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ATTORNEYS FORMERLY EMPLOYED BY A LEGAL AID OFFICE AS DIRECTOR AND
COUNSEL WHO HAVE RESIGNED TO ENTER PRIVATE LAW PRACTICE MAY BE HIRED
ON A PART-TIME BASIS FOR A TEMPORARY PERIOD TO ASSIST THE LEGAL
AID OFFICE UNTIL SUCH TIME AS REPLACEMENTS ARE SECURED.
CODE
PROVISIONS INVOLVED
Disciplinary Rule 2-101 and 2-103 contain detailed provisions prohibiting
attorneys from utilizing any agency to promote the use of their
service in private practice. The latter rule recognizes that a private
attorney may properly cooperate with the Legal Aid Office as long
as there is no interference with the exercise by the attorney of
his independent professional judgment.
In discussing the ethical considerations involved in Legal Aid activities
EC 2-25 states:
"The basic responsibility for providing legal services for
those unable to pay ultimately rests upon the individual lawyer,
and personal involvement in the problems of the disadvantaged can
be one of the most rewarding experiences in the life of a lawyer.
Every lawyer, regardless of professional prominence or professional
workload, should find time to participate in serving the disadvantaged.
The rendition of free legal services to those unable to pay reasonable
fees continues to be an obligation of each lawyer, but the efforts
of individual lawyers are often not enough to meet the need. Thus
it has been necessary for the profession to institute additional
programs to provide legal services. Accordingly, legal aid offices,
lawyer referral services, and other related programs have been developed,
and others will be developed, by the profession. Every lawyer should
support all proper efforts to meet this need for legal services."
THE
FACTUAL SITUATION
The Director of a Legal Aid Office has resigned to enter private
practice and such office has also simultaneously lost the services
of one of its attorneys. The Board of Directors and the Legal Aid
Society have not yet been able to find successors for the resigned
attorneys and desire to obtain such attorneys on a part-time basis
for a temporary period until replacements are found. The Board has
stipulated that such part-time counsel shall accept no clients in
private practice who have sought the services of the Legal Aid Society
or sought a lawyer through the Lawyer Referral Service. The Board
has also stipulated that such counsel shall not join the lawyer
referral group until they have completely severed their-employment
with Legal Aid. It is contemplated by the Board that the temporary
part-time service shall not exceed 60 days.
DISCUSSION
The matter of attorneys maintaining a private law practice and at
the same time being engaged in Governmental or public work has been
considered under the previous Canons of Ethics. Such an arrangement
has been held to not be objectionable per se. In Formal Opinion
No. 192 the opinion states:
"The principle applied in those opinions is that an attorney
holding public office should avoid all conduct which might lead
the layman to conclude that the attorney is utilizing his public
position to further his professional success or personal interests."
"
. . . there is no objection to his retaining his membership in a
law firm or in sharing the earnings of the law firm, provided such
firm does not represent interests adverse to the employer, and the
public is not misled."
Some of the restrictions relevant to the operation of Legal Aid
clinics were reviewed by the American Bar Association Committee
in Informal Opinion No. 1208. That opinion involved a clinic conducted
by a law school in which certain attorneys were utilized on a part-time
basis. In this connection the opinion states:
"Canon 2, CPR, stresses that every lawyer should aid in making
legal services fully available. EC2-26 tells us that each lawyer
should accept his share of the burden of rendering 1egal services
in those matters which are unattractive to the bar generally."
Formal
Opinion No. 324 adopted August 9, 1970, in connection with the operation
with the Legal Aid Society points out that there has been a great
increase in legal activity of this character and that Canon 5 of
the Code of Professional Responsibility stresses that nothing should
interfere with the duty of a lawyer to exercise independent professional
judgment on behalf of any client.
It is well-known that the systems for providing legal services for
the poor have taken on various arrangements. One of these in the
State of Wisconsin has been termed a Judicare Program in which all
lawyers participate on a part-time basis.
We see nothing objectionable in the Code of Responsibility to the
utilization by a Legal Aid Society of part-time lawyers so long
as all of the restrictions and safe guards above mentioned are not
violated. There are, of course, inherent in such arrangements the
dangers referred to in the Code of Professional Responsibility.
We think the Board of Directors recognized these problems fully
in providing that continued employment by the Legal Aid Office was
to be on a temporary basis and the most satisfactory arrangement
is to have full-time personnel wherever possible in order to avoid
exposure to these problems.
We find nothing in the existing statutes as to legal services inconsistent
with the foregoing views. See 42 U.S.C.A. sec. 2809 (3). We are
further informed that no regulation of the federal administrative
agency prohibits part-time employment although regulations adopted
some years ago encouraged the utilization of fulltime personnel
wherever possible. It is our understanding also that pending legislation
in Congress would require full-time personnel under the suggested
reorganization of this program but this legislation has not yet
been enacted.
73-10
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