Can a legal services agency represent one party with a staff lawyer while the opposing party, screened by the same agency, is represented by a volunteer pro bono lawyer?

Plain-English summary

Legal representation for eligible indigent West Virginians was provided by four legal services agencies covering different geographic areas, funded largely by the Legal Services Corporation and subject to its regulations. Because the agencies lacked resources to represent everyone eligible, they joined with the West Virginia State Bar to sponsor a Pro Bono Referral Project, using volunteer lawyers not affiliated with the agencies. A potential client was interviewed by nonlegal personnel for financial eligibility, then signed a retainer with the agency whether the case went to a staff lawyer or a pro bono lawyer. Under the agencies' then-current policy, if an agency had a conflict in representing an eligible client, that client could not be represented through the Project either (illustrated by a divorce where the wife had a staff lawyer and the husband, though eligible, could not be served). The Committee was asked whether a conflict existed in two situations: (1) one party represented by a staff attorney and the opposing party by a Project member, both screened by the same staff; and (2) both parties represented by different Project members, both screened by the same staff.

The Committee noted that the Supreme Court of Appeals had been sensitive to the need to provide representation to indigent people, citing State ex rel. Sowa v. Sommerville, 167 W. Va. 353, 280 S.E.2d 85 (1981), where the Court found that the fundamental policy of guaranteeing availability of counsel for indigent criminal defendants outweighed situations that might appear ethically improper, permitting an exception to the general prohibition of associates of a prosecuting attorney representing criminal defendants for criminal appointments only. The Committee concluded that the importance of providing civil legal representation to eligible indigent clients overrides possible appearances of a conflict, so long as fundamental client rights, such as confidentiality of attorney-client communications and undivided loyalty, are not harmed.

The Committee concluded that neither situation presents a conflict prohibited by the Rules of Professional Conduct if five safeguards are employed: (1) intake should be by nonlegal personnel, restricted to information sufficient to determine financial eligibility and case type, and the potential client should be informed of the intake's limited purpose and the possibility the opposing party might also be eligible (though not from two staff attorneys); (2) the retainer should specify that the actual legal services may be rendered by an outside attorney; (3) the pro bono attorney should not have access to the staff attorneys' confidential records; (4) actual litigation support involving confidential information or staff participation should be provided by other Project members; and (5) the files the agencies keep on referred-out cases should not contain confidential information (the Committee understood they then held form status reports and court orders, which would not benefit the opposing party). The Committee stated the opinion followed Alabama (Opinion 91-36), Arizona (Opinion 91-24), and Florida (92-1) in formulating special conflict rules for the interaction between legal services agencies and volunteer lawyers.

Currency note

This opinion was issued in 1993, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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: Could a legal services agency end up on both sides of a case through its pro bono program?

A: The opinion concluded it could, without a prohibited conflict, where one party had a staff lawyer and the other a pro bono volunteer, or both had different volunteers, provided five safeguards protected confidentiality and undivided loyalty.

Q: Why did the Committee allow what could look like a conflict?

A: The opinion concluded the importance of providing civil legal representation to eligible indigent clients overrides possible appearances of a conflict, so long as confidentiality of attorney-client communications and undivided loyalty are not harmed, drawing on State ex rel. Sowa v. Sommerville.

Q: What safeguards did the opinion require?

A: Nonlegal intake limited to eligibility and case type with notice of its limited purpose; a retainer stating outside counsel may handle the case; no pro bono access to staff confidential records; litigation support involving confidential information routed through other Project members; and referred-out agency files kept free of confidential information.

Background and rules framework

The opinion interpreted West Virginia's Rules of Professional Conduct as they stood in 1993, focusing on the conflict-of-interest and confidentiality principles a shared-intake legal services program implicates: undivided loyalty to a client (Rule 1.7), the confidentiality of attorney-client communications (Rule 1.6), and the concern about imputation among lawyers in the same organization that the Sowa exception addressed (Rule 1.10). The analysis rested on State ex rel. Sowa v. Sommerville, 167 W. Va. 353, 280 S.E.2d 85 (1981), and aligned with opinions from Alabama, Arizona, and Florida.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / WV Rule 1.6 (confidentiality of attorney-client communications)
• Model Rule 1.7 / WV Rule 1.7 (conflicts of interest; undivided loyalty)
• Model Rule 1.10 / WV Rule 1.10 (imputed disqualification)

Cases:

• State ex rel. Sowa v. Sommerville, 167 W. Va. 353, 280 S.E.2d 85 (1981), policy of guaranteeing counsel for indigents can outweigh apparent ethical conflict

Other opinions cited:

• Alabama Opinion 91-36; Arizona Opinion 91-24; Florida Opinion 92-1: special conflict rules for legal services agencies working with volunteer lawyers

See also

• WV Ethics Op. 94-02: Uninsured-Motorist Counsel
• WV Ethics Op. 99-01: Insurance Captive Law Firms

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7da57ce58e96613829.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 93-01

MULTIPLE REPRESENTATION OF LEGAL SERVICES CLIENTS
THROUGH A PRO BONO PROGRAM

Legal representation for eligible indigent West Virginians is provided by four separate legal services agencies which cover different geographic areas. They receive most of their funding from a quasi-governmental agency, the Legal Services Corporation in Washington, D.C., and are subject to the corporation's regulations.

The legal services agencies lack the resources and staff to provide legal representation to all eligible people. These agencies, in conjunction with The West Virginia State Bar, sponsor a Pro Bono Referral Project. The Project is composed of lawyers not affiliated with the legal services agencies who volunteer their time to represent clients eligible for free legal services.

Although not all four agencies participate in the Project in precisely the same manner, certain basic procedures are followed. A potential client is interviewed at the legal services agency by nonlegal personnel to determine financial eligibility and the nature of legal representation needed. If all guidelines are met, the client signs a retainer agreement with the legal services agency whether the matter will be handled by a staff lawyer or a pro bono lawyer. If the latter, the legal service agency arranges an appointment for the client with the pro bono lawyer or has one of the Pro Bono Referral Project Coordinators locate the appropriate pro bono attorney.

The legal services agencies have currently adopted the policy that if it has a conflict in representing an eligible client, the client cannot receive representation through the Pro Bono Referral Project, either. For example, if a wife is being represented by an staff lawyer in a divorce, the husband, although also eligible, will not be provided a lawyer through the Pro Bono Project. No other legal services agency will represent the husband, since the jurisdiction of each agency is governed by geography. Which party reaches the legal services agency first controls.

The Committee on Legal Ethics has been asked by one of the legal services agencies and a local bar association which is quite active in the Pro Bono Referral Project to determine if a conflict of interest would exist in two situations:

(1) May one client be represented by an staff attorney and the opposing party be represented by a Pro Bono Referral Project member when both parties were screened by the same legal services staff?

(2) May one client be represented by a Pro Bono Referral Project members and the opposing party be represented by another member when both parties were screened by the same legal services staff?

Our Supreme Court of Appeals has always been sensitive to the need to provide representation to indigent people. In State ex rel. Sowa v. Sommerville, 167 W. Va. 353, 280 S.E.2d 85 (1981), the Court found that the fundamental policy of guaranteeing availability of counsel for indigent criminal defendants outweighed situations which might appear ethically improper. The Court permitted an exception to the general prohibition of associates of a prosecuting attorney's representing criminal defendants for criminal appointments only.

The Committee believes that the importance of providing civil legal representation to eligible indigent clients overrides possible appearances of a conflict of interest so long as fundamental client rights, such as the confidentiality of attorney-client communications and undivided loyalty, are not harmed.

The Committee does not consider either of the two situations described above to present conflicts of interest prohibited by the Rules of Professional Conduct if certain safeguards are employed:

1. Intake should be performed by nonlegal personnel and be restricted to obtain only sufficient information to determine financial eligibility and the type of case. The potential client should be informed of the limited purpose of the intake and of the possibility that the opposing party might also be eligible for legal services representation, although not from two staff attorneys.

2. The retainer agreement should specify that the actual legal services may be rendered by an outside attorney.

3. The pro bono attorney should not have access to the confidential records of the staff attorneys.

4. Actual litigation support for the pro bono attorneys, to the extent it involves confidential information or the participation of the staff attorneys, should be provided by other members of the Pro Bono Referral Project.

5. The files kept by the legal services agencies on the cases referred out should not contain confidential information. It is the Committee's understanding that such files currently contain form status reports and court orders, which would not benefit the opposing party.

This opinion follows the lead taken by Alabama (Opinion 91-36), Arizona (Opinion 91-24) and Florida (92-1) in formulating special conflict of interest rules involving the interaction between legal services agencies and volunteer lawyers in order to provide basic legal services to indigents. Presumably, those agencies are subject to the same regulations of the Legal Services Corporation.

Entered: April 16, 1993.

Charles M. Love, III, Chairman
Committee on Legal Ethics
The West Virginia State Bar