Can a legal services program's governing board set priorities that limit the kinds of cases its staff lawyers handle?

Ohio BPC Opinion 89-004: Legal Services Board Setting Case Priorities

Short answer: The Board concluded that a legal services program's governing board may set priorities limiting which matters the office handles, but once a case is undertaken and the client is told of any limits, the board may not interfere with the representation.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct'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. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Currency note

This opinion was issued in 1989 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.

Plain-English summary

The request asked whether a legal services corporation's policy of restricting representation for domestic violence victims to protection-order petitions, and not divorces (with some exceptions), violated the Code of Professional Responsibility. The three sub-questions framed the issue under the duty of zealous representation (DR 7-101), the lawyer's exercise of independent professional judgment free of a third party's direction (DR 5-107(B)), and restrictions on a lawyer's right to practice (DR 2-108(A)).

The Board concluded that the priority policy was not prohibited. It agreed with the ABA that, given limited resources, legal service offices must establish priorities for handling matters and accepting new clients (citing ABA Formal Opinions 347 (1981) and 334 (1974)). It noted that the governing body was required by Legal Services Corporation regulations to adopt resource-allocation priorities, that clients were informed of the no-divorce policy before representation began, and that such priorities should be set as broad guidelines rather than case-by-case review.

The Board drew a line at interference with cases already accepted: once representation is undertaken, DR 5-107(B) and DR 7-101 prohibit the governing body from interfering with the lawyer's handling of a particular case. It rejected the DR 2-108(A) argument, explaining that DR 2-108(A) addresses restricting a lawyer's right to practice after the employment relationship ends, not the priority-setting at issue.

Common questions

Q: Can a legal aid board limit the types of cases its lawyers take?

A: Under this opinion, yes. The Board held that setting priorities to allocate limited resources, including declining certain matters, did not violate the Code, and that federal regulations required the board to adopt such priorities.

Q: Can the board direct how a lawyer handles a case it has already accepted?

A: No. The opinion concluded that once representation is undertaken, DR 5-107(B) and DR 7-101 bar the governing body from interfering with the lawyer's handling of that case.

Q: Did limiting case types violate the rule against restricting a lawyer's right to practice?

A: No. The Board concluded DR 2-108(A) did not apply, because that rule addresses restrictions on practice after the employment relationship ends.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility: DR 7-101 (zealous representation), DR 5-107(B) (a lawyer must not permit a person who recommends, employs, or pays the lawyer to direct professional judgment), and DR 2-108(A) (restrictions on the right to practice). It also relies on Legal Services Corporation regulations (45 C.F.R. Parts 1620, 1617, 1616) and ABA ethics opinions on priority-setting in legal aid offices.

Citations and references

Rules of Professional Responsibility (Ohio):

• Former Code of Professional Responsibility, DR 7-101, zealous representation
• Former Code of Professional Responsibility, DR 5-107(B), no interference with professional judgment
• Former Code of Professional Responsibility, DR 2-108(A), restrictions on right to practice (held inapplicable)

Regulations:

• 45 C.F.R. Part 1620 (Legal Services Corporation priorities); 45 C.F.R. § 1617

Other opinions and authorities cited:

• ABA Committee on Ethics and Professional Responsibility, Formal Op. 347 (1981): priorities for limited legal-aid resources
• ABA Committee on Ethics and Professional Responsibility, Formal Op. 334 (1974): restrictions on legal service office activities
• Wolfram, Modern Legal Ethics 943 (1986)

See also

• Ohio BPC Opinion 1988-003: Legal Aid Lawyer Direct-Mail Solicitation
• Ohio BPC Opinion 1988-030: Client Decision Authority and Third-Party Influence

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-004.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 89-004
Issued February 17, 1989

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A Legal Service project's governing board has the authority to set priorities for the allocation of resources in the legal service office. Such activity on the part of the governing board is not a violation of the Code of Professional Responsibility. However, once a case is undertaken and after the client is informed of any limitations relating to the representation, the governing board may not interfere with the representation.

OPINION: We have before us your request for an advisory opinion on whether a legal service corporation's policy which restricts representation for victims of domestic violence solely to domestic violence petitions and not divorces (with some specified exceptions) is in any way a violation of the Code of Professional Responsibility. Specifically, your questions are as follows:

1. Does the program's policy interfere with the duty of an attorney employed by the program to zealously represent a client who desires a divorce? (See DR 7-101 (A)).

2. Does the policy interfere with the independent judgment of an attorney employed by the program when the attorney's client desires a divorce and, in the attorney's judgment, a divorce is necessary to afford the client complete relief? (See DR 5-107 (B)).

3. Does the policy impermissibly limit the representation of an attorney employed by the program when the attorney's client desires a divorce? (Cf. DR 2-108 (A)).

As your letter indicates, the Legal Service Corporation regulations require each governing body to adopt priorities for allocating resources in an economical and effective manner. 45 C.F.R. Part 1620. In this regard and according to your request, the legal services project's governing body that you work for has adopted such a priority plan. Supra. Furthermore, clients are informed of the "no divorce" policy before representation is undertaken.

To begin with, we agree with the ABA's position that ". . . it is already recognized that in the face of limited resources, legal service offices must establish priorities for handling matters and accepting new clients." ABA Committee on Ethics and Professional Responsibility, Formal Op. 347 (1981). Although we are sympathetic to your concerns, such limitations upon the activities of a legal service office are not prohibited under the Code of Professional Responsibility. ABA Committee on Ethics and Professional Responsibility, Formal Op. 334 (1974).

Such priority settings are to take the form of broad guidelines rather than case-by-case review. Wolfram, Modern Legal Ethics 943 (1986). "Of course, any restrictions on representation must be made in accordance with the requirements of the Code of Professional Responsibility. ABA Committee on Ethics and Professional Responsibility, Formal Op. 334 (1974). Thus, once representation is undertaken both DR 5-107 (B) and DR 7-101 prohibit interference with that representation. Id. In other words, the governing body should not interfere with a lawyer's handling of a particular case. Wolfram, Modern Legal Ethics 943 (1986). However, there are certain decisions during the representation which may require approval of a director or governing board. See, e.g., 45 C.F.R. § 1617.

In regard to your third question, we do not agree that DR 2-108 (A) applies to this situation. That Code provision relates to restricting a lawyer's right to practice after termination of the employment relationship.

In conclusion, it is our opinion and you are so advised that a legal service organization's governing body's adoption of priorities for allocation of an office's resources is required under 45 C.F.R. § 1620 and does not run afoul of the Code of Professional Responsibility. Implementing priorities must be made if resources are to be effectively utilized provided it is done "fairly and reasonably with the objective of making maximum legal services available, within the limits of available resources." ABA Committee on Ethics and Professional Responsibility, Formal Op. 334 (1974).

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.