May an attorney retained by an employees' association also represent the individual members on their personal legal problems?

Plain-English summary

A member asked about representing employees of a retail chain store in negotiations with their employer and on their individual legal problems. The employees would contribute to a central fund on a voluntary basis, and the attorney's compensation would be paid from the fund as a yearly retainer.

The committee agreed unanimously that it would not be improper for the attorney to represent the employees as an entity and to receive his compensation from the group as a whole. A majority, however, believed it would be improper under the circumstances described to render legal services to the individual employees. The committee quoted the second paragraph of Canon 35, which allows a lawyer to accept employment from an organization to render legal services in matters in which the organization as an entity is interested, but says that this employment "should not include the rendering of legal services to the members of such an organization in respect to their individual affairs." Citing Drinker's Legal Ethics, the committee explained that this furthers the rule that a lawyer's relation to a client should be personal and direct, and not subject to a lay intermediary; the concerns include commercialization of the profession and promotion of unauthorized practice. Drinker also observed that Canon 35 does not preclude representing individual employees where the employment was not the result of improper solicitation, the relationship is direct and personal, and the service is paid for by the individual client or pro-rated among the group. The committee suggested the plan might be permissible if revised to pro-rate each contribution based on the services rendered to the individual.

Currency note

This opinion was issued in 1961, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 35 of the Canons of Professional Ethics; a lawyer's professional independence from a lay intermediary and the furnishing of group legal services are now addressed primarily by Rule 4-5.4 of the Rules Regulating The Florida Bar (Model Rule 5.4). The committee itself flagged that the opinion's validity may be affected by United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer represent the association itself and be paid from the group fund?

A: Yes. The committee agreed unanimously that representing the employees as an entity and receiving compensation from the group as a whole would not be improper.

Q: What made individual representation of members a problem?

A: Under Canon 35's second paragraph, employment by an organization should not extend to legal services to its members on their individual affairs. The majority found that line crossed unless the relationship was direct and personal and the individual paid for the service, directly or pro-rata.

Q: Did the committee suggest any way the plan could work?

A: It suggested the plan might be permissible if revised to pro-rate each member's contribution based on the services required by and rendered to that individual.

Background and rules framework

The opinion applied former Canon 35 of the Canons of Professional Ethics, which addressed a lawyer's independence from lay intermediaries. The furnishing of legal services through an organization and a lawyer's professional independence are now addressed primarily by Rule 4-5.4 of the Rules Regulating The Florida Bar (Model Rule 5.4). The committee's analysis turned on whether the relationship with each member was direct and personal and on how the member paid for the service.

Citations and references

Rules of Professional Conduct:

• Canon 35 [Canons of Professional Ethics; see current Rule 4-5.4]

Cases:

• United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967), flagged by the committee as possibly affecting the opinion's validity

Other authorities:

• Drinker, Legal Ethics, p. 162

See also

• FL Bar Ethics Op. 70-48: ACLU as Group Legal Services
• FL Bar Ethics Op. 68-2: Legal Services Program Referral Versus Handoff
• FL Bar Ethics Op. 65-4: Partnership With a Nonlawyer for Agency Practice

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-61-5/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-61-5-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 61-5
July 18, 1961
Advisory ethics opinions are not binding.
While it is not improper for an attorney retained by an employees' association to represent the interests of such association, his representation of members individually is precluded by Canon 35 unless the traditional attorney-client relation is preserved and the individual pays the attorney's fees or pays the association on a pro-rata basis for services received.
Caveat: The validity of this opinion may be affected by United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967).
Canon: 35
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar inquires of the professional propriety of an attorney representing employees of a retail chain store in negotiations with their employer and with reference to their individual legal problems. We understand the employees would contribute to a central fund on a voluntary basis and that the attorney's compensation would be paid from the fund in the form of a yearly retainer.
The Committee agrees unanimously that it would not be improper for the attorney to represent the employees as an entity and to receive his compensation from the group as a whole. A majority of the Committee, however, believes it is improper under the circumstances described to render legal services to the individual employees.
The second paragraph of Canon 35 reads:
A lawyer may accept employment from any organization, such as an association, club or trade organization, to render legal services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of such an organization in respect to their individual affairs.
Drinker, Legal Ethics, page 162, presents an analysis of the problem and there points out:
This provision is obviously in furtherance of the admonitions in the first paragraph of the Canon that the lawyer's relation to his client should be personal, his responsibility to him direct, and not subject to the control or exploitation of any lay intermediary intervening between them. Consequences of such intervention, in addition to interference with the lawyer's intimate personal relation to his client, are the tendency to commercialize the profession, and promotion of the unauthorized practice of the law on the part of the organization by providing legal services and advice for its employees and members.
Drinker also observes, however, that Canon 35 does not preclude counsel from representing individual employees provided such employment has not been the result of improper solicitation and provided the relationship is direct and personal between employee and counsel (excluding the group) and the service is paid for by the individual client or pro-rated among the group.
Perhaps it would be permissible to follow the plan outlined if it were revised to provide for a pro-ration of the contribution based upon the services required by and rendered to the individual.