Could a nonprofit Nebraska student senate retain a lawyer for the organization and individual student members?

Plain-English summary

Student senates at Kearney State College and the University of Nebraska proposed monthly retainers for counsel to represent the senate, including lobbying, and advise individual student members. One program contemplated an additional reduced fee for some student work.

The committee approved group legal services if the senate was nonprofit, the student was a member, legal service was incidental and reasonably related to the senate's primary purposes, and the senate received no financial benefit. The student, not the senate, had to be the lawyer's client in each matter, with the relationship free from senate control.

Whether the retainer covered the service entirely or the student paid a reduced additional fee did not affect the result. Nor did it matter whether the lawyer only advised the student or also appeared in court.

The opinion rested on then-controlling constitutional decisions protecting group access to legal services. It expressly tied its conclusion to those interpretations remaining in force.

Currency note

This opinion was issued in 1973, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent rule amendments, later opinions, or constitutional decisions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Who was the client in an individual student's matter?

A: The student member, not the student senate.

Q: Could the senate profit from providing the legal service?

A: No. The committee required that the organization derive no financial benefit.

Q: Could a student pay a reduced fee in addition to the senate's retainer?

A: Yes. The committee found it immaterial whether the retainer covered all services or a student paid an additional reduced fee.

Q: Did the arrangement cover court appearances?

A: It could. The opinion said the result did not depend on whether service was limited to advice or included court representation.

Background and rules framework

Former DR 2-103(D)(5) allowed certain nonprofit organizations to recommend, furnish, or pay for member legal services when constitutional law required it and the listed independence, purpose, and financial conditions were satisfied.

Citations and references

Former Nebraska Code of Professional Responsibility:

• DR 2-103(D)(5)
• Former Canon 35

Cases:

• NAACP v. Button, 371 U.S. 415, 83 S. Ct. 328 (1963)
• Brotherhood of Railroad Trainmen v. Virginia, 371 U.S. 1, 84 S. Ct. 1113 (1964)
• United Mine Workers v. Illinois State Bar, 389 U.S. 217, 88 S. Ct. 353 (1967)

See also

• Nebraska Ethics Op. 74-7: College campus referral service
• Nebraska Ethics Op. 80-6: Closed-panel prepaid legal plan
• Nebraska Ethics Op. 76-12: Credit-union legal-services plan

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 73-3

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 73-3

1) IT IS PERMISSIBLE FOR A LAWYER TO BE RETAINED BY A NON-PROFIT STUDENT SENATE ORGANIZATION TO PROVIDE LEGAL SERVICES TO THE SENATE AND ALSO TO PROVIDE GROUP LEGAL SERVICES TO THE STUDENT MEMBERS OF THE SENATE UNDER CURRENTLY EXISTING CONSTITUTIONAL INTERPRETATIONS, BUT ONLY IF: (A) THE RENDITION OF GROUP LEGAL SERVICE IS NOT A PRIMARY PURPOSE OF THE SENATE AND IS INCIDENTAL TO ITS PRIMARY PURPOSES, AND (B) THE SENATE DERIVES NO FINANCIAL BENEFIT FROM THE GROUP LEGAL SERVICES, AND (C) THE INDIVIDUAL STUDENT MEMBER, AND NOT THE SENATE, IS RECOGNIZED AS THE LAWYER'S CLIENT IN EACH INDIVIDUAL MATTER.

       CODE PROVISIONS INTERPRETED

DR 2-103(D). A law yer 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 legal person : . . . (5) Any other non-profit 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, and (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.

The above disciplinary rule is a clear departure from Cannon 35, which specifically provided that a lawyer might represent an organization on its legal matters, but such employment should not include legal service to the members of the organization in respect to their individual affairs.

FACTUAL SITUATION

The Committee has received inquiries from the student senate of Kearney State College and from the student senate of the University of Nebraska as follows.

Each senate wishes to engage (or has engaged) a lawyer for a monthly retainer to render the following services:

(a) To represent the senate on all legal matters including lobbying activities.
(b) To provide legal services to individual student members of the senate on their individual legal problems. The fee for such services is to be included in the retainer (or optionally in the case of
Nebraska University, where there may be an additional fee charged a student at a reduced pre-arranged rate).
(c) The attorney will be available for such student consultations on campus at specified periods of time.

DISCUSSION

DR 2-103(D)(5) would appear to permit the proposed group legal service if we are correct that the following assumptions do in fact exist: (a) That the senate is a non-profit organization, (b) that the student seeking legal assistance is in fact a member of the senate, (c) that the rendition of legal service is not a primary purpose of the organization but is only an incidental one, (d) that the senate derives no financial benefit from the group legal service, and (e) that the attorney at all times maintains his personal and unfettered relationship of attorney and client with the individual student, and is thus free of all control by the senate.

It would appear immaterial as to whether the group service was fully included in the retainer fee or whether the individual students might pay an additional reduced fee. The Kearney senate indicated that the lawyer would merely give advice but would not represent the student (presumably in court). Under the disciplinary rule, it appears to be immaterial whether the service involves mere counseling or court appearances.

The disciplinary rule is conditioned upon the fact that the "controlling constitutional interpretation at the time of the rendition of the services requires the allowance of such legal service activities." This opinion is based upon current U. S. Supreme Court decisions apparently recognizing the prior and paramount needs of individuals to legal services. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328 (1963); Brotherhood of R.R. Trainmen v. Virginia, 371 U.S. 1, 84 S.Ct. 1113 (1964); United Mine Workers v. Illinois State Bar, 389 U.S. 217, 88 S.Ct. 353 (1967). It is conceivable that a reversal of the above decisions would also reverse the approval of group legal services under the conditions imposed by the disciplinary rule.

Nebraska Ethics Advisory Opinion for Lawyers No. 73-3