Is the ACLU of Florida a group legal services organization that Florida lawyers may cooperate with under the ethics rules?

Plain-English summary

Members of The Florida Bar asked whether the ACLU of Florida was an organization within DR 2-103(D)(5), which would have brought it under Article XIX of the Integration Rule governing organizations that recommend, furnish, or pay for legal services. DR 2-103(D)(5) covered nonprofit organizations only where controlling constitutional interpretation required allowing the activity, and only if conditions were met, among them that the organization's primary purposes did not include the rendition of legal services.

The committee concluded that the ACLU of Florida was not an organization within DR 2-103(D)(5). It reasoned that one test of the rule was that the organization's primary purpose not include rendering legal service, and that the Florida ACLU did not meet that test because providing legal service was its primary purpose. The committee also considered whether the ACLU fit the "legal aid office" category of DR 2-103(D)(1)(b), which required sponsorship by a bona fide nonprofit community organization, and found it did not maintain the community structure that category contemplated, even though it handled what amounted to legal aid cases. The committee stated that its opinion rested on the representations in the ACLU's submitted memorandum, and gave the caveat that the ACLU must keep its activities within a legal-aid classification or it could become subject to other portions of the CPR.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (DR 2-103(D)) and the former Integration Rule. The rules governing a lawyer's cooperation with organizations that recommend or furnish legal services have since been substantially revised. Treat this page as historical context, not current guidance.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: Did the ACLU of Florida count as a group legal services plan under the old rules?

A: No. The committee held the ACLU of Florida was not an organization within DR 2-103(D)(5), in part because its primary purpose was providing legal service, which the rule's group-legal-services category excluded.

Q: Was the ACLU treated as a legal aid office instead?

A: The committee considered DR 2-103(D)(1)(b) but found the ACLU did not fit, because it did not maintain the community structure a sponsored legal aid office required, even though it handled some legal-aid-type cases.

Q: Was the conclusion unconditional?

A: No. The committee stated the opinion was based on the representations in the ACLU's memorandum and warned that the ACLU had to restrict its activities to legal-aid-type work or it could fall under other portions of the CPR.

Background and rules framework

The opinion applied DR 2-103(D) of the former Code of Professional Responsibility and Article XIX of the Integration Rule, which governed when a lawyer could cooperate with an organization that recommends, furnishes, or pays for legal services. Subsection (D)(5) addressed nonprofit organizations and subsection (D)(1)(b) addressed legal aid offices. These subjects are now treated under the lawyer-referral and group-services provisions of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 7.2.

Citations and references

Rules of Professional Conduct:

• DR 2-103(D)(1)(b), (D)(5) [Code of Professional Responsibility]

Other authorities:

• Integration Rule, Article XIX [The Florida Bar]

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-48/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-48-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-48
December 9, 1970
Advisory ethics opinions are not binding.
American Civil Liberties Union of Florida is not a provider of group legal services within the meaning of DR 2-103(D).
CPR: DR 2-103(D)(1)(b), D(5)
Integration Rule: Art. XIX
Chairman Massey stated the opinion of the committee:
Members of The Florida Bar have inquired of this Committee whether or not the American Civil Liberties Union of Florida is an organization which comes within CPR DR 2-103(D)(5) and therefore is controlled by Article XIX of the Integration Rule. For clarity at this juncture, the provision cited is as follows:
(D) A lawyer shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of his services or those of his partners or associates. However, he may cooperate in a dignified manner with the legal service activities of any of the following, provided that his independent professional judgment is exercised in behalf of his client without interference or control by any organization or other person. . . .
(5) Any other nonprofit organization that recommends, furnishes or pays for legal services to its members or beneficiaries, but only in those instances and to the extent that controlling constitutional interpretation at the time of the rendition of the services requires the allowance of such legal service activities, and only if the following conditions, unless prohibited by such interpretation, are met:
(a) The primary purposes of such organization do not include the rendition of legal services.
(b) The recommending, furnishing, or paying for legal services to its members is incidental and reasonably related to the primary purposes of such organization.
(c) Such organization does not derive a financial benefit from the rendition of legal services by the lawyer.
(d) The member or beneficiary for whom the legal services are rendered, and not such organization, is recognized as the client of the lawyer in that matter.
(e) The organization has procured the approval of the Board of Governors of The Florida Bar pursuant to Article XIX of the Integration Rule of The Florida Bar and the By-Laws promulgated thereunder.
The Committee observes that this provision refers to "group legal services" and the Committee will not attempt to define the term as it has many and varied meanings to different people. However, the Committee does conclude that the American Civil Liberties Union of Florida is not at this juncture to be regarded as an organization within the purview of DR 2-103(D)(5).
Briefly, the ACLU has existed for many years and has not been the subject of any substantial criticism in being an improper intermediary between lawyer and client. Prior to recent controversies over certain publicly funded "legal aid" programs, few, if any, would have regarded the ACLU as being violative of old Canon 35. It should be pointed out that the ACLU does not always restrict its services to those who are unable to retain legal services, but from time to time will inject itself into litigation as an amicus curiae. This type of activity in championing causes which relate to liberties as construed by the organization as relating to criminal due process, equal protection of the law and freedom of expression and conscience are not of the type contemplated or affected by DR 2-103(D)(5).
One of the tests of the cited disciplinary rule is that the organization be one which as a primary purpose does not include the rendition of legal service. Clearly the Florida ACLU does not meet the test as its primary purpose is to provide legal service. The obvious answer is that the organization is not within subsection (5).
The Florida ACLU is an organization which does not appear to be specifically considered by the CPR.
It might be argued that the Florida ACLU is more nearly a legal aid office. See CPR DR 2-103(D)(1)(b). The cited provision refers to a legal aid office "operated or sponsored by a bona fide non-profit community organization. . . ."
Obviously, the ACLU does not specifically fit in this category as it does not maintain a community structure as intended within the CPR in broad analysis, however, the Florida ACLU does in many instances handle, for want of better terminology, "legal aid" cases.
The Florida ACLU submitted an extensive memorandum concerning its history, procedures and participation in litigation as the same would concern its position within the framework of Article XIX of the Integration Rule and the CPR. This opinion is based on the representations contained in said memorandum. Therefore, this opinion is given with the caveat that the Florida ACLU must restrict its activities to fall within a classification of legal aid activities or it may well become subject to other portions of the CPR should it extend itself beyond its normal historical activities.