MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2007-05
MSBA/YLS Disaster Relief Committee
In your capacity as Chair of the Maryland State Bar Association Young Lawyers’ Association Disaster Relief Committee, you have asked for an opinion of this Committee to guide the Disaster Committee in its work. Specifically, you believe that an opinion of this Committee will help volunteer lawyers to understand better their ethical responsibilities when acting as volunteers. In addition, you believe that our opinion may strengthen the program’s ability to respond to disaster situations by assisting in the development of appropriate training for your volunteers. This inquiry was considered by the Committee at its meeting on September 6, 2006, and I have been asked to respond to you on behalf of the Committee.
A. BACKGROUND
In seeking our guidance, you have provided the following background The Disaster Committee has an established Disaster Legal Assistance Program (“the Program”). Your inquiry advises us that under the Terms of Agreements reached respectively between the American Bar Association Young Lawyers Division (“ABA YLD”) and the Office of Disaster Assistance Programs of the Federal Emergency Management Agency (“FEMA”) and between the ABA YLD and the National Transportation Safety Board (“NTSB”), the Young Lawyers’ Section of the Maryland State Bar Association is forming a network of volunteer attorneys to provide free legal services to victims of federally declared disasters and major transportation disasters in the State.
We understand from your inquiry that following a federally declared disaster or a declared major transportation disaster in the State of Maryland by FEMA or the NTSB, respectively, a “help line” will be established for affected victims who seek emergency legal assistance. That assistance may be limited to information or advice on issues raised in a specific request or it may entail full legal representation to indigent disaster victims on a pro bono basis. Volunteer lawyers will be asked to volunteer their time by providing legal information and advice in a number of different areas, including assistance with insurance claims, counseling on landlord/tenant problems, assistance with home repair contracts, assistance with consumer protection matters and counseling on mortgage foreclosure problems and a number of other areas.
To assist us in our evaluation of your inquiry, you have provided to us a copy of the Disaster Legal Assistance Program Response Plan Manual, prepared by the Disaster Relief Committee, to be used by Chairs of said Committee and others. That manual indicates, among other things, that a volunteer lawyer, where feasible, will be expected to be on site at disaster recovery centers at which victims of disasters can obtain information and services from various agencies and individuals to help in coping with the disaster. A legal desk is to be established at each disaster relief center and it is expected that that legal desk will be staffed each day by volunteer lawyers while the disaster relief center is open. Volunteer lawyers will be expected to answer commonly asked questions and to provide telephone numbers, pamphlets and other information that may be of assistance to disaster victims seeking legal guidance.
Your manual indicates that volunteer lawyers are expected to maintain careful notes regarding intake, recommendations and dispositions of each matter and information regarding advice given is to be collected by co-chairs of the program at the end of each day.
B. ETHICS GUIDANCE
In your inquiry, you have asked this Committee to provide information which may be a guide to the Disaster Committee as to the ethical responsibilities of volunteer lawyers. Your inquiry refers to an opinion of the Louisiana State Bar Association, Rules of Professional Conduct Committee (Public Opinion 05-RPCC-005, a copy of which is attached hereto as Exhibit A). In that opinion, that Committee identified a number of issues under the Rules of Professional Conduct of concern to volunteer lawyers. The opinion refers specifically to the Rule dealing with competence, (Rule 1.1); the Rule relating to providing short term limited legal services (Rule 6.5); the Rule addressing concerns relating to persons already represented by counsel (Rule 4.2) and the Rule prohibiting profit motivated solicitation by volunteer lawyers (Rule 7.1). This Committee shares the concerns expressed by the Louisiana Committee under each of these Rules, which parallel the respective Rules and the Maryland Rules of Professional Conduct. We see no point reiterating the concerns that have been expressed in the Louisiana opinion but would echo those as concerns for your volunteer lawyers. In addition, we believe that your volunteer lawyers should be aware of the following additional concerns under the Maryland Rules of Professional Conduct:
- Consent to limited representation -Rule 1.2(c) of the Maryland Rules of Professional Conduct provides that a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. Please note that the comments under Rule 6.5 of the Maryland Rules of Professional Conduct, Comment [2], provide that [“A] lawyer who provides short-term limited legal services pursuant to this Rule must secure the client’s informed consent to the limited scope of representation …”. The Comment also states that if the short term limited representation is not reasonable, then the lawyer may offer advice, but must also advise the client of the need for further assistance. Your volunteer lawyers need to be sensitive to the expectations and the state of stress of the clientele they are serving. In that regard, you may want to prepare a form document that explains the limitations on the representation that would be provided and that could be sent to persons who make inquiries on the hotline and/or persons for whom pro bono services are being provided, so that they are aware of the limitations of the representation and may be counseled as to whether they need to obtain further representation.
- Duties to prospective clients -The most recent amendments to the Maryland Rules of Professional Conduct resulted in the incorporation of Rule 1.18 dealing with the duties to prospective clients. Your volunteer lawyers need to be sensitive to the fact that if they discuss forming a client-lawyer relationship with an inquirer or a pro bono client, a prospective client relationship is established even if no client-lawyer relationship ensues. It is imperative, therefore, that information, as complete as possible, be maintained as to the identities of the inquirers, their addresses, the nature of the inquiry and the type of information provided to avoid having your lawyers be placed in a potential conflict situation after the short term representation is concluded.
- Avoidance of misconduct. Your volunteer lawyers need to understand the proscriptions contained in Rule 8.4 of the Maryland Rules of Professional Conduct. In particular, we would draw your attention to subparagraphs ( e) and (f) of Rule 8.4 of the Maryland Rules of Professional Conduct which provide that it is professional misconduct for a lawyer to:
(e) knowingly manifest by words or conduct when acting in a professional capacity bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status when such action is prejudicial to the administration of justice, provided, however, that legitimate advocacy is not a violation of this paragraph;
(f) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Maryland Lawyers’ Rules of Professional Conduct or other law.
Your volunteers should be encouraged to review these provisions and the comments thereunder before commencing their volunteer activities.
- Clients with diminished capacity. Our Rules of Professional Conduct, and specifically Rule 1.14, provide guidance to a lawyer dealing with clients with diminished capacity. In a crisis situation, your volunteer lawyers need to be sensitive to the requirements of Rule 1.14. It may not be clear to a volunteer lawyer, when receiving a hotline call or being asked to provide pro bono service, that the client may be subject to diminished capacity for one reason or another. We would draw your attention in particular to subparagraphs (a) and (b) of Rule 1.14 which provide as follows:
(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.
You may want to have available to your volunteer lawyers a list of “crisis consultants”, such as psychologists, social workers or others whose assistance may be important for the lawyers to understand better how they can best serve those with diminished capacity.
- Communication. In a crisis situation, particularly given the demands that may be placed on your volunteer lawyers, it is important to ensure that a mechanism is established to provide continuing communication to clients and prospective clients, particularly if a pro bono representation is going to be undertaken which is more comprehensive than a hotline inquiry. Rule 1.4 of the Maryland Rules of Professional Conduct provides, among other things, that a lawyer is obliged to keep the client reasonably informed about the status of the matter. Given the laudable purposes to be served by this Rule, we think it is important for your Committee to assist your lawyers ensure that there is some procedure for maintaining contact with clients and prospective clients so as to keep them reasonably informed as to matters that may bear upon any continuing representation.
CONCLUSION
While we obviously could engage in a more comprehensive review of the entirety of the Maryland Rules of Professional Conduct and provide guidance under each Rule, the foregoing are the areas that would be of primary concern to your volunteer lawyers and about which this Committee recommends caution. In addition, given the wealth of experience that exists in Maryland with the Maryland Volunteer Lawyers Service, we suggest that you consult with that organization about the processes and procedures it has in place for overseeing and administrating existing programs dealing with lawyers who provide volunteer service in this State.
Thank you for your inquiry to this Committee and we trust that the foregoing will assist you in your analysis. We are happy to provide further guidance if other specific concerns occur to you.
REFERENCES:
Louisiana State Bar Association, Rules of Professional Conduct Committee
(Public Opinion 05-RPCC-0055)
Maryland Rules of Professional Conduct
Rule 1.1
Rule 6.5
Rule 4.2
Rule 7.1
Rule 1.2(c)
Rule 1.18
Rule 8.4
Rule 1.14
ASSIGNED TO: Thomas E. Lynch, III
DATE ASSIGNED: August 11,2006
DATE DISTRIBUTED:
September 6, 2006
September 14, 2006