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                                             99 N.J.L.J. 496
                                            June 3, 1976


Appointed by the New Jersey Supreme Court


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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