Does a legal services referral program create a conflict when it interviews both spouses in a divorce and refers each to a different panel attorney?

Plain-English summary

A legal services office ran a pure judicare program: paralegals interviewed potential clients, and financially eligible clients within program priorities were referred to private panel attorneys. No attorneys worked directly for the program except one staff attorney handling only housing and public benefit cases. The program interviewed a husband seeking a divorce and referred him to one panel attorney, then separately interviewed the wife and referred her to a different panel attorney with no professional relationship to the first. The committee addressed whether the shared intake created a conflict.

On the first question, the committee concluded there is no conflict when the program refers the husband and wife to two separate, unrelated panel attorneys, so long as those attorneys do not have access to the program's files on clients other than their own. It cautioned, quoting Thomas v. Municipal Court, that a conflict would arise "if there is a reasonable probability that confidences were disclosed which could be used against the [other] client." Drawing on Arizona Ethics Opinion 91-24, the committee noted that intake staff may refer clients with adverse interests to an affiliated panel where no lawyer-client relationship forms at intake and the organization and panel are not treated as "one firm" under Rule 1.10, and that intake workers should advise applicants that they are not acting as the applicant's attorney, cannot give legal advice, and are only determining eligibility. The committee stressed that the program must safeguard intake confidences and prevent either panel attorney from receiving information about the adverse party.

On the second question, the committee concluded that the mere existence of a staff attorney handling only housing and public benefit cases does not by itself create a conflict for the referral program in a divorce matter, provided that attorney is kept away from the divorce clients' files and information and is not a source of client confidences for any panel attorney.

Currency note

This opinion was issued in 1996, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Can a legal services program refer both spouses in a divorce to its panel?

A: The committee concluded yes, with no conflict, where each spouse goes to a different, unrelated panel attorney and neither attorney can access the program's files on the other client.

Q: When would a conflict arise?

A: The committee, quoting Thomas v. Municipal Court, said a conflict arises if there is a reasonable probability that confidences were disclosed which could be used against the other client.

Q: Does the program's staff attorney taint the referrals?

A: The committee concluded the housing/benefits staff attorney does not create a conflict in a divorce matter, provided that attorney is walled off from the divorce clients' files and confidences.

Background and rules framework

The opinion analyzed conflicts of interest (Rule 1.7) and imputed disqualification (Rule 1.10) in the context of a legal services intake-and-referral program, emphasizing protection of intake confidences under Rule 1.6, and drew on persuasive authority from Thomas v. Municipal Court and Arizona Ethics Opinion 91-24. The rule numbers correspond to the like-numbered Model Rules.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.7 / Model Rule 1.7: conflicts of interest.
• South Carolina RPC 1.10 / Model Rule 1.10: imputation of conflicts within a firm.
• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information.

Cases:

• Thomas v. Municipal Court of Antelope Valley Judicial District of California, 878 F.2d 285 (9th Cir. 1988): disclosure of confidences usable against another client.

Other opinions cited:

• Arizona Ethics Opinion 91-24 (1991): legal services intake referrals to an affiliated pro bono panel.

See also

• SC Bar Ethics Op. 96-02: Spouse Managing the Client
• SC Bar Ethics Op. 96-13: Independent Paralegal Services

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-96-15/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 96-15

A Legal Services Office is organized as a pure judicare program. The Program contains a panel of attorneys which accepts cases from the Program. There are no attorneys working directly for the Program, except for one staff attorney who handles only housing and public benefit cases. The Program has paralegals who interview potential clients. Financially eligible clients with cases within the stated priorities of the Program are referred to a private attorney. The attorneys do not have access to files of the Legal Services Program, other than those files for which the attorney is responsible. The Program interviews a Husband who wants a divorce, and refers the Husband to a panel attorney. The program separately interviews the Wife, and refers her to a different panel attorney. The two attorneys do not have any professional relationship. Neither of the attorneys would have a conflict of interest if the clients had come to the attorneys directly.

Questions:
1. Is there a conflict of interest because the Husband and Wife were interviewed by the same Legal Services Program?
2. Does the mere existence of a Legal Services Program staff attorney who handles only housing and public benefit cases create a conflict of interest?

Summary:
1. No, there is no conflict of interest when a Legal Services Program interviews both a Husband and Wife separately regarding a divorce, and refers each client to different panel attorneys which have no professional relationship, so long as there is no chance that either attorney has access to the files regarding the opposition client through the Legal Services Program.
2. No, the existence of a Legal Services Program staff attorney who is not handling divorce cases, does not, by itself, create a conflict of interest for the Legal Services Program referral service regarding a divorce matter. However the staff attorney should be kept from the divorce clients' files and information, and should in no way be a source of client confidences for any of the attorneys on the Panel.

Opinion:
The facts in this case present a Legal Services Office which has set up a Legal Services Referral Program to refer cases to a panel of attorneys. This is basically a copy of the classic attorney referral service, only the Legal Services Office does not operate this service for profit. So long as the attorneys on the panel do not have access to the Legal Services Program files on clients other than their own, there is no conflict of interest by the Program referring Husband and Wife in a divorce matter to two separate panel attorneys with no professional relationship. However, "if there is a reasonable probability that confidences were disclosed which could be used against the [other] client" then this referral would cause a conflict on interest. Thomas v. Municipal Court of Antelope Valley Judicial District of California, 878 F.2d 285, 288 (CA 9, 1988).

"Arizona Ethics Opinion 91-24 (1991) stated that a legal services intake staff could refer clients with interests adverse to legal services clients to an affiliated pro bono panel if there was no lawyer-client relationship established at the intake stage ... and the legal services organization and affiliated pro bono panel were not considered to be `one firm' under Model Rule 1.10." Geraghty, Peter, "Ethics Corner," PBI Exchange, February 1995, (ABA Center for Pro Bono). If the matters are substantially related the information received at the interview stage must be properly safeguarded and confidentiality not breached.

The Arizona Opinion further stated, "If the intake worker advises the client that (1) the intake worker is not acting as his attorney, (2) cannot give legal advice, and (3) the information is merely being taken to determine whether the client qualifies for [Pro Bono] legal services... there is a strong likelihood that the `subjective belief' of the applicant will be that there is no attorney-client relationship." Arizona Ethics Opinion 91-24 (1991).

Most importantly, it is imperative that the Legal Services Program ensure that safeguards are in place to ensure the confidentiality of the information received at the intake stage, and to ensure that neither panel attorney receives any information regarding the adverse party from the Legal Services Office or its files. "Further, the [Pro Bono Legal Services Program] should take steps to prevent dissemination of the contents of the completed intake forms to any of the [Panel] attorneys." Id.