Can an Ohio court set up and fund a self-help clinic staffed by appointed lawyers for self-represented litigants, and what duties do those lawyers owe?

Plain-English summary

A common pleas domestic relations court proposed a legal self-help center staffed by court-appointed lawyers, paid as independent contractors through grant funds, to give short-term assistance to litigants of limited means. The lawyers would help litigants file correct forms, address service of process, explain procedures, and make referrals, but would not act as counsel of record. The Board addressed whether a court may appoint and compensate such lawyers and what ethical obligations the lawyers take on.

On the court's side, the Board concluded a court may establish and fund a self-help clinic and appoint lawyers to staff it. The Rules contemplate court-annexed limited legal service programs (Prof.Cond.R. 6.5 and cmt. [1]), appointments should be made impartially on a merit basis with compensation not exceeding fair market value (Jud.Cond.R. 2.13), and a judge may encourage pro bono service (Jud.Cond.R. 3.7(B)). The Board explained that a clinic helps ensure the self-represented litigant's right to be heard and improves access to justice (Jud.Cond.R. 2.6, cmt. [1A]; 2.2, cmt. [4]), but because the clinic will be seen as a court service, the court's oversight should be de minimis, limited mainly to funding and appointing lawyers rather than day-to-day operation, to protect the court's impartiality (Jud.Cond.R. 1.2). Judges should avoid case-related communications with clinic lawyers that could look like ex parte contact or partiality (Jud.Cond.R. 2.2, 2.9).

On the lawyers' side, the Board held that a limited client-lawyer relationship is formed when a lawyer assists a litigant in the clinic, triggering the lawyer's ethical obligations (Prof.Cond.R. 6.5, cmt. [1]). Citing Ohio authority that the relationship can arise by implication based on the prospective client's reasonable belief (Cuyahoga Cty. Bar Ass'n v. Hardiman; Disciplinary Counsel v. Cicero), the Board advised that clinic lawyers operate on the assumption that a relationship is formed, and that asserting otherwise does not insulate the lawyer. The services are a permitted form of limited scope representation under Prof.Cond.R. 1.2(c), but appointed lawyers have the same core duties as retained counsel, including competence and diligence, confidentiality, conflict checking between clinic clients and current or former clients, and notice of any lack of malpractice insurance (Prof.Cond.R. 1.1, 1.3, 1.6, 1.7, 1.9; 6.2, cmt. [2]; 1.4(c)). The Board recommended a written agreement explaining the limited nature of the services and obtaining the client's written consent (Prof.Cond.R. 6.5, cmt. [2]), and stated that a lawyer who finds an issue outside the limited scope should tell the client, note that the lawyer is not handling it, and advise seeking additional representation.

In practice

The opinion holds that, under the Ohio Rules of Professional Conduct and Code of Judicial Conduct as they stood at the time, a court may establish and fund a self-help clinic and appoint and compensate lawyers to provide limited scope assistance, with the court's role kept de minimis to maintain impartiality (Jud.Cond.R. 1.2, 2.13). Per the opinion, a lawyer who assists a clinic litigant forms a client-lawyer relationship that triggers the full range of ethical duties even though the representation is limited in scope (Prof.Cond.R. 6.5, 1.2(c)), and oral or written assertions that no relationship is formed are not appropriate. The opinion recommends that clinic lawyers enter a written agreement obtaining the client's acknowledgement of the limited scope.

Common questions

Q: Can an Ohio court create and fund a self-help clinic for self-represented litigants?

A: The opinion concluded yes; the Rules contemplate court-annexed limited legal service programs, and a court may fund the clinic and appoint lawyers to staff it, so long as the court's involvement stays de minimis to protect judicial independence and impartiality (Prof.Cond.R. 6.5; Jud.Cond.R. 1.2, 2.13).

Q: Does a lawyer in a court self-help clinic form a client-lawyer relationship?

A: The opinion concluded yes; a limited client-lawyer relationship is formed when the lawyer assists a clinic litigant, and the Board advised lawyers to operate on that assumption because a disclaimer does not insulate the lawyer from ethical duties (Prof.Cond.R. 6.5, cmt. [1]).

Q: What duties does a clinic lawyer owe despite the limited scope?

A: The opinion holds the lawyer owes the same core duties as retained counsel, including competence, diligence, confidentiality, conflict checking against current and former clients, and notice of any lack of malpractice insurance (Prof.Cond.R. 1.1, 1.3, 1.6, 1.7, 1.9, 1.4(c)).

Q: Should the clinic use a written limited-scope agreement?

A: The opinion recommends a written agreement explaining the limited nature of the services and obtaining the client's written consent to the limited scope (Prof.Cond.R. 1.2(c); 6.5, cmt. [2]).

Q: What should a clinic lawyer do if a client's problem falls outside the clinic's scope?

A: The opinion states the lawyer should inform the client of the issue, that the lawyer is not representing the client on it, and that the client should seek additional legal representation.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 6.5 (short-term limited legal services under the auspices of a nonprofit or court program; Model Rule 6.5) and 1.2(c) (limited scope representation; Model Rule 1.2), together with the core duties in Prof.Cond.R. 1.1, 1.3, 1.4, 1.6, 1.7, and 1.9 and the appointed-counsel rule in 6.2. On the judicial side it applies Jud.Cond.R. 1.2 (impartiality), 2.2 and 2.6 (ensuring the right to be heard; reasonable accommodation of self-represented litigants), 2.9 (ex parte communications), 2.13 (administrative appointments), and 3.7 (encouraging pro bono service).

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 6.5 (short-term limited legal services programs), incl. cmts. [1]-[2] (Model Rule 6.5)
• Ohio Prof.Cond.R. 1.2(c) (limited scope representation) (Model Rule 1.2)
• Ohio Prof.Cond.R. 1.0(i), (n) (definitions of "reasonable" and "substantially related")
• Ohio Prof.Cond.R. 1.1, 1.3, 1.4, 1.6, 1.7, 1.9 (core duties to clients)
• Ohio Prof.Cond.R. 6.2 (accepting appointments), incl. cmt. [2]; 1.4(c) (malpractice-insurance notice)

Rules of Judicial Conduct:

• Ohio Jud.Cond.R. 1.2 (impartiality); 2.2, 2.6 (right to be heard; self-represented litigants); 2.9 (ex parte communications); 2.13 (administrative appointments); 3.7(B) (encouraging pro bono service)

Cases:

• Cuyahoga Cty. Bar Ass'n v. Hardiman, 100 Ohio St.3d 260, 2003-Ohio-5596, formation of a client-lawyer relationship by implication
• Disciplinary Counsel v. Cicero, 134 Ohio St.3d 311, 2012-Ohio-5457, reasonable belief of the prospective client

Other opinions cited:

• N.J. Ethics Op. 671 (1993); Tenn. Ethics Op. 151 (2005); D.C. Bar Ethics Op. 330 (2005): limited scope and clinic representation

See also

• Ohio BPC Op. 2005-007: Pro Bono Advance Directive Public Education
• Ohio BPC Op. 1989-025: Legal Aid Conflict and Referral to a Volunteer Project
• TX Ethics Op. 695: Legal Aid Funder Confidentiality and Consent

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/10/Adv.-Op.-2017-7-Final.pdf

Original opinion text

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

OPINION 2017-07
Issued October 6, 2017

      Court Established Self-Help Clinics for Self-Represented Litigants

SYLLABUS: In order to ensure the right of self-represented litigants to be heard, a court
may establish and fund a self-help center to assist self-represented litigants as long as the
independence, integrity, and impartiality of its judges is maintained. A court may
appoint and compensate lawyers to provide limited scope representation to litigants in a
self-help clinic. A lawyer who provides legal assistance through a self-help clinic creates
a client-lawyer relationship, although the relationship may be limited in scope. A written
agreement that obtains the client’s acknowledgement to the limited scope representation
is recommended.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

DAVID L. DINGWELL RICHARD A. DOVE
CHAIR DIRECTOR
SANFORD E. WATSON D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL

                                     OPINION 2017-07
                                   Issued October 6, 2017


       Court Established Self-Help Clinics for Self-Represented Litigants

SYLLABUS: In order to ensure the right of self-represented litigants to be heard, a court
may establish and fund a self-help center to assist self-represented litigants as long as the
independence, integrity, and impartiality of its judges is maintained. A court may
appoint and compensate lawyers to provide limited scope representation to litigants in a
self-help clinic. A lawyer who provides legal assistance through a self-help clinic creates
a client-lawyer relationship, although the relationship may be limited in scope. A written
agreement that obtains the client’s acknowledgement to the limited scope representation
is recommended.

QUESTION PRESENTED: Whether a court may appoint and compensate lawyers as
independent contractors to work in a court-established self-help center to assist self-
represented litigants on a limited scope basis.

APPLICABLE RULES: Prof.Cond.R. 1.0, 1.1, 1.2, 1.3, 1.4, 1.6, 1.7, 1.9, 6.2 and 6.5;
Jud.Cond.R. 1.2, 2.2, 2.6, 2.9, 2.13, and 3.7.

OPINION: A common pleas domestic relations court proposes to create a legal self-
help center staffed by court-appointed lawyers. The primary purpose of the self-help
clinic is to provide short-term legal assistance to persons of limited means who otherwise
would be unrepresented. The lawyers would be appointed to provide assistance to self-
Op. 2017-7 2

represented litigants on a limited scope basis. Appointed lawyers will be paid by the
court as independent contractors through the use of grant funds. The lawyers will not
provide legal representation before the court, but only general legal assistance and
information to litigants. Specifically, the lawyers will assist the litigants to ensure they
file the correct court forms in their case, explain and address service of process issues,
explain court procedures, and make necessary referrals to sources or persons for
additional information or assistance. Litigants will be advised that the lawyers are not
responsible for completing or filing the court forms and will not act as counsel of record
before the court. Litigants also will be informed that the court-appointed lawyers are
independent contractors paid through a grant.

The Permissibility of Court-Annexed Limited Legal Services Programs

   A court may establish and fund a self-help clinic for self-represented litigants and

appoint lawyers to staff the clinic. The Rules of Professional Conduct contemplate court-
annexed, limited legal service programs like the one described in the opinion request,
with or without outsourcing the legal services to third parties. A lawyer may provide
short-term limited legal services under the “auspices of a program sponsored” by a
“nonprofit organization or court.” Prof.Cond.R. 6.5. The comment to the rule recognizes
that “courts * * * have established programs through which lawyers provide short-term
limited legal services - such as advice or the completion of legal forms - that will assist
persons to address their legal problems.” Prof.Cond.R. 6.5, cmt. [1]. The appointments of
clinic lawyers should be made impartially on a merit basis and the compensation for the
appointed lawyers should not exceed the fair market value for similar services.
Jud.Cond.R. 2.13. Lastly, a judge may encourage lawyers to assist in a pro bono program
that provides free legal services to persons of limited means at a substantially reduced
fee. See Jud.Cond.R. 3.7(B).

   The establishment of a self-help clinic is a permissible method to ensure the right

of the self-represented litigant to be heard and that improves access to justice. See
Jud.Cond.R. 2.6, cmt. [1A]. See also Jud.Cond.R. 2.2, cmt. [4] (a judge may make reasonable
accommodations to a self-represented litigant.) However a judge must always remain
fair and impartial, and any reasonable accommodation for a self-represented litigant
should not create an unfair advantage for the litigant. A self-help clinic in a court can
Op. 2017-7 3

facilitate the administration of justice by reducing the necessity for a judge to provide
additional accommodations for a self-represented litigant during a hearing, assisting in
maintaining the appearance of impartiality, and increasing the opportunity for the matter
to be heard on its merits rather than dismissed on technicalities.

   However, establishing a self-help clinic implicates other judicial obligations under

the Code of Judicial Conduct. Because the self-help clinic inevitably will be viewed by
the public as a court-provided service, it must operate and appear, to the extent possible,
as an independent function of the court. In order to underscore the court’s impartiality,
the court’s oversight and involvement in the self-help clinic should be de minimis and
primarily limited to the funding of the clinic and the appointment of the lawyers, not the
day-to-day operation of the clinic. Jud.Cond.R. 1.2. That is not to say, however, that
judicial officers, court staff, and appointed lawyers cannot meet occasionally to discuss
general administrative issues related to the operation of the self-help clinic.

   In order to further maintain the appropriate and ethical detachment from the

clinic, judges must refrain from interaction with clinic lawyers that could undermine the
public’s confidence in the independence, impartiality, and integrity of the court.
Jud.Cond.R. 1.2. More specifically, the same ethical boundaries observed with lawyers
appointed by the court for indigent litigants should be maintained for self-help clinic
lawyers. For example, the court should implement appropriate steps to avoid
communications between the appointed lawyers and court staff and judges about case-
related matters that could be interpreted as an ex parte communication or imply that
judges are not impartial. Jud.Cond.R. 2.2., 2.9. An appropriate step may include
placement of the self-help clinic in a physical location in the courthouse that reinforces
the independence of the court and appointing judges.

Limited Scope Representation by Court Appointed Lawyers

   A court that establishes a self-help clinic must be aware of the ethical obligations

of the appointed lawyers in the clinic. Most importantly, a limited client-lawyer
relationship is formed when a lawyer participates and assists litigants in a self-help clinic,
requiring the lawyer to adhere to his or her ethical obligations under the Rules of
Professional Conduct. Prof.Cond.R. 6.5, cmt. [1]; Ronald D. Rotunda and John S.
Op. 2017-7 4

Dzienkowski, Legal Ethics 1214 (2016-17 ed.) Even if the initial intent of the parties is to
the contrary, a client-lawyer relationship may be created by implication based upon the
conduct of the parties and the reasonable expectations of the person seeking
representation. Cuyahoga Cty Bar Ass’n v. Hardiman, 2003-Ohio-5596, 100 Ohio St.3d 260.
Moreover, the determination of whether a client-lawyer relationship is formed in Ohio
largely turns on the reasonable belief of the prospective client. Id. See also Disciplinary
Counsel v. Cicero, 2012-Ohio-5457, 134 Ohio St.3d 311. Therefore, the Board recommends
that clinic lawyers operate under the assumption that a client-lawyer relationship is
formed when they interact with a clinic client. Any verbal or written assertion that a
client-lawyer relationship is not formed in a clinic setting belies the underlying legal
nature of the relationship and does not insulate the lawyer from his or her ethical
obligations to the client. See N.J. Ethics Op. 671 (1993).

   The level of legal services to be offered by the lawyers in the court’s self-help clinic

is a form of limited scope representation expressly permitted under the Rules. Prof.Cond.
R. 1.2(c). Limited scope representation, or the “unbundling” of legal services, is an
alternative to the traditional full-service model that permits a lawyer to limit the client-
lawyer relationship to a specific task such as document assistance or procedural advice.
The scope of the representation may be limited if it is reasonable under the circumstances.
Id. “Reasonable” is defined as the conduct of a reasonably prudent and competent
lawyer. Prof.Cond.R. 1.0(i). In some circumstances, particularly in a legal clinic setting,
offering limited legal services without giving traditional legal advice or making a formal
appearance before a court can be considered reasonable. Tenn. Ethics Op. 151 (2005).

   From an ethical standpoint, appointed lawyers providing limited scope

representation have the same ethical obligations to their clients as counsel retained to
provide full representation including, but not limited to, a notice to and
acknowledgement from a client concerning any lack of malpractice insurance.
Prof.Cond.R. 6.2, cmt. [2]; Prof.Cond.R. 1.4(c). Notwithstanding the nature of the limited
scope representation, lawyers appointed by the court in the self-help clinic must comply
with the Rules of Professional Conduct by inter alia providing competent and diligent
legal services, maintaining client confidences, and considering known conflicts created
between clinic clients and current or former clients. Prof.Cond.R. 1.1, 1.3, 1.6, 1.7, and 1.9.
See Prof.Cond.R. 6.5.
Op. 2017-7 5

   Additionally, the Board recommends that appointed lawyers enter into a written

agreement with each clinic client that explains the limited nature of the legal services
provided; that the services are limited to the actual meeting between the clinic client and
lawyer; and that the representation will conclude without the filing by the lawyer of court
documents or any appearance in court by the lawyer. See Prof.Cond.R. 1.2(c)(written
agreement preferred in limited scope arrangements.) The appointed lawyer should
obtain the client’s written consent to the limited scope of the representation. Prof.Cond.R.
6.5, cmt. [2]. Finally, a lawyer who discovers that a client has a legal issue that falls
outside the scope of the limited representation should inform his or her client of the issue,
the fact that he or she is not representing the client regarding it, and that the client should
seek additional legal representation. D.C. Bar Ethics Op. 330 (2005).

CONCLUSION: The Rules of Professional Conduct contemplate the establishment
by a court of a self-help clinic for self-represented litigants. A court with a clinic must be
mindful of the Code of Judicial Conduct requirements of independence, integrity, and
impartiality when approving and funding the clinic and take steps to ensure a proper
ethical separation between the clinic, the appointed lawyers, and the court. The court’s
involvement with the clinic should be viewed as de minimis and limited to the funding
and appointment of lawyers in order to maintain the impartiality of the court.

   Appointed lawyers in the clinic will be undertaking a limited scope representation

of clients that forms a client-lawyer relationship under the Rules of Professional Conduct
that triggers the lawyer’s ethical obligations. Written or oral assertions that a client-
lawyer relationship is not being formed are not appropriate. The Board recommends that
lawyers enter into a written agreement that obtains the client’s acknowledgement to the
limited scope representation.