Can a volunteer legal clinic open a file and offer a consultation to a second person whose interests may conflict with an existing clinic client?

Plain-English summary

The inquirer managed a volunteer lawyer program that ran weekly family-law clinics staffed by volunteer lawyers, taking referrals from CLEAR and the community. Intake files included the client's contact and financial information, the opposing party's name, and a summary of the legal problem, and the program screened for conflicts before opening files. The inquirer asked whether it was a conflict for the program to open a file on a "second" person and offer a consultation, and if necessary refer that person on for further pro bono help, provided no attorney-client relationship had formed with the "first" person.

The committee concluded that a person seeking services should first be screened by the clinic for conflicts with other existing clinic clients. To do the screening ethically, the prospective client should be advised at the outset that anything they say is not considered confidential until the clinic has decided it is able to provide services. The committee noted that RPC 1.6 applies to information provided for the purpose of trying to hire counsel, even if no agreement is reached, unless confidentiality is waived.

The committee said it is a violation of RPC 1.7 to establish an attorney-client relationship with a "second party" in an action once an attorney-client relationship has been established with the "first party," but that it could not answer the question of law of when an attorney-client relationship is established with the first party. It concluded that if no attorney-client relationship had formed with the first party, there would be no conflict in assisting the second party. If there were such a relationship with the first party, there would be no conflict in referring the second party out to another clinic or a pro bono attorney, provided no client secrets or confidences are disclosed; the second party should not be told why services cannot be provided, and the committee presumed the clinic's volunteer attorneys do not share client confidences with the clinic after a referral.

Currency note

This opinion was issued in 2002, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Washington later adopted a specific rule on duties to prospective clients (RPC 1.18) and a limited-scope nonprofit/court-program conflict rule (RPC 6.5) that were not in force here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

In practice

Under the Washington rules as they stood at the time of the opinion, a clinic's intake-and-screening process had to assume RPC 1.6 protected information shared by someone trying to hire counsel, so the opinion treats an up-front warning that intake information is not confidential until services are accepted as the way to screen ethically. The conflict question turned on whether an attorney-client relationship had formed with the first party, a point the opinion expressly left as an unresolved question of law; where it had, the opinion treats referring the second party out (without disclosing confidences and without explaining why) as avoiding the conflict.

Common questions

Q: Is information a prospective clinic client shares during intake confidential?

A: The committee said RPC 1.6 applies to information provided for the purpose of trying to hire counsel even if no agreement is reached, so the clinic should advise the person up front that what they say is not confidential until the clinic decides it can provide services.

Q: When is it a conflict to help a second person whose interests oppose an existing client's?

A: The committee said establishing an attorney-client relationship with a second party once one exists with the first party violates RPC 1.7; if no relationship formed with the first party, there is no conflict in assisting the second.

Q: If there is a conflict, can the clinic still help the second person?

A: The committee said there would be no conflict in referring the second party out to another clinic or pro bono attorney, provided no client secrets or confidences are disclosed; the second party should not be told why services cannot be provided.

Background and rules framework

The opinion applies Washington RPC 1.6 (confidentiality of information; corresponding to Model Rule 1.6) to information shared by a prospective clinic client, and RPC 1.7 (conflict of interest; corresponding to Model Rule 1.7) to representation of a second, adverse party. The committee declined to decide when an attorney-client relationship forms, treating that as a question of law. The opinion reflects Washington's pre-2006 rule numbering and predates Washington's later prospective-client and limited-scope-program rules.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality of information)
• Model Rule 1.7 / Washington RPC 1.7 (conflict of interest; current clients)

See also

• WSBA Ethics Op. 1411: Prospective Client's Initial Contact and Conflicts
• WSBA Ethics Op. 1933: Confidentiality of a Prospective Client's Phone Call
• WSBA Ethics Op. 928: Formation of the Attorney-Client Relationship

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1222

Original opinion text

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

Advisory Opinion: 1977
Year Issued: 2002
RPC(s): RPC 1.6, RPC 1.7
Subject: volunteer lawyer program, conflict of interest

[Editor’s note: The inquirer manages a volunteer lawyer program. The staff includes the inquirer and a legal assistant. The program offers weekly legal clinics in family law matters staffed by volunteer lawyers. The inquirer refers persons wishing legal help to the volunteer lawyers for free consultations and also for pro bono representation. The program takes referrals from CLEAR and the community at large. The program staff opens files for all clients except for those for which a conflict exists. The file consists of an application for services that includes name, address, telephone number of client, name of the opposing party, client household and financial information and a brief summary of the legal problem. The client signs a release authorizing the program staff to speak with a volunteer lawyer about the case.

In addition, the program staff complete pro se dissolution forms for Spanish-speaking clients and for clients otherwise unable to do so on their own. This file contains notes about the client’s case and a record of the volunteer lawyer’s activities, but no copy is kept of the pleading forms after the client has reviewed them. The program staff screen CLEAR referrals for conflicts. If there is a conflict because program staff has been contacted by the opposing party, the case is returned to CLEAR. If a person from the community, not referred by CLEAR, asks for services and a conflict exists, the program staff refers that person to CLEAR and CLEAR attempts to find a volunteer lawyer.

Based on these facts, the inquirer asks whether it is a conflict of interest for the volunteer lawyer program to open a file on the “second” person and offer a consultation by a volunteer lawyer at the legal clinic and, if necessary because a conflict exists, try to find further pro bono assistance, provided that an attorney-client relationship has not been formed with the first person.]

The committee opined that a person seeking legal services should first be screened by the clinic for conflicts with other existing clinic clients. In order to ethically do the screening, the prospective client should be advised at the outset that anything they say is not considered confidential information until the clinic has decided it is able to provide services. RPC 1.6 applies to information provided for the purposes of trying to hire counsel even if no agreement is reached unless confidentiality is waived.

It is a violation of RPC 1.7 to establish an attorney-client relationship with a “second party” in an action once an attorney-client relationship has been established with the “first party”. The committee cannot answer the question of law as to when an attorney-client relationship has been established with the “first party” in your clinic.

If no attorney-client relationship has been established with the “first party”, there would not be a conflict of interest to assist the “second party” at the legal clinic. Again, the committee offers no opinion on when or how the attorney-client relationship is established.

Finally, if there were an attorney-client relationship with the “first party”, there would be no conflict if the clinic were to refer the “second party” out to another legal clinic or to a pro bono attorney on the volunteer attorney list; provided that no client secrets or confidences are disclosed. The “second party” should not be told why services cannot be provided to him. The clinic can do nothing more that refer him to other sources for assistance. The committee presumes that the volunteer attorneys that the clinic uses do not share client confidences with the clinic after a referral.