Joan Brief, an attorney in private practice, has agreed to accept the referral of individuals who are screened by the local legal aid office. Legal aid assures that the person is financially eligible for services. If the problem is urgent enough, legal aid will take the case. If the matter is not urgent, but there seems to be a need for help or representation, they will refer the person to Joan. Joan is given the discretion to try to advise and assist the client to a point. If the matter gets too involved, she can refer the person back to legal aid so than an attorney can be assigned for more complete follow-up. If Joan chooses, however, she may take the case as far as she believes is justified.
Legal aid is getting ready to refer Adam Needy to Joan, for services. At what point does the following contact become an attorney-client relationship between Joan and Adam, requiring a retainer agreement and a clear understanding of the mutual expectations of the attorney and client? What other ethical issues arise under this fact pattern?
- Adam makes contact with legal aid and is found financially eligible. He is told that while his problem is not one legal aid is able to handle, he may contact attorney Joan Brief at her telephone number as she has agreed to offer information and assistance to people like him. Adam is advised that Joan may not be able to actually represent him, but may be able to offer some help.
- Adam calls Joan, whose secretary schedules a telephone conference.
- Adam describes his landlordís threat to evict him at some point in the future.
- Joan refers Adam to the PALawHelp Web site, where he can find information on tenant rights in eviction cases and she offers to mail him a copy of the pamphlet.
- Adam says that to put his mind at ease, he really needs more immediate information and asks Joan to tell him his rights. Joan responds by saying that while she cannot advise him specifically as to how the law affects his circumstances, she can describe the basic rules of landlord-tenant law as it governs eviction and proceeds to do so.
- Adam asks some questions. Can my landlord evict me before the end of my lease? Donít I have any rights, like the right to have enough heat for my family? Can my landlord just show up and put a lock on the door?
- Joan says that while she is not representing Adam in the matter, she can describe for him how the law generally treats these types of questions. She goes on to talk about what the law says as it governs eviction when there is a lease. She describes the principles of the warranty of habitability and describes the legal process for eviction. She tells Adam that she cannot comment on exactly how the law would apply to Adamís particular circumstances, but she can describe how the law works generally.
- Adam and Joan talk some more. Joan becomes more concerned about Adamís young children and Adamís fears. She then offers some specific advice as to how the law applies to Adamís situation, and Joan tells Adam how he should respond to the landlord.
- Is there an attorney-client relationship? If so, when did an attorney-client relationship come about?
- Are there additional steps that Joan might have taken short of creating an attorney-client relationship?
- Should Joan have done a conflict check before even beginning the call from Adam? What happens if it turns out her partner has represented the landlord in the past ó before Joan joined the firm?
- What are Joanís obligations once the relationship has been created?
Too Many Problems; Too Little Time
Mervin Multitude is referred by the local legal aid program to a pro bono attorney, Otto Overwhelmed. The legal aid program determines that Mervin needs assistance in defending against a mortgage foreclosure. Otto agrees to accept the case. He files an answer to the mortgage foreclosure action and thereby enters his appearance. It is Ottoís view that there are some defects in the mortgage foreclosure action itself. For example, he believes the amount of debt is overstated. He is also aware that by buying some time, the client has a decent chance of getting back on his feet and paying up before the sale; avoiding the foreclosure.
During the course of representing Mervin, Otto becomes aware of some other legal problems that Mervin faces. Otto tells Mervin that he will be unable to represent Mervin in any of the problems listed below and that his representation will be limited to the mortgage foreclosure action. Can Otto ďunbundleĒ the services he is providing to Mervin? Is Otto under any obligation to handle any of these matters by virtue of the fact that he has accepted the mortgage foreclosure case? Should Otto do anything to confirm that the representation is limited?
- While it appears that Mervin has a valid claim to make under the Homeowners Emergency Mortgage Assistance Program, which can help catch up on the mortgage, avoiding the foreclosure by offering financial assistance, Otto says that he cannot get involved in this aspect of Mervinís circumstances.
- There may be a legitimate claim as to whether the mortgage debt itself reflects unlawful predatory lending, but Otto rules this out, too.
- Mervinís financial problems seem to stem mainly from his separation from his wife, who was the primary wage-earner in the family. She has filed for divorce, and Mervin is presently unrepresented in the divorce. Otto says no to Mervinís request that Otto represent him in the divorce case.
- Mervin says that he thinks all his financial problems could be overcome if he could just get a patent on his new invention for a solar powered washing machine. He needs help filing for the patent. Otto says it wonít wash.
Is Anyone Ever Too High Up to Take Pro Bono Cases?
The mayor of Utopia, Pa., also happens to be an attorney who very much believes in access to justice for those unable to afford representation. He has volunteered to accept pro bono cases. Is there any reason he cannot accept any of the referrals listed below? If he accepts the case, is there anything special he should do?
- The client is a resident of Utopia with a seemingly valid defense against an out-of-town car dealership that sold the client a used car.
- The client is a tenant with complaints about the condition of his housing, which may be in violation of the city housing ordinances, although the city previously has been called and has not found any violations. The mayor is willing to take the case.
- The client is named as a defendant in a lawsuit brought by a person who contributed to the mayorís campaign. The mayor does not know the contributor, the contribution isnít a lot of money and the mayor believes strongly enough in the right to representation that he is still willing to take the case.
Would the answers be any different if instead of the mayor, it was the mayorís chief counsel who was undertaking the representation? What if it was a staff attorney under the supervision of the chief counsel?
What if the mayor said he couldnít actually represent the client but would make some calls to the city housing office to see if he could help resolve the situation?