|
1) IT IS PERMISSIBLE FOR A LAWYER TO BE RETAINED BY A NON-PROFIT
STUDENT SENATE ORGANIZATION TO PROVIDE LEGAL SERVICES TO THE SENATE
AND ALSO TO PROVIDE GROUP LEGAL SERVICES TO THE STUDENT MEMBERS
OF THE SENATE UNDER CURRENTLY EXISTING CONSTITUTIONAL INTERPRETATIONS,
BUT ONLY IF: (A) THE RENDITION OF GROUP LEGAL SERVICE IS NOT A PRIMARY
PURPOSE OF THE SENATE AND IS INCIDENTAL TO ITS PRIMARY PURPOSES,
AND (B) THE SENATE DERIVES NO FINANCIAL BENEFIT FROM THE GROUP LEGAL
SERVICES, AND (C) THE INDIVIDUAL STUDENT MEMBER, AND NOT THE SENATE,
IS RECOGNIZED AS THE LAWYER'S CLIENT IN EACH INDIVIDUAL MATTER.
CODE PROVISIONS INTERPRETED
DR 2-103(D).
A lawyer shall not knowingly assist a person or organization that
recommends, furnishes, or pays for legal services to promote the
use of his services or those of his partners or associates. However,
he may cooperate in a dignified manner with the legal service activities
of any of the following, provided that his independent professional
judgment is exercised in behalf of his client without interference
or control by any organization or other legal person:... (5) Any
other non-profit organization that recommends, furnishes, or pays
for legal services to its members or beneficiaries, but only in
those instances and to the extent that controlling constitutional
interpretation at the time of the rendition of the services requires
the allowance of such legal service activities, and only if the
following conditions, unless prohibited by such interpretation,
are met: (a) The primary purposes of such organization do not include
the rendition of legal services. (b) The recommending, furnishing,
or paying for legal services to its members is incidental and reasonably
related to the primary purposes of such organization. (c) Such organization
does not derive a financial benefit from the rendition of legal
services by the lawyer. (d) The member or beneficiary for whom the
legal services are rendered, and not such organization, is recognized
as the client of the lawyer in that matter.
The above disciplinary rule is a clear departure from Cannon 35,
which specifically provided that a lawyer might represent an organization
on its legal matters, but such employment should not include legal
service to the members of the organization in respect to their individual
affairs.
FACTUAL SITUATION
The Committee has received inquiries from the student senate of
Kearney State College and from the student senate of the University
of Nebraska as follows.
Each senate wishes to engage (or has engaged) a lawyer for a monthly
retainer to render the following services:
(a) To represent the senate on all legal
matters including lobbying activities.
(b) To
provide legal services to individual student members of the senate
on their individual legal problems. The fee for such services is
to be included in the retainer (or optionally in the case of Nebraska
University, where there may be an additional fee charged a student
at a reduced pre-arranged rate).
(c) The attorney will be available for such
student consultations on campus at specified periods of time.
DISCUSSION
DR 2-103(D)(5) would appear to permit the proposed group legal service
if we are correct that the following assumptions do in fact exist:
(a) That the senate is a non-profit organization. (b) That the student
seeking legal assistance is in fact a member of the senate. (c)
That the rendition of legal service is not a primary purpose of
the organization but is only an incidental one. (d) That the senate
derives no financial benefit from the group legal service. (e) That
the attorney at all times maintains his personal and unfettered
relationship of attorney and client with the individual student,
and is thus free of all control by the senate.
It would appear immaterial as to whether the group service was fully
included in the retainer fee or whether the individual students
might pay an additional reduced fee. The Kearney senate indicated
that the lawyer would merely give advice but would not represent
the student (presumably in court). Under the disciplinary rule,
it appears to be immaterial whether the service involves mere counseling
or court appearances.
The disciplinary rule is conditioned upon the fact that the "controlling
constitutional interpretation at the time of the rendition of the
services requires the allowance of such legal service activities."
This opinion is based upon current U. S. Supreme Court decisions
apparently recognizing the prior and paramount needs of individuals
to legal services. NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328 (1963);
Brotherhood of R.R. Trainmen v. Virginia, 371 U.S. 1, 84 S.Ct. 1113
(1964); United Mine Workers v. Illinois State Bar, 389 U.S. 217,
88 S.Ct. 353 (1967). It is conceivable that a reversal of the above
decisions would also reverse the approval of group legal services
under the conditions imposed by the disciplinary rule.
73-3
|
