Ezel / Ethics Opinions / NYC-BAR
NYC-BAR June 21, 2017

When a legal aid lawyer gives brief advice through a social worker for a low-income client, what ethics rules apply?

Short answer: If the brief help creates an attorney-client relationship with the individual, the lawyer must avoid conflicts, get informed consent to a reasonable limited-scope representation, and provide competent advice; under Rule 6.5 the lawyer need not run a firm-wide conflict check and is conflicted only by conflicts she actually knows about.

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This page answers the general question as of 2017. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2017
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The opinion addresses a common legal services arrangement: a non-profit organization's lawyers field calls from non-lawyer social-services professionals (caseworkers) who reach out on behalf of low-income individuals, often a single phone call advising on how an individual should answer particular questions on a Medicaid application. The lawyer may never meet or speak with the individual. The committee analyzes the scenario where the caseworker acts as the individual's agent (not the lawyer's client and not the lawyer's employee) and the interaction creates an attorney-client relationship between the lawyer and the individual.

The committee makes a threshold point that the lawyer and caseworker should share an understanding of their roles: the caseworker is the individual's agent in seeking advice, and the lawyer serves, however briefly, as the individual's lawyer, not the caseworker's. It then walks through three duties. First, conflicts: ordinarily Rules 1.7 and 1.10 would require a firm-wide check, but Rule 6.5 relaxes this for "short-term limited legal services" provided "under the auspices of a program" sponsored by a non-profit legal services organization. Under Rule 6.5, the lawyer need not run a Rule 1.10(e) firm-wide conflict check and is bound by the conflict rules only where she has actual knowledge of a conflict at the outset. The committee reads "program" broadly, concluding that an organization's regular practice of giving brief advice to caseworkers on defined subjects (such as Medicaid) during office hours qualifies.

Second, limited scope: Rule 6.5(d) and Rule 1.2(c) require informed consent to a reasonable limited-scope representation. The committee, citing Comment [7] to Rule 1.2 and its own Op. 2016-2, concludes a brief telephone consultation can be reasonable, and explains what the individual should be told (that the lawyer's role is limited to the questions posed, that the lawyer is not ongoing counsel, and that there are risks of miscommunication through an intermediary). Consent may be conveyed through the caseworker, with confirmation that the caseworker relayed it and has authority to engage the lawyer. Third, competence: under Rule 1.1, the lawyer must reasonably believe the caseworker's role as intermediary will not prevent competent advice, and must take remedial steps, or decline or terminate, if she has reason to believe the caseworker is mistransmitting facts or advice.

In practice

Under this opinion, conduct in which a legal services lawyer provides brief advice through a caseworker who serves as the individual's agent is governed, if an attorney-client relationship arises, by the duties of conflict-avoidance, informed consent to limited scope, and competence as those rules stood at the time of the opinion. The opinion holds that Rule 6.5 applies to this kind of short-term limited service, so the lawyer is conflicted only by conflicts she actually knows of at commencement and need not perform a firm-wide Rule 1.10(e) check. It holds that a single phone consultation can be a reasonable limited-scope representation under Rule 1.2(c) when the client is informed of the limits and consents (which may be conveyed through the caseworker), and that under Rule 1.1 the lawyer must reasonably believe the caseworker's intermediary role will not undermine competent advice.

Common questions

Q: Does giving brief phone advice through a caseworker create an attorney-client relationship?

A: It can. The opinion analyzes the scenario where it does and explains the resulting duties. It also distinguishes giving legal "information" (which may not form a relationship) from giving fact-specific legal "advice" tailored to the individual's circumstances, which is more likely to.

Q: Do I have to run a full firm-wide conflict check before giving this kind of advice?

A: No, where Rule 6.5 applies. The opinion concludes that for short-term limited legal services under a qualifying program, Rule 6.5 relieves the lawyer of the Rule 1.10(e) firm-wide check, and the lawyer is conflicted only if she has actual knowledge of a conflict at the outset.

Q: Can a single telephone consultation be a proper limited-scope representation?

A: Yes, if reasonable under the circumstances. The opinion, citing Comment [7] to Rule 1.2 and Op. 2016-2, concludes a brief consultation can be reasonable, provided the time is sufficient to yield reliable advice and the client gives informed consent to the limited scope.

Q: What if I think the caseworker is garbling the facts or my advice?

A: The opinion holds that the lawyer may generally rely on the client's agent where reasonable, but if she has reason to believe the caseworker is mistransmitting facts, inadequately implementing advice, or acting contrary to the client's interests, she must take appropriate remedial steps or decline or terminate the representation.

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 6.5 (short-term limited legal services programs; Model Rule 6.5), Rule 1.2(c) (limiting the scope of representation; Model Rule 1.2(c)), Rule 1.1 (competence; Model Rule 1.1), and Rule 1.10(e) (firm-wide conflict-checking; Model Rule 1.10). It relies on Comment [1] to Rule 6.5 (examples of qualifying programs), Comment [7] to Rule 1.2 (brief consultations), and on NYSBA Ethics Op. 1012 and prior NYCBA opinions (2014-1, 2016-2, 2009-3, 2005-1).

Citations and references

Rules of Professional Conduct:

  • Model Rule 6.5 / NY RPC 6.5 (short-term limited legal services programs)
  • Model Rule 1.2(c) / NY RPC 1.2(c) (limiting the scope of representation)
  • Model Rule 1.1 / NY RPC 1.1 (competence)
  • Model Rule 1.10 / NY RPC 1.10(e) (firm-wide conflict-checking; imputation)

Other opinions cited:

  • NYSBA Ethics Op. 1012 (2014): Rule 6.5 and the firm-wide conflict-check requirement
  • ABA Formal Op. 10-457 (2010): distinction between legal information and legal advice
  • NYCBA Formal Op. 2016-2 (2016): reasonableness of limited-scope representation
  • NYCBA Formal Op. 2014-1 (2014): clarifying roles when working with non-lawyers

See also

Source

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