Thursday, May 22, 2008

Giving Advice Establishes Attorney-Client Relationship

The New Jersey Advisory Committee on Professional Ethics opines that a non-profit trade association cannot disclaim the formation of an attorney-client relationship with persons who call in on a hot line for legal advice from an attorney that the association compensates for her time. The result is not affected by the adoption of RPC 6.5:

Inquirer represents a nonprofit trade association that wants to set up a legal hotline, staffed by attorneys, to provide short-term, limited legal services to its members, with no expectation of continued representation in the matter. The nonprofit association would compensate the attorneys on either a flat fee annual basis or an hourly rate for the services for its members. The attorneys would be paid by the association, and no formal conflict check would be done on receipt of an inquiry from an association member. Association members would be advised in writing that no attorney-client relationship arises, and any potential conflict of interest would be waived by the member unless the attorney providing the advice knows there is a conflict.

Inquirer expresses the view that ACPE Opinion 671, 133 N.J.L.J. 1370 (April 5, 1993), 2 N.J.L. 535 (April 5, 1993), does not apply to its inquiry due to the subsequent adoption of RPC 6.5. Opinion 671 expressly provides that an attorney-client relationship ordinarily arises during one-on-one discussions between a lawyer and a person seeking legal advice, and found that an organization cannot disclaim the attorney-client relationship. Opinion 671 further noted that organizations providing legal services to its members or beneficiaries, where the attorneys providing the advice are paid, ordinarily must adhere to the provisions of RPC 7.3(e)(4) and register with the Supreme Court.

The Committee concludes that RPC 6.5 does not supersede Opinion 671 and the Opinion is, in fact, fully applicable to this inquiry.  RPC 6.5 provides that a lawyer who is participating in a program sponsored by a nonprofit organization or court by providing short-term limited legal services without an expectation of continued representation is not subject to strict application of RPC 1.7, RPC 1.9, and RPC 1.10.  Specifically, a conflict arises under these Rules only when the lawyer knows that the representation of the client involves a conflict of interest, and conflicts are imputed to the firm only when the lawyer knows that another lawyer in his or her firm would be disqualified from representing the client. RPC 6.5(a)(1) and (2).

(Mike Frisch)

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