .
"(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:
"(1) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 or Rule 3.3 would permit or require with respect to a client, or when the information has become generally known;
. . ."
As previously stated, a client-lawyer relationship is not established between the agency and the clinic participant, neither at the intake stage, nor during the clinic session. No facts have been established that indicate the clinic participant believed the agency was representing them. Quite to the contrary, they signed a written agreement acknowledging that the agency did not represent them.
Finally, no confidential information was divulged at the intake stage that would trigger MRPC 1.6(a) or 1.9(c). The only information taken at intake consists of facts that help determine the participant's financial eligibility, in addition to identifying them and what legal relief they seek. From these facts, it does not appear that any information protected by MRPC 1.6(a) was revealed.
Under some circumstances, discussion of a legal problem with a lawyer, or non-lawyer intake person acting for the lawyer, could create a client-lawyer relationship, if during the description certain confidential information or secrets were divulged. The lawyer would be precluded, under MRPC 1.6; RI-154, RI-230, RI-239, from using the information to the disadvantage of the individual, because a client-lawyer relationship would have been created. RI-123.
Because there was no client-lawyer relationship between the legal service agency and the "pro se," self-help clinic participant, the legal services agency is not disqualified from actively representing the other party to the "pro se" litigation.