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Ethics Opinions from the Bar Association of San Francisco

OPINION 1976-1

A federally funded legal services office's policy that certain litigation cannot be commenced without review by and concurrence of its Director of Litigation does not restrain unethically the staff attorneys' independence of judgment, or violate attorney-client confidentiality. However, the application of the policy could result in prejudice to the client's interests.

QUESTION:

Does the policy of a federally-funded legal services office, under which certain litigation cannot be commenced without review by and concurrence of its Director of Litigation, restrain unethically the staff attorneys' independence of judgment, violate attorney-client confidentiality, or prejudice the client's interests?

DIGEST:

The policy does not appear to restrain unethically the staff attorneys' independence of judgement or violate attorney-client confidentiality. However, the application of the policy requiring concurrence of the Director of Litigation after initiation of representation could result in prejudice to the client's interests.

DISCUSSION:

The inquirer is a California attorney employed by a federally-funded legal services office as Director of Litigation, and supervises the staff attorneys. Under the described policy, no "impact litigation" may be commenced without the Director's prior concurrence. He defines "impact litigation" as "any class action, any nonroutine U.S. District Court action, any appeal or petition to the state or federal appellate courts (except small claims appeals), and any other litigation which will have a significant impact upon our clients generally."

The Committee is advised that, "where extraordinary urgency necessitates commencement of impact litigation prior to obtaining the concurrence of the Director of Litigation, the prior concurrence of the managing or supervising attorney must be obtained, and the client should be informed that continued prosecution of the litigation is dependent upon the concurrence of the Director of Litigation."

The Director first inquires whether the described policy will restrict unethically the staff attorneys' independence of judgment. ABA Disciplinary Rule 5-107(B) and Ethical Considerations 5-21 and 5-23 treat this subject. DR 5-107(B) states that:

"A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services."

ABA Formal Opinion 334 (1974) would appear to be dispositive of the issue. It holds that a client who seeks assistance from a legal services office:

".has a lawyer-client relationship with its staff of lawyers which is the same as any other client who retains a law firm to represent him. It is the firm, not the individual lawyer, who is retained.Staff lawyers of a legal services office are subject to the direction of and control of senior lawyers, the chief lawyer, or the executive director (if a lawyer), as the case may be, just as associates of any law firm are subject to the direction and control of their seniors. Such internal communication and control is not only permissible but salutary. It is only control of the staff lawyer's activities by an external source that is improper."

The Director is an employee of the legal services office which he supervises. Consequently, his control over impact litigation would not appear to constitute an unethical restraint on the independence of judgment of staff attorneys.

The Director next inquires whether the policy will violate attorney-client confidentiality. The Director of Litigation will review files of the staff attorneys, at least some of which will contain confidential information. Cal. Bus. & Prof. Code Sec. 6068(e) states that:

"It is the duty of an attorney.(e) to maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client."

ABA Formal Opinion 334 would also appear dispositive of this issue. As the attorney-client relationship is between the staff and client, and the Director of Litigation is a member of the staff, disclosure of confidential information to the Director would not appear to violate attorney-client confidentiality.

The Director also inquires whether the policy will prejudice the client's interests. Under the policy, it appears that the staff may accept a case, in situations of extraordinary urgency, subject to later concurrence by the Director.

Rule 2-111(C) of the California Rules of Professional Conduct provides that a member of the State Bar may not request permission to withdraw in matters pending before a tribunal, and may not withdraw in other matters, unless such a request or withdrawal is for a reason stated in that Section. The inquiry does not make clear the criteria for the Director's concurrence. If the criteria do not fall within the terms of Section 2-111(C), it would appear appropriate that the staff be prohibited from accepting a case until the requisite concurrence of the Director has been obtained.

The inquirer has also sought the opinion of this Committee as to ramifications of those ethical considerations described hereinabove on a policy under which legislative advocacy would not be undertaken by the office without his prior concurrence. The ramifications would appear to be identical to those discussed with respect to impact litigation.

 

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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