Should a legal services program file divorce suits for clients it cannot serve and then hand them off to private counsel?

Plain-English summary

An attorney employed by a legal services program funded by the Office of Economic Opportunity proposed to send all practicing attorneys in the area a form letter, and asked the committee to comment on its propriety. As described, the program intended to institute divorce proceedings on behalf of wives who were otherwise ineligible for the program, apparently because the prospective defendant husband's income, measured against Florida's statutory requirements for a husband to pay attorney fees, meant the wife was not indigent. The program would file the suit and then seek another attorney to proceed.

The committee noted a contradiction in the proposal: the letter described the wife as "unable to secure private representation" yet also contemplated placing the matter with private counsel. That uncertainty led the committee to question whether any ethical problem was actually presented.

The committee nevertheless observed that, if a significant number of attorneys were available in the area to represent such persons, it would be more appropriate to refer the wives directly to those attorneys in the first instance, in the manner of a legal referral agency and possibly in cooperation with the local bar association, which would eliminate needless change of counsel and delay.

Currency note

This opinion was issued in 1968, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canons 7 and 44 on the lawyer-client relationship and withdrawal. Termination and transfer of a representation are now addressed by Rule 4-1.16. Treat this page as historical context, not current guidance.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: Should a legal aid office open a case it cannot finish and then transfer it to a private lawyer?

A: Under this opinion, the committee considered it more appropriate to refer ineligible clients directly to available attorneys at the outset, rather than filing suit and then seeking private counsel, which would avoid needless change of counsel and delay.

Q: Did the committee find an ethics violation in the proposed letter?

A: The committee found the proposal internally contradictory and questioned whether any ethical problem was presented, while recommending the referral approach as the more appropriate course.

Background and rules framework

The opinion applied the former Canons 7 and 44, addressing the lawyer-client relationship and withdrawal, to a legal services program's plan to begin and then transfer cases. Declining and terminating representation, including transfer to other counsel, is now addressed by Rule 4-1.16 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.16.

Citations and references

Rules of Professional Conduct:

• Canons 7, 44 [Canons of Professional Ethics; withdrawal and transfer now in Rule 4-1.16]

See also

• FL Bar Ethics Op. 70-48: ACLU and Group Legal Services
• FL Bar Ethics Op. 72-31: Bar Referral Service Jurisdiction

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-2/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-2-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 68-2
April 4, 1968
Advisory ethics opinions are not binding.
It would be more appropriate for a legal services program in the first instance to refer parties ineligible for participation in the program to other agencies, rather than to institute divorce litigation on their behalf and then try to find another attorney to proceed with the litigation.
Canons: 7, 44
Chairman MacDonald stated the opinion of the committee:
An attorney employed by a legal services program, funded by the Office of Economic Opportunity, proposes to send a letter in the form of the attached specimen to all of the practicing attorneys in its area. We are requested to comment as to the propriety of this letter.
In essence it appears that the legal services program intends to institute divorce proceedings on behalf of wives, who apparently are otherwise ineligible for participation in the legal services program because of the criteria establishing economic qualifications for this program. Presumably this is because when the income of the prospective defendant husband is considered in the light of the statutory requirements prevailing in Florida for payment of attorney fees by such husband, the person is not indigent. Nevertheless, the suit would be instituted and then the legal services program would endeavor to procure another attorney to proceed with the matter.
There appears to be a contradiction in concept in that the letter speaks of the wife as being "unable to secure private representation" and then thereafter speaks in terms of placing the matter in the hands of private counsel.
This uncertainty of interpretation leads us to question whether any ethical problem is involved, but we nevertheless feel compelled to observe that it would be more appropriate, if in fact there are a significant number of attorneys available in the area to represent unfortunate persons falling into the described category, for the wives to be referred in the first instance directly to such attorney in the manner of a legal referral agency and possibly in cooperation with the local bar association. Thus this would eliminate needless change of counsel and delay of proceedings.
ATTACHMENT TO OPINION 68-2
Dear ___
In the course of our practice we have become increasingly aware of a problem which needs remedying. We are writing you to explain the problem and seek your advice and cooperation.
We receive many applications for assistance from wives who are in dire need of divorce, separate maintenance or similar actions. In many instances, the husband has income sufficient to allow him to pay an attorney, and we are unable to assist the wife. However, the wife in these cases may be totally without resources and thus unable to secure private representation.
We are proposing a solution to this problem. In these cases we are willing to begin the needed action from this office. Once the action is filed, the wife will be referred to a list of attorneys who would be willing to step into the case and seek attorney's fees from the husband.
It should be understood that we do not intend to file actions on this basis except in cases of real need. Further, we will make no efforts to influence the client's choice of attorney in these matters. It is our plan to prepare a list of all attorneys in the area who have indicated a willingness to participate in this program, and to furnish the client with a copy of this list.
Your comments on any aspect of this proposal will be appreciated, as would your reply, on the enclosed card, as to whether or not you wish to have your name placed on such a list.
Also enclosed is a copy of an advisory opinion rendered by the Ethics Committee of The Florida Bar.