Checking for Conflicts on the “Legal Hotline”

As a brand-spanking-new lawyer in San Mateo, CA back in the early ’90’s, I was super-anxious to learn anything and everything about the practice of law. I defended every deposition I could. I argued mundane motions. I attended a status conference that almost turned into a fistfight.

Yes, I thought litigation was awesome – until I discovered that litigators actually spent most of their time not in court, but in dealing with pissing matches over pointless bullshit.

Which is why I’m no longer a litigator.

But I digress. Back there in the day, working for a nine-lawyer general practice law firm in San Mateo, CA (the awesome Fox, Shjeflo, Hartley & Babu), I wanted to get as much experience as a lawyer, as quickly as I could. So a couple of days a month I would work for a few hours at the San Mateo County Bar’s law clinic. Sitting at a table at the library in Redwood City, I – a newbie lawyer with all of 3-4 months’ experience – I would deal with whatever legal issues walked in.

It was awesome.

Mind you, this was pre-internet. I couldn’t just hit up Google and figure out how to file a guardianship petition, or whatever. But it was a great way to test my legal knowledge, analysis, and on-the-fly research abilities. And it really helped develop my sense of “what does the client really want to achieve?” Because it doesn’t really matter what your cold legal rights are – what matters is what outcome you’re trying to achieve. There’s a world of difference between “exact maximum revenge” and “move on happily with my life.” Ultimately, desired outcomes are most important, and I learned very early, in that library meeting room, that my mission as a lawyer wasn’t so much to “valiantly vindicate the client’s legal rights” as it was to get them to the place they needed to be in their life.

But I digress.

One of the really interesting things about working in the library legal clinic was the sheer variety of matters you’d face. I mean, sometimes there would be a dozen or more people waiting to get legal advice. It seemed crazy to me then. But I realize now how hard it is for most people to get access to legal services.

Some years after my early days working the legal clinic, the ABA adopted Model Rule 6.5, which has since been adopted by most states. Rule 6.5 attempts to make it easier for “legal advice hotlines” and other forms of quick, legal-clinic-like guidance to flourish. The rule does two important things with respect to conflicts: it effectively removes the obligation of the clinic lawyer to run a conflict check prior to providing advice, and it keeps information possessed by one hotline attorney from being imputed to another (and thus potentially conflicting the hotline out entirely from providing advice in the matter).

As you’d expect, this beneficence is not without limit. Attorneys providing such advice can’t ignore conflicts they are actually aware of, and all of the rules around conflicts spring back into play should the limited-scope guidance of the hotline turn into full-scope legal representation.

It’s also fair to ask how this rule should be squared with Rule 1.2(c), which allows for limited-scope representation but in many formulations requires procedural formalities (like written fee agreements) that are ill-suited to a brief telephonic or online advice session. One would hope that such rules would be interpreted in a way that provides maximum access to justice while preserving consumer safeguards. For example, a fee agreement (provided it isn’t larded down with regulated disclosure language) could be communicated and agreed to, verbally or electronically, at the outset of a call.[ref]Note that while I believe it is questionable whether the advice given on a legal hotline call is actually “the practice of law” in the first place, this doesn’t mean reasonable consumer protection regulations – like avoiding conflicts and requiring confidentiality – couldn’t apply to it.[/ref]

But Rule 6.5 also has this curiosity: it is limited to court-sponsored or nonprofit providers of legal advice hotlines. Neither the rule itself nor its included commentary offer any illumination on why this limitation is included. Rule 6.5 was added during the ABA’s “Ethics 2000” initiative, and the new rule engendered far less discussion than the other rule additions and changes. The Reporter’s Explanation of Changes offers this:

“The Commission believes that the proposed relaxation of the conflict rules does not pose a significant risk to clients when the lawyer is working in a program sponsored by a nonprofit organization or a court.”

The reasons for this belief will remain shrouded in mystery. One commentor – the Brennan Center for Justice – noted the unfairness of relaxing the ethical standards only for organizations serving the indigent, and suggested that one solution was to relax the conflict rules for all attorneys providing such services.

The minutes of the Commission’s meetings don’t reveal that these concerns were ever addressed. In my experience, that’s not unusual. My guess is that this limitation stems from nothing more than inertia: such legal advice hotlines have, historically, only been offered by court-sponsored and nonprofit organizations. The rule was drafted to apply only to such programs, and the Ethics 2000 Commission focused its attention on more contentious changes to the ethics rules.

But what if a law firm wanted to provide such a service? Or a group of enterprising solos, who pooled their marketing budgets and used it as a way to reach a broadly underserved market?

Or what if attorneys just did it themselves, powered by a technology and marketing platform that brought these limited-scope legal advice calls to them?

Ensuring that major or obvious conflicts don’t exist is a good idea, regardless of what the rules say. But being able to be more relaxed about it, to simply do a high-level, cursory pass before taking the call, would make it a lot easier for lawyers to get comfortable with providing legal-clinic-like advice to a whole bunch of consumers.

So here’s another thought for the expanding list of regulatory changes to enhance access to justice: take the Brennan Center’s suggestion and amend rule 6.5 so that it applies to ALL “legal hotline” programs – regardless of who is operating them.