Do attorneys who volunteer to teach a pro se divorce clinic, giving only general information and no individual advice, form an attorney-client relationship with the participants?

Plain-English summary

A legal aid society planned a pro se clinic for eligible clients interested in simple divorces. Over two or three class sessions, volunteer attorneys would give an overview of the domestic relations court process, review and explain pleadings, outline substantive issues, and answer general questions, but give no specific legal advice on any participant's case. Participants would sign a form acknowledging that only general information would be given, that the instructors were not rendering legal advice on their particular cases, and that no attorney-client relationship would be established. The question was whether a participating attorney could be deemed to have formed an attorney-client relationship with any participant.

The committee explained that the point at which an attorney-client relationship is established is determined primarily by the principles of agency and contract law, citing recent New Mexico decisions (George v. Caton and Holland v. Lawless). Because the committee renders opinions on questions of professional responsibility and leaves questions of law to counsel, it declined to opine on whether an attorney-client relationship might arise on the facts presented.

The committee added ethics comments though the request had not asked for them. It noted lawyers' long-standing right and responsibility to participate in educational activities to improve the legal system and inform citizens of their rights, citing the preface to Canon 2 of the then-current Code, Rule 2-104(A)(4) (a lawyer may speak or write publicly on legal topics so long as he does not undertake to give individual advice), and the Preamble and Rule 6.1 of the new Code effective January 1, 1987. It saw no ethical objection to the clinic as described, but cautioned that care should be taken to avoid conflicts between participants' interests (Rule 1.7), to exercise appropriate supervisory responsibility over non-lawyer assistants (Rule 5.3), and to ensure no non-lawyer assistant engages in unauthorized practice (Rule 5.5).

Currency note

This opinion was issued in 1987, as New Mexico moved from the former Code of Professional Responsibility to the Rules of Professional Conduct effective January 1, 1987; the opinion references both. It predates the State Bar of New Mexico's November 3, 2008 revisions to the Rules (the New Mexico adoption of the ABA Ethics 2000 changes). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did the committee decide whether a pro se clinic creates an attorney-client relationship?

A: No. The committee declined to opine, explaining that whether an attorney-client relationship forms is a question of law, governed by agency and contract principles, that it leaves to counsel.

Q: Is it ethical for lawyers to teach a general legal-information clinic for the public?

A: The committee saw no ethical objection, noting lawyers' recognized right and responsibility to participate in educational activities and pro bono service under Rule 2-104(A)(4) and Rule 6.1.

Q: What ethical cautions did the committee flag for such a clinic?

A: It cautioned attorneys to avoid conflicts between participants' interests (Rule 1.7), to supervise non-lawyer assistants appropriately (Rule 5.3), and to ensure non-lawyer assistants do not engage in the unauthorized practice of law (Rule 5.5).

Q: Does a participant's signed acknowledgment settle whether a relationship formed?

A: The committee did not decide that question; it treated the existence of an attorney-client relationship as a legal question for counsel rather than one it would resolve.

Background and rules framework

The opinion drew on the former Code (Canon 2 preface; Rule 2-104(A)(4)) and the Rules of Professional Conduct effective January 1, 1987 (Preamble; Rule 6.1 on pro bono service; Rule 1.7 on conflicts; Rule 5.3 on non-lawyer assistants; Rule 5.5 on unauthorized practice). These correspond to current Model Rules 6.1, 1.7, 5.3, and 5.5.

Citations and references

Rules of Professional Conduct:

• Rule 2-104(A)(4) (speaking or writing publicly on legal topics without giving individual advice)
• Rule 6.1 (pro bono public service); Rule 1.7 (conflicts of interest); Rule 5.3 (responsibilities regarding non-lawyer assistants); Rule 5.5 (unauthorized practice)

Cases:

• George v. Caton, 93 N.M. 370, 600 P.2d 822 (Ct. App.), cert. quashed, 93 N.M. 172, 598 P.2d 215 (1979), formation of the attorney-client relationship
• Holland v. Lawless, 95 N.M. 490, 623 P.2d 1004 (Ct. App.), cert. denied, 95 N.M. 593, 624 P.2d 535 (1981), formation of the attorney-client relationship

See also

• NM Ethics Op. 1984-11: Nonprofit Legal Clinic

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1987/1987-6.pdf

Original opinion text

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

Advisory Opinion 1987-6
Issue: whether attorneys participating on a pro bono basis in a pro se divorce clinic sponsored by a legal aid society, who render no legal advice on individual matters to clinic participants, will be deemed to have established an attorney-client relationship with such participants.
Facts: A legal aid society is in the process of developing a "pro se" clinic for eligible clients who are interested in "simple divorces." Each clinic would involve two or three different class sessions in which an overview of the domestic relations court process would be presented, pleadings reviewed and explained, substantive issues relating to domestic relations law outlined and general questions answered. The clinic would be taught by attorneys on a pro bono basis, and no specific legal advice would be given on any individual clinic participant's case. Participants in the clinic would be asked to sign a form agreement wherein the participant would acknowledge that only general information would be given at the seminar, and that the attorney instructors would not be rendering legal advice on his or her particular case, and further that no attorney-client relationship would be established by participation in the clinic.
Opinion: This inquiry does not request an opinion concerning the establishment of the pro se divorce clinic, or the mechanics thereof; it requests an opinion, instead, as to whether an attorney participating in such a clinic could be deemed to have established an attorney-client relationship with any of the participants in the clinic.
The point at which an attorney-client relationship is established is determined primarily by the principles of the law of agency and contract. Recent New Mexico decisions which have discussed this issue include George v. Caton, 93 N.M. 370, 600 P.2d 822 (Ct. App.), cert. quashed, 93 N.M. 172, 598 P.2d 215 (1979) and Holland v. Lawless, 95 N.M. 490, 623 P.2d 1004 (Ct. App.), cert. denied, 95 N.M. 593, 624 P.2d 535 (1981). The Advisory Opinions Committee renders opinions on questions of professional responsibility, leaving it to counsel to determine questions of law. Accordingly, the Committee declines to opine on the subject of whether an attorney-client relationship might arise under the facts presented.
While the legal aid society's request did not specifically ask us to address the ethical considerations arising under the proposed pro se clinic, we would nonetheless add the following comments.
Lawyers have a long-standing right, even responsibility, to participate in educational activities designed to improve the legal system and enlighten citizens as to their rights and responsibilities under the law. The preface to Canon 2 of the current Code of Professional Responsibility alludes to the legal profession's educating the public to an awareness of legal needs. Rule 2-104(A)(4) provides that "a lawyer may speak publicly or write for publication on legal topics so long as he ... does not undertake to give individual advice...." Similarly, the Preamble to the new Code of Professional Responsibility, adopted by the New Mexico Supreme Court effective January 1, 1987, admonishes lawyers to seek improvement of the law and the quality of service rendered by the legal profession, to employ legal knowledge to reform the law, and to devote professional time and civic influence on behalf of the poor and those who cannot afford adequate legal assistance. Rule 6.1 of the new rules also permits pro bono public service activities.
We therefore see no objection from an ethical standpoint to the proposed pro se clinic, as we understand its intended functioning. We note, however, that caution should be used to avoid situations where a conflict might arise between the interests of clinic participants (Rule 1.7 of new rules); to exercise appropriate supervisory responsibility over the activities of any non-lawyer assistants (Rule 5.3); and to ensure that no non-lawyer assistant engages in unauthorized practice of law (Rule 5.5).