NYSBA 2020-06-22

Does a lawyer who gives free, limited-scope legal help through a nonprofit program still get Rule 6.5's relaxed conflict rules if the program pays the lawyer a nominal fee?

Short answer: Yes. The opinion concludes that paying participating lawyers a nominal or below-market fee does not displace Rule 6.5's actual-knowledge conflicts standard, but the third-party payment triggers Rule 1.8(f): the lawyer needs the client's informed consent, must protect confidences, and must avoid outside interference.

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 Not binding precedent.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 at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1197: Conflicts in a Pro Bono Program That Pays Nominal Fees

Short answer: The opinion concludes that a lawyer giving free, limited-scope legal services through a nonprofit program keeps Rule 6.5's actual-knowledge conflicts standard even when paid a nominal fee, but receipt of that fee triggers Rule 1.8(f)'s conditions.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

A lawyer affiliated with a law school administers a program in which the school's nonprofit arm hires experienced alumni at nominal "low bono" hourly rates to give free, brief counseling and referral services to qualifying New Yorkers. The program is funded by city and state officials, and constituents meet a program attorney once, at a district office or community location, for a one-on-one session that is not allowed to become a full representation. The administrator asks whether paying the participating attorneys a nominal fee subjects them to the general conflict-of-interest rules.

The opinion answers no. Rule 6.5 applies to short-term, limited legal services offered under the auspices of a court, government agency, bar association, or not-for-profit legal services organization, and relieves participating lawyers of the usual conflict rules unless they have actual knowledge of a conflict. Under Rule 6.5(a)(1), the lawyer must comply with Rules 1.7, 1.8, and 1.9 only with actual knowledge of a conflict at the start of the representation, and under 6.5(a)(2) the Rule 1.10 imputation rules apply only with actual knowledge that an associated lawyer is affected. The committee finds nothing in the Rule that displaces this relaxed standard because the lawyer receives a nominal fee, and ties the program to Rule 6.1's definition of pro bono service to persons unable to pay.

The committee adds that because the fee is paid by a third party (the program) for representing someone else, Rule 1.8(f) applies: the lawyer needs the client's informed consent, must have no interference with independent professional judgment or the client-lawyer relationship, and must protect the client's confidential information under Rule 1.6. Those conditions track Rule 6.5(d)'s requirement that the lawyer secure the client's consent to the limited scope and that the representation remain subject to Rule 1.6.

In practice

Under this opinion, a lawyer who provides free, limited-scope services through a qualifying nonprofit program is held to Rule 6.5's actual-knowledge conflicts standard, not the general conflict rules, and a nominal program fee does not change that. The opinion holds that, because the fee comes from a third-party payor, the lawyer must satisfy Rule 1.8(f): obtain the client's informed consent, avoid any interference with independent judgment, and protect the client's confidences under Rule 1.6, consistent with Rule 6.5(d). Per the opinion, the program administrator is in the best position to determine whether the services qualify as pro bono.

Common questions

Q: Does a nominal fee defeat Rule 6.5's relaxed conflicts treatment?

A: No. Per the opinion, nothing in Rule 6.5 displaces the actual-knowledge conflicts standard because the lawyer receives a nominal or below-market fee for the limited services.

Q: When must a program lawyer check for conflicts under Rule 6.5?

A: Per the opinion, the lawyer must comply with Rules 1.7, 1.8, and 1.9 only if the lawyer has actual knowledge of a conflict at the start, and with Rule 1.10 imputation only on actual knowledge that an associated lawyer is affected.

Q: What does the third-party fee require?

A: Per the opinion, Rule 1.8(f) requires the client's informed consent, no interference with the lawyer's independent judgment or the relationship, and protection of the client's confidential information under Rule 1.6.

Background and rules framework

The opinion interprets New York Rule 6.5 (short-term limited legal services programs and its actual-knowledge conflicts standard), Rule 6.1 (voluntary pro bono service), Rule 1.8(f) (compensation from one other than the client), and Rule 1.6 (confidentiality), with reference to the conflict rules 1.7, 1.8, 1.9, and 1.10. These correspond to ABA Model Rules 6.5, 6.1, 1.8, and 1.6.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 6.5(a), 6.5(c), 6.5(d); 6.1(a)-(b); 1.8(f); 1.6; 1.7; 1.9; 1.10
ABA Model Rules 6.5, 6.1, 1.8, 1.6 (analogues)

Other opinions cited:

N.Y. State 1012 (2014): scope of Rule 6.5
N.Y. State 1063 (2015); N.Y. State 1000 (2014): third-party payment under Rule 1.8(f)

Source

Landing page: https://nysba.org/ethics-opinion-1197/