"Model Rule 6.5... is intended to strike the necessary balance between protecting the fidelity of the attorney-client relationship and enabling lawyers to pursue their public service and participate more broadly in pro bono opportunities."1
In 2002 the American Bar Association updated the Model Rules of Professional Conduct, making substantive and stylistic changes. For poor and homeless Americans the most important change may be a small and largely ignored rule that was added. ABA Model Rule 6.52 restructures lawyers’ conflict of interest duties in certain—very specific—contexts in a way that serves pro bono attorneys and indigent clients very well. This rule effectively helps legal ethics catch up to modern legal services for poor persons.
Rule 6.5 addresses a problem that has developed. Legal service providers for poor Americans have developed a highly efficient mechanism for assisting the innumerable needy clients they encounter. "Limited legal services programs" offer a means to serve the basic legal needs of the most people in the shortest amount of time. Unfortunately, in most states—including Illinois—these highly innovative programs are still saddled with conflict of interest rules written for an entirely different context: the paying client receiving full legal services.
This paper has two major parts. In the first part it details the problem—the inappropriateness of traditional conflict of interest rules for limited legal services programs. In the second part it outlines the solution—ABA Model Rule of Professional Conduct 6.5. This paper concludes that Illinois should not wait to implement Rule 6.5 into its own Rules of Professional Conduct.
The Problem: New Ways of Serving Poor Clients, Old Ways of Handling Conflicts
In response to an overwhelming demand for free legal services for poor Americans, creative legal service providers have developed an efficient means of helping people: "limited legal services" programs. These programs are able to assist more people than traditional programs, but are hampered significantly by traditional rules regarding conflicts of interest.
Innovation in the Face of Unmet Needs: Limited Legal Services Programs
The concept of "limited legal services"3 is important to understanding Rule 6.5. The name itself—limited legal services—is very descriptive of the concept: rather than undertaking full, normal representation of a client, a lawyer provides some limited version. The most typical forms are "advice only clinics" where the lawyer meets a single time with the client to provide advice,4 legal hotlines where a person calls for quick advice,5 and pro se clinics where lawyers counsel individuals in how they can represent themselves in court.6 The essence is that the lawyer only assists the client in a limited way and for a limited time: a single consultation.7 What begins as a limited legal service representation may transform into full representation when the lawyer and the client agree to take the relationship further, at which point it becomes nearly indistinguishable from normal attorney-client interactions.
With Legal Services Corporation programs stretched to capacity8 more and more poor Americans are forced to rely upon pro bono services like those offered through limited legal service programs. In a very real sense, limited legal service programs are the last stop for many poor people, and people who cannot be helped in these programs are likely to not be helped at all.9
The concept of "limited legal services" is therefore important to providing services to poor Americans, especially through pro bono clinics. Volunteer lawyers have a finite amount of time that they can afford to give away for free. That time is maximized by having these lawyers help as many indigent persons as possible.10 The sheer volume of legal problems for which poor people cannot afford representation mandates that volunteer lawyers sift through them quickly to determine where they can make the most impact. Through limited legal assistance programs a much larger volume of clients can be served because the time commitment to each individual is reduced.11 The efficiency of this new model is hampered by timely conflict-checking, reducing the total number of people that can be served, and leaving the remainder entirely without legal assistance.
Traditional Conflict of Interest Rules
Traditional rules regarding conflicts of interest are problematic when applied to limited legal services programs for two primary reasons:
• The current rules are an excessive burden to all those involved with limited legal service programs, and
• The current rules provide very little benefit in the context of limited legal service programs.12
The Current Rules are an Excessive Burden
The current Illinois rules for conflicts of interest excessively burden volunteer lawyers, sponsoring organizations and clients. All three groups are deterred from being involved in legal services and are unduly hassled if they do participate.
The Ethics 2000 Commission was very concerned that lawyers are being deterred from volunteering at limited legal service programs because of conflict of interest concerns.13 Illinois’ current conflict of interest rules could result in a volunteer lawyer’s firm from unnecessarily losing a paying client, thus deterring volunteer lawyers.14
In addition to potentially losing clients under the existing rules, volunteer lawyers are also subjected to a significant hassle in trying to actually run conflict checks in limited legal service contexts. Where lawyers are forced to check conflicts in a context described "normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest"15 some will not be willing to make the effort necessary.
Sponsoring nonprofit organizations and courts are also heavily burdened by the requirements of checking for conflicts of interest. Checking for conflicts of interest may not even be feasible in the context of limited legal service.16 Those organizations that do make the capacity available do so at the expense of time, money and efficiency.
Limited legal services programs are designed with the idea of serving as many clients as efficiently as possible,17 and time and resources used on unnecessary conflict checking means less of each available to serve clients. Moreover, in many contexts, the nature of the population served is an additional barrier. For instance, a legal clinic built into a homeless shelter may find that transient clients have moved on before conflicts can systematically be checked.18 While many organizations may be willing to go through the unnecessarily "cumbersome" process because the benefits of legal services outweigh the costs. It is likely that many other potential court and nonprofit sponsors are unwilling to subject themselves to this process.
Ultimately it is low-income clients who suffer under the current rules that are out of date with modern legal services for poor Americans. First, when volunteer lawyers and sponsoring organizations are excessively burdened, as described above, many will decide not to provide limited legal services. But even if an organization is able to start a limited legal service program that complies with the rules of professional conduct and is able to staff it with volunteer lawyers, its clients will have to endure additional burdens.
Under the Illinois’ Rules of Professional Conduct many poor Illinoisans are forced to disclose excessive personal information. The poor clients may have their most intimate (and embarrassing) moments shared with multiple lawyers, offices and non-legal workers in an effort to allow volunteer lawyers to check for conflicts of any potential clients.19 Not only is this disclosure excessive when compared with the fact that the client is only going to receive limited legal services for their trouble, but is even more unjust when one considers that paying clients are not subject to the same sharing of information.
The need to prescreen clients can result in some clients not being served at all because of the time lag between registration and when they can be seen. A director and officer of Christian Legal Aid of Southeast Michigan wrote of the "multiple-interview screening process that unnecessarily inconveniences the indigent patron, who may not be able to return for numerous visits."20 If a clinic requires that a potential client register days in advance of a clinic date, anyone seeking assistance for the first time the day a clinic is operating will typically not be able to be seen. For example, a lawyer who is sitting at a clinic in a homeless shelter will not be able to help someone who walks in the door asking for help because the lawyer will not have access to his or her conflicts database back at the office.
Clients unable to pay for legal counsel face a time-consuming and complex situation that is disproportionate to that facing a paying client. The "cumbersome, multiple-interview screening process"21 required of many limited legal service programs unnecessarily adds layers of time and complication to a process already saturated by both. The time and complexity added by conflict of interest rules are wildly disproportionate to the time and intricacy of the legal advice that clients receive in many limited legal service programs. In order to have a single conversation with a lawyer—where the lawyer will simply give advice or help the person fill out forms—a client must register days or weeks in advance, providing information about the area of law, "adverse parties" and other minute details to a person who is unlikely to be the lawyer they will ultimately meet with.
The Current Rules Offer Very Limited Benefits
The current rules—with their excessive burdens—might be justified if they prevented gross injustices. The fact though, is that the current rules are unnecessary in the context of limited legal service programs because there are few conflicts in this context and there is a limited harm of conflicts in this context.
There are few conflicts in this context
Though no one has yet reported on this fact,22 there are few conflicts of interest in the context of lawyers volunteering for limited legal service programs. The potential problems avoided under the current rules are minimal. A forthcoming paper by the author reveals the results of a study of a limited legal services clinic attached to a homeless shelter. The study found very few conflicts of interest over the course of one year.23 It is unclear exactly why there are so few conflicts of interest. It is quite possible that volunteer lawyers serve an entirely different group of people in their full-time practices than they do when they volunteer in low-income settings.
There is a limited risk of harm from conflicts in this context
Doreen D. Dodson, writing on behalf of the ABA Standing Committee on Legal Aid and Indigent Defendants, writes:
[W]e do not perceive any realistic likelihood of harm that could result to a client who receives certain forms of limited legal assistance from a lawyer who does not have an actual conflict in the matter. Because the assistance provided will be limited and provided outside of the context of the lawyer’s firm, there is little or no risk that the pressures of other clients of the lawyer’s firm will be brought to bear on the lawyer.24
The limited nature of the interaction between the lawyer and client reduces the danger of harm to clients, especially where the lawyer is not aware of any conflicts of interest.25 In a single discussion that typically lasts less than an hour there is no opportunity to dig very deep into the facts of a case and so the conversation is often focused on explanations of the law and procedures, as well as completing forms.
The Solution: ABA Model Rule of Professional Conduct 6.5
The American Bar Association responded to the problem with Rule 6.5, a rule narrowly tailored to serve low-income Americans in a highly effective way while still retaining most of the protections of traditional conflict of interest rules.
The full text of Rule 6.5 reads as follows:
RULE 6.5: NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICES PROGRAMS
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.26
Rule 6.5 is best understood with three questions:
1) Who comes under the protection of Rule 6.5?
2) When is Rule 6.5 applicable?
3) What is it that Rule 6.5 does?
Model Rule 6.5 was consciously written to include both pro bono attorneys and full-time legal service professionals.27 Though it was written with "an eye to" lawyers who volunteer part of their time for pro bono activities (and work full time in an ordinary law firm), its benefits were extended to legal service professionals as well.28
In order for volunteer or full-time legal service professionals to invoke Rule 6.5 they must be providing "limited legal services," as described above, and they must do so in the context of a court or nonprofit sponsored organization. Individual lawyers undertaking pro bono work on their own cannot hide behind Rule 6.5 if they fail to check for conflicts of interest. This limitation is wise because the sponsoring organization (nonprofit or court) can serve as an additional layer of protection for the client where conflict of interest checking requirements are lessened.29
If a lawyer falls under the auspices of Rule 6.5 she will then be exempt from general conflict of interest rules unless she is aware of the conflict of interest. If the lawyer and client should decide to continue representation beyond the point of limited legal services the normal rules apply though and the lawyer at that point will have to perform a normal conflicts of interest check.
Rule 6.5 specifically exempts lawyers from:
• Rule 1.7 (conflicts with lawyer and concurrent clients)30
• Rule 1.9(a) (former clients)31
• 1.10 (imputed conflict from another lawyer in the volunteer’s firm)32
When operating under a program covered by Rule 6.5, it is "unnecessary for the lawyer to do a comprehensive conflicts check in a practice setting in which it normally is not feasible to do so,"33 meaning a volunteer lawyer need not check his or her firms conflicts database before volunteering. The exemption from Rule 1.10 is perhaps the most powerful one. Lawyers volunteering for court/nonprofit sponsored limited legal service programs do not have to check for conflicts of interest between the low-income client and the present/past clients of other members of the volunteer’s firm. This provision is very important because lawyers of large law firms otherwise would be heavily restricted by the conflicts of hundreds of other lawyers, many of whom the volunteer lawyer may not even have met.
All of the relaxations of the conflict of interest rules mentioned above presuppose that the volunteer lawyer is unaware of the conflict of interest. If the volunteer lawyer knows of a conflict of interest, he or she may not provide even limited legal services to the client. This exception to the general rule that conflicts of interest rules do not apply is very large and provides vast protection to low-income clients. For example, a volunteer lawyer that regularly evicts tenants for a landlord cannot knowingly counsel one of those individuals recently evicted. If the volunteer lawyer were to do so—with whatever motives she might have—she would be subject to disciplinary action by the state. This provision provides the right balance between protecting clients from wayward attorneys and freeing volunteers from the restrictions of conflicts of which only a computer database is aware.
Because Rule 6.5 is intended only for limited legal services situations, it becomes inapplicable if the lawyer and client decide to undergo traditional representation.34 This requirement makes sense because if the representation becomes ordinary, the reasons that limited legal services need special treatment are no longer applicable. Likewise the reasons that conflicts of interest checking is so difficult in the context of limited legal services are removed.
The Ethics 2000 Commission of the American Bar Association noticed a problem. They discovered that a slight modification of the rules of conflicts of interest in a very specific area could profoundly assist lawyers in providing legal services to poor Americans. ABA Model Rule of Professional Conduct Rule 6.5 is the result. It reduces the unduly burdensome nature of prior conflict of interest rules on limited legal services programs, and does so in a narrowly tailored fashion designed to still retain the primary benefits of conflict of interest rules. Illinois should not waste any time in making Rule 6.5 a part of its Rules of Professional Conduct.
The author will soon be publishing a longer article on the results of a quantitative study of conflicts of interest at Hope Legal Clinic35 at Hesed House in Aurora—a limited legal services clinic for homeless people.
Anyone wishing to assist with, or receive more information about, Rule 6.5 or Hope Legal Clinic should contact the author: 630-897-2165 or by e-mailing:
RyanDowd@HesedHouse.org (note: there is only one "s" in "Hesed.")
1 Will Hornsby, Pro Bono Ethics Counsel: Checking for Conflicts, 7 Dialogue 2 (Spring 2003) available at http://www.abanet.org/legalservices/dialogue/03spring/dialsp03.pdf (last visited July 27, 2003).
2 Model Rules of Prof’l Conduct R. 6.5 (2002).
3 Also sometimes called "unbundled legal services." Jona Goldschmidt, In Defense of Ghostwriting, 29 Fordham Urb. L. J. 1145 (2002).
5 Model Rules of Prof’l Conduct R. 6.5 cmt. (2002).
6 Peter A. Joy & Robert R. Kuehn, Conflict of Interest and Competency Issues in Law Clinic Practice, 9 Clinical L. Rev. 493, 560 (2002).
7 Brian D. Wassom, Removing an Ethical Barrier to Serving the Poor: Michigan’s Current Ethical Rules Hamper Limited Legal Aid Programs, 81 Mich. B. J.54 (2002).
8 Margaret Martin Barry, Accessing Justice: Are Pro Se Clinics a Reasonable Response to the Lack of Pro Bono Legal Services and Should Law School Clinics Conduct Them?, 67 Fordham L. Rev. 1879 (1999).
9 Model Rules of Prof’l Conduct R. 6.5 Reporter’s Explanation of Changes (2002) (stating that Rule 6.5 is intended for programs that serve "persons of limited means who would otherwise go unrepresented.").
10 Letter from Doreen D. Dodson, ABA Standing Committee on Legal Aid and Indigent Defendants, to Hon. E. Norman Veasey, Chair of the ABA Commission on Evaluation of the Rules of Professional Conduct (June 21, 2000) available at http://www.abanet.org/cpr/dodson20.html (last visited July 27, 2003).
12 By this statement I do not mean more precisely that the current rules of conflicts of interest offer limited benefits over those still retained in Rule 6.5.
13 Model Rules of Prof’l Conduct R. 6.5 Reporter’s Explanation of Changes (2002) (stating that "Rule 6.5 is a new Rule in response to the Commission’s concern that a strict application of the conflict-of-interest rules may be deterring lawyers from serving as volunteers...").
14 Model Rules of Prof’l Conduct R. 6.5 cmt. 4 (2002) (stating that a "lawyer’s participation in a short-term limited legal services program will not preclude the lawyer’s firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program’s auspices." ).
15 Model Rules of Prof’l Conduct R. 6.5 cmt. 1 (2002).
16 Model Rules of Prof’l Conduct R. 6.5 Reporter’s Explanation of Changes (2002).
17 Letter from Doreen D. Dodson, ABA Standing Committee on Legal Aid and Indigent Defendants, to Hon. E. Norman Veasey, Chair of the ABA Commission on Evaluation of the Rules of Professional Conduct (June 21, 2000) available at http://www.abanet.org/cpr/dodson20.html (last visited July 27, 2003); Margaret Martin Barry, Accessing Justice: Are Pro Se Clinics a Reasonable Response to the Lack of Pro Bono Legal Services and Should Law School Clinics Conduct Them?, 67 Fordham L. Rev. 1879,1895 (1999).
18 Brian D. Wassom, Removing an Ethical Barrier to Serving the Poor: Michigan’s Current Ethical Rules Hamper Limited Legal Aid Programs, 81 Mich. B. J. 54 (2002) ("organizations must "adopt a cumbersome, multiple-interview screening process that unnecessarily inconveniences the indigent patron, who may not be able to return for numerous visits." ).
19 For instance at Hope Legal Clinic at Hesed House in Aurora, Illinois, potential clients must share the details of their case with the coordinator who then faxes it out to all of the volunteering
lawyer’s offices so that each volunteer can independently check for conflicts of interest.
20 Brian D. Wassom, Removing an Ethical Barrier to Serving the Poor: Michigan’s Current Ethical Rules Hamper Limited Legal Aid Programs, 81 Mich. B. J.54 (2002).
22 The author has completed a study of conflicts of interest in the context of a limited legal service clinic that shows very few conflicts of interest. The results of this study will be published shortly.
23 This article is not designed to reveal the results of that study, but the study found that conflicts of interest were reported in only 1.528% of potential lawyer-client pairings.
24 Letter from Doreen D. Dodson, ABA Standing Committee on Legal Aid and Indigent Defendants, to Hon. E. Norman Veasey, Chair of the ABA Commission on Evaluation of the Rules of Professional Conduct (June 21, 2000) available at http://www.abanet.org/cpr/dodson20.html (last visited July 27, 2003).
25 The protections afforded by Rule 6.5 are inapplicable if the lawyer is aware of a conflict of interest.
26 Model Rules of Prof’l Conduct R. 6.5 (2002).
27 Examples of legal service organizations include the Legal Services Foundation in Chicago and Prairie State Legal Services in northern Illinois.
28 Margaret Colgate Love, Update on Ethics 2000 Project and Summary of Recommendations to Date, Second Revision, August 8, 2000, available at http://www.abanet.org/cpr/mlove061400.html (last visited July 27, 2003).
29 Model Rules of Prof’l Conduct R. 6.5 Reporter’s Explanation of Changes (2002).
30 Illinois Rules of Prof’l Conduct R. 1.7 (2002).
31 Id. at R. 1.9(a).
32 Id. at R. 1.10.
33 Model Rules of Prof’l Conduct R. 6.5 Reporter’s Explanation of Changes (2002).
34 Model Rules of Prof’l Conduct R. 6.5 cmt. ¶5 Reporter’s Explanation of Changes (2002).
35 Kelley Quinn, At This Shelter, More Than Creature Comforts, Chi. Daily L. Bull., Feb. 25, 2003 at 3; Ryan J. Dowd, Homelessness & the Law in Kane County: The Creation of Hope Clinic, Kane Co. B. Briefs, Feb. 2003 at 26.
Ryan J. Dowd is a graduate of North Central College, B.A. in Religious Studies (2000); Northern Illinois University, College of Law, J.D. (expected December 2003); Northern Illinois University, Master’s of Public Administration (expected December 2003). Mr. Dowd is the Coordinator/Founder of Hope Legal Clinic at Hesed House in Aurora, Illinois. After taking the February Bar Exam, Mr. Dowd will assume the position of Associate Director of Hesed House, Inc. and Public Action to Deliver Shelter, Inc. (PADS®) in Aurora. He can be reached at RyanDowd@hesedhouse.org.