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A.LOCAL BAR ASSOCIATION MAY FORM A PANEL OF ATTORNEYS, EACH OF
WHOM ARE WILLING TO SPEND A PERIOD OF TIME ONE DAY A WEEK ON A
LOCAL COLLEGE CAMPUS TO MAKE LEGAL SERVICES READILY AVAILABLE
TO A STUDENT SENATE OF THE CAMPUS AND TO INDIVIDUAL STUDENTS IN
NEED OF LEGAL SERVICES PROVIDED THEY FOLLOW THE FOLLOWING RULES:
(1) THE LAWYER ON CAMPUS CAN ADVISE THE STUDENTS ON ANY CIVIL
MATTER. (2) IF THE STUDENT HAS A LEGAL PROBLEM WHICH REQUIRES
LITIGATION, OR OTHER SUBSTANTIAL LEGAL SERVICES, THE LAWYER ON
CAMPUS WILL PRESENT THE STUDENT WITH THE ROSTER OF LAWYERS WHICH
HAVE AGREED TO PARTICIPATE, AFTER STRIKING HIS OWN NAME AND THE
OTHER LAWYERS IN HIS FIRM. (3) THE LAWYER ON CAMPUS SHALL MAKE
NO RECOMMENDATION AS TO WHICH LAWYER ON THE ROSTER SHOULD BE CONSULTED
OR RETAINED. (4) WHEN CONSULTED ABOUT ANY CRIMINAL MATTER THE
LAWYER ON CAMPUS WILL NOT GIVE ADVICE BEYOND PRESENTING THE ROSTER
OF LAWYERS OR EXPLAINING THE PROCEDURE FOR OBTAINING APPOINTMENT
OF AN ATTORNEY BY THE COURT.
INQUIRY MADE
Inquiry is made on behalf of the Buffalo County Bar Association
whether the formulation of a Lawyer Referral Service by the said
bar association in response to a request of the student senate
of the Kearney State College to make legal services available
to the students as well as the student senate, is in compliance
with the Code of Professional Responsibility.
FACTS
The Buffalo County Bar Association set up a lawyer referral office
on the campus of the Kearney State College and agreed to have
an attorney on campus for at least two hours one day each week
that school is in session. The student senate will pay the sum
of $50.00 per session for the services of such an attorney to
a nonprofit corporation to be formed. The fees to be paid by the
student senate to the nonprofit corporation have not been definitely
earmarked, but the purposes generally discussed were "continued
legal education for the bar association" and the "purchase
of additional law books for the county law library".
The ground rules adopted by the bar association are:
1. The lawyer on campus can advise the
student on any civil matter.
2. If the student has a legal problem which
requires litigation, or other substantial legal services, the
lawyer on campus will present the student with the roster of lawyers
after striking his own name and the names of other lawyers in
his firm.
3. The lawyer on campus shall make no recommendation
as to which lawyer on the roster should be consulted or retained.
4. When consulted about any criminal matter
the lawyer on campus will not give advice beyond presenting the
roster of lawyers or explaining the procedure for obtaining appointment
of an attorney by the Court.
A total of twenty-four lawyers have signed up and agreed to serve
at least one session during the present school year. Two or three
more have agreed to serve if and when The Advisory Committee approves
the said lawyer referral system as being in compliance with the
Code of Professional Responsibility. The system commenced on September
5, 1974, the date this inquiry was made.
FUNCTION OF ADVISORY COMMITTEE
The Advisory Committee has long adhered to the policy summarized
in Opinions No. 68-1, which you have in your Nebraska
Lawyers Desk Book, viz,
"Opinions of The Advisory Committee on matters of professional
ethics are limited to situations in which a lawyer seeks the opinion
of the Committee as to the ethical propriety of a course of action
in which he desires to engage."
There are several reasons for the justification of this policy,
the most obvious of which is that under the Disciplinary Rules,
the Committee may be called upon to review disciplinary proceedings
involving the conduct or action which has already been taken, and
the Committee cannot be in the position of having prejudged the
matter.
However
since some of the lawyers in your bar association have declined
to participate until an opinion of approval has been received from
The Advisory Committee, the Committee feels an exception to the
general policy is warranted in this instance.
ETHICAL
CONSIDERATIONS AND DISCUSSION
EC 1-1 provides:
"A basic tenet of the professional responsibility of lawyers
is that every person in our society should have ready access to
the independent professional services of a lawyer of integrity and
competence. Maintaining the integrity and improving the competence
of the bar to meet the highest standards is the ethical responsibility
of every lawyer."
EC
2-15 provides:
"The legal profession has developed lawyer referral systems
designed to aid individuals who are able to pay fees but need assistance
in locating lawyers competent to handle their particular problems.
Use of a lawyer referral system enables a layman to avoid an uninformed
selection of a lawyer because such a system makes possible the employment
of competent lawyers who have indicated an interest in the subject
matter involved. Lawyers should support the principle of lawyer
referral systems and should encourage the evolution of other ethical
plans which aid in the selection of qualified counsel."
Lawyer referral panels of different types have been approved by
the Committee on Professional Ethics of The American Bar Association.
For instance its Formal Opinion 205 provides:
"A local bar association may form a panel of attorneys who
are willing to serve low-income persons at fees which are within
the financial ability of the client if (1) the plan is supervised
by the local bar association, (2) no individual attorney's name
is advertised, and (3) such publicity as is necessary is directed
toward apprising low-income persons of the method and means by which
the plan is to be carried out."
In
discussing this rule the committee said in part:
"We are of the opinion that the plan here presented does not
fall within the inhibition of the Canon. No solicitation for a particular
lawyer is involved. The dominant purpose of the plan is to provide
as an obligation of the profession competent legal services to persons
in low-income groups at fees within their ability to pay. The plan
is to be supervised and directed by the local Bar Association. There
is to be no advertisement of the names of the lawyers constituting
the panel. The general method and purpose of the plan only is to
be advertised. Persons seeking the legal services will be directed
to members of the panel by the Bar Association. Aside from the filing
of the panel with the Bar Association, there is to be no advertisement
of the names of the lawyers constituting the panel. If these limitations
are observed, we think there is no solicitation of business by or
for particular lawyers and no violation of the inhibitions of Canon
27."
This Formal Opinion 205 has been followed by several formal and
informal opinions and cited in many others. Formal Opinion 291 may
have some application here. It provides:
"Publicity
for a lawyer's referral service need not state that the service
is designed for persons in low income groups.
A
local bar association operating a lawyers' referral service should
not operate the plan for the benefit of any particular group of
attorneys although it may use its reasonable discretion in deciding
whether to confine the referral panel to bar association members
only.
A
bar association may require members of a lawyer referral panel to
help finance the service either by a flat charge or a percentage
of fees collected."
It
is the opinion of the committee that the referral panel set up by
the Buffalo Bar Association under the ground rules prescribed if
strictly adhered to, does not violate the Code of Professional Responsibility.
74-7
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