Representation of Adverse Interests by Legal Services Lawyers
Adopted: April 23, 1999
Opinion rules that lawyers in different field offices of Legal Services of North Carolina may represent clients with materially adverse interests provided confidential client information is not shared by the lawyers with the different field offices.
Inquiry:
Currently, Legal Services of North Carolina (LSNC) is a confederation of 12 individual nonprofit corporations serving 12 different geographic areas in North Carolina. There is also a separate corporation called Legal Services of North Carolina that distributes funding to the 12 nonprofit corporations and oversees the use of the funding in accordance with federal and state law. The mission of LSNC is to provide free legal representation to poor people in civil matters and thereby ensure access to justice and contribute to the stability of society. The types of cases handled by legal service programs include family (most involve domestic violence), housing, income maintenance, consumer, and employment law. Despite funding by a variety of sources and an attorney pay scale much lower than other government attorney pay scales, the ratio of staff attorneys to poor people throughout the state of North Carolina in 1996 was 1:15,000. Many clients with meritorious cases go unserved simply due to lack of resources.
The 12 individual nonprofit corporations will consolidate into one corporation effective January 1, 1999. Following consolidation, the central administrative office of the corporation will control general administrative, accounting, and purchasing functions, as well as oversee the use of federal and state funds by the local programs or field offices. The local programs will continue to serve their separate geographic areas. They will retain substantial autonomy particularly in the area of determining what cases to accept, representation of clients, and the employment of staff attorneys and other local employees. Each local field program will have its own board of trustees composed of local attorneys and client representatives. Each board will oversee the operation of its own local field program and determine the types of cases the local program may accept for representation. Each local program will continue to maintain its own individual client files. Confidential information contained in these client files is accessible to other local legal service programs only in rare cases such as co-representation or during peer review evaluations. Safeguards will be put in place to ensure that no conflict of interest exists in any case prior to the disclosure of confidential client information to an employee of another local program. Safeguards will also be put into place to ensure that the central administrative staff does not have access to confidential client information in cases in which different local programs represent clients with adverse interests.
Consolidation of the 12 individual nonprofit corporations raises the issue of whether lawyers employed in the separate local field programs constitute one law firm for the purpose of representing clients with materially adverse interests. Legal service clients do not have funds to pay for representation. Only a few lawyers are willing to take cases on a pro bono basis. If low income opponents in litigation live in different geographic service areas, one party will be forced in many cases to appear without representation if different legal service programs are allowed to represent only one party. Moreover, checking the client records of each of the 12 local programs for potential conflicts of interest among individual local programs will be costly and burdensome.
Given the physically different locations of the local field programs, the inaccessibility of confidential client information among the local field programs, and the potential lack of representation to some low income clients if representation of opposing parties is not permitted, may different local legal service programs represent clients with materially adverse interests after consolidation on January 1, 1999?
Opinion:
Yes, provided there is no sharing of confidential information of clients with adverse interests who are represented by different local programs.
Rule 1.10 of the Revised Rules of Professional Conduct imputes disqualifications to lawyers who are associated for the practice of law. Subparagraph (a) of the rule provides as follows: [w]hile 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, 1.8(c), 1.9, or 2.2." The rule presumes that lawyers in a law firm, or other types of associations, have access to each others' confidential client information and share that information for the purpose of facilitating the representation of clients. Comment [1] to Rule 1.10 observes that the term "firm" "includes lawyers in a private firm, lawyers in the legal department of a corporation, or other organization, or lawyers in a legal services organization." But, the comment continues, "whether two or more lawyers constitute a firm within this definition can depend on the specific facts . . . . furthermore, it is relevant in doubtful cases to consider the underlying purpose of the rule that is involved." In comment [3], the application of the rule to lawyers in a legal service organization is considered more fully: "…lawyers employed in the same unit of a legal service organization constitute a firm, but not necessarily those employed in separate units. As in the case of independent practitioners, whether the lawyers should be treated as associated with each other can depend on the particular rule that is involved and on the specific facts of the situation."
As a matter of public policy, impediments to the legal representation of people of low income should be eliminated when the purposes of the Revised Rules of Professional Conduct—protection of client confidences and maintenance of a lawyer's independent professional judgment—are not adversely affected. As long as the local field programs of LSNC are physically separate and do not act as a single unit, the representation of adverse parties by different field offices will not impair the lawyers' duty of loyalty to their respective clients. Moreover, if client files are maintained separately and confidential client information is not shared, the duty of confidentiality will not be impaired. Legal service lawyers, unlike lawyers in a multiple office private law firm, do not have a common economic interest. Therefore, independent professional judgment will be maintained despite the representation of adverse parties by lawyers in different field offices. For these reasons, lawyers with the different local service programs of LSNC may represent clients with materially adverse interests subsequent to the consolidation provided confidential client information relative to the adverse parties is not shared by the different offices.