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99 N.J.L.J. 496
June 3, 1976
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 331
Counseling Service Consultant
Retained Privately by Client
The inquiring attorney has been asked to serve as a staff
member of a counseling service in the position of
attorney-consultant. The counseling service is a group of
professional persons - clergy, clinical psychologists, social
workers, and psychiatrists - who give part of their time and
expertise for a nominal remuneration for counseling adults and
family units. The service is under the aegis of a church, although
it is a separate agency which receives funds from clients and from
donations. The service pays staff members $17 per hour. Clients
pay the service $5 per hour and up, based on their ability to pay.
Some of the problems are of a legal nature. The position would
require that the attorney be available to staff members and to the
clients of the counseling service. The inquirer poses two questions
for our advisory opinion:
1. Is it permissible for an attorney to serve as
an attorney-consultant?
2. If, after consultation with a counseling
service client, it is determined that the
client wishes to pursue further legal action,
may the attorney be retained by such person,
and if so, at what rate of compensation?
Question One
A lawyer may ethically participate in a program to provide
legal services to others through an organization that employs him
only if the organization is one of the four "offices or
organizations" specified in DR 2-103(D) as follows:
(1) A legal aid office or public defender office:
(2) A military legal assistance office.
(3) A lawyer referral service operated, sponsored,
or approved by a bar association.
(4) Any bona fide organization that recommends,
furnishes or pays for legal services to its
members or beneficiaries provided the
following conditions are satisfied:
(a) Such organization, including any
affiliate, is so organized and
operated that no profit is derived
by it from the furnishing,
recommending or rendition of legal
services by lawyers and that, if the
organization is organized for
profits the legal services are not
rendered by lawyers employed,
directed, supervised or selected by
it except in connection with matters
where such organization bears
ultimate liability of its member or
beneficiary.
(b) Neither the lawyer, nor his partner,
nor associate, nor any other lawyer
nor any non-lawyer affiliated with
him or his firm directly or
indirectly which have initiated or
promoted such organization which
initiation or promotion shall result
in financial or other benefit to
such lawyer, partner, associate,
affiliated lawyer, or non-lawyer.
(c) Such organization is not operated
for the purpose of procuring legal
work or financial benefit for any
lawyer as a private practitioner
outside of the legal services
program of the organization.
(d) The member or beneficiary to whom
the legal services are furnished,
and not such organization, is
recognized as the client of the
lawyer in the matter.
(e) Any member or beneficiary who is
entitled to have legal services
furnished or paid for by the
organization may, if such member or
beneficiary so desires, select
counsel other than that furnished,
selected or approved by the
organization for the particular
matter involved; and the legal
services plan of such organization
provides appropriate relief for any
member or beneficiary who asserts a
claim that representation by counsel
furnished, selected or approved
would be unethical, improper or
inadequate under the circumstances
of the matter involved and the plan
provides an appropriate procedure
for seeking such relief.
(f) The lawyer does not know or have
cause to know that such organization
is in violation of applicable laws,
rules of court and other legal
requirements that govern its legal
service operations.
(g) Such organization has first filed
with the Supreme Court and at least
annually thereafter on a form
prescribed by the Court a report
with respect to its legal service
plan, showing its terms, its
schedule of benefits, its
subscription charges, agreements
with counsel and financial results
of its legal service activities
which plan shall be subject to
approval by the Court, and to such
rules pertaining to the operation
thereof as the Court may from time
to time adopt. Such organization
shall furnish any additional
information requested by the Supreme
Court.
It is clear that the counseling service is not one of the
first three offices or organizations named above, and to qualify as
an organization described in (4), it must satisfy the condition
set forth in subdivisions (a) through (g). It is our opinion,
therefore, that the inquirer cannot ethically serve as the
attorney-consultant to the counseling service unless and until the
organization qualifies and satisfies said conditions.
Question Two
DR 2-104(A) provides that "[a] lawyer who has given
unsolicited advice to a layman that he should obtain counsel or
take legal action shall not accept employment resulting from that
advice...." There are five exceptions to this general admonition,
one of which applies to a lawyer who participates in the activities
of a qualified legal assistance organization as enumerated in DR
2-103(D)(1) through (4). Thus, unless and until the counseling
service qualifies and satisfies the conditions provided in DR
2-103(D)(4), the attorney-consultant may not ethically be retained
by a client of the service.
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