State Bar of Arizona Ethics Opinions
87-07: Conflicts; Solicitation; Pro Bono
Permissible to solicit pro bono employment from prospective indigent client, provided there is no motive for pecuniary gain. Attorney may pay costs of litigation, or request client to pay as much as possible, or receive payment from a third party.
An attorney learns, through a newspaper account, of an individual who is involved in a legal problem of public importance. The individual is indigent. Recognizing a duty to the community to perform pro bono work, the attorney wishes to contact the indigent person and to offer his services on a pro bono basis.
- Is it improper for an attorney to approach the individual and offer to represent that individual in a criminal matter, when the attorney is aware prior to'the solicitation that the individual is without funds to pay the attorney, and the attorney makes clear. at the time of the solicitation that he will perform services on a pro bono basis, without payment of any fees or costs?
- Same question as in No. 1, except that the attorney asks the client to pay the costs of litigation through the client's own funds or through third party funds.
- Same question as in No. 1, except that a civil matter is involved.
- Same question as in No. 2, except that a civil matter is involved.
ETHICAL RULES INVOLVED
ER 1,6. Confidentiality of Information
ER 1.7. Conflict of Interest: General Rule
ER 1.8. Conflict of Interest: Prohibited Transaction
ER 6.1. Zro Bono Publico Service
ER 7.3. Direct Contact with Prospective Client
The Rules of Professional Conduct ("Rules"), as adopted in Arizona, encourage attorneys to provide public service legal work. ER 6.1, in particular, states that “A lawyer should render public interest legal service." The Comment to ER 6.1 intones that “[e]very lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged”. ER 6.1 further provides that an attorney may satisfy his ethical obligation to render public interest legal service “by providing professional services at no fee or a reduced fee to persons of limited means". ER 6.1 does not distinguish criminal cases from civil cases.
The current inquiry also engages the provisions of other Rules. Of particular relevance are ER 7.3, which regulates solicitation; ER 1.8 (e), which deals with financial assistance to clients; and ER 1.8 (f), which regulates an attorney's receipt of compensation from someone other than the client.
Solicitation of prospective clients is governed by ER 7.3, which states:
A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship by mail, in person, or otherwise, when a motive for the lawyer's doing so is the lawyer's pecuniary gain. The term “solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.\
For purposes of this inquiry, we assume that the attorney does not have a family or prior professional relationship with the prospective client. Absent such a prior relationship, ER 7.3 permits an attorney to solicit a prospective client only if the attorney has no motive of pecuniary gain. The use of the expression "a motive” in ER 7.3 indicates that the attorney must have no motive of pecuniary gain, no matter how small or indirect, in soliciting the representation. Thus, for example, if the attorney solicits pro bono employment, but does so with the expectation that the representation1 will ultimately enhance his income due to the publicity involved in the matter, then the attorney's solicitation2 is an unethical solicitation. Such publicity is, of course, more easily obtainable in a high-profile case. In short, the key ethical issue involving solicitation concerns motive. This is true regardless of whether the case is criminal or civil.
1This analysis is supported by the fact that ER 7.3 of the ABA Model Rules qualifies “motive" and prohibits solicitation only when a “significant motive" for the solicitation is the lawyer’s pecuilary gain. This qualification was deleted from ER 7.3 when the Rules were adopted in Arizona.
2This opinion does not addresss the constitutional issues involving lawyer solicitation considered in such cases as Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 105 S. Ct. 2265 (1985), and In Re R.M.J., 455 U.-5.-191, 102 S. Ct. 929, 71 L. Ed.2d 64 (1982). Legal questions are outside the jurisdiction of this Committee.
ER 1.8 (e) generally prohibits a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except in cases of indigency, where costs may be advanced:
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
a lawyer may advance court costs and expenses of litigation, provided the client remains ultimately liable for such costs and expenses; and
a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
Neither ER 1.8 nor the Comment to ER 1.8 draws a distinction between paying costs on behalf of an indigent3 client in a criminal case and paying costs on behalf of an indigent client in a civil case.
Of course, the fact that ER 1.8(e) (2 ) allows an attorney to pay costs and expenses of litigation on behalf of an indigent client does not mean that an attorney must pay them, or that he must pay all of them, if he pays any of them. On the other hand, when payment of costs and expenses of litigation is by a third party, rather than by the attorney or client, consideration should be given to ER 1.8(f ). ER 1.8(f ) provides that:
A lawyer shall not accept compensation for representing a client from one other than the client unless:
- the client consents after consultation;
- there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
- information relating to representation of a client is protected as required by ER 1.6.
It is not clear whether "compensation” as used in ER 1.8(f ) is applicable to the costs and expenses of litigation. The comment to ER 1.8 seems to construe "compensation” to mean the cost of a "lawyer's services."
Regardless of whether ER 1.8(f ) literally applies to payment of litigation costs by third parties, its provisions articulate the attorney's general obligations of loyalty and confidentiality
3"Indigent” is not defined in the Rules. Indigent status is a factual-legal question that is outside of the Committee's jurisdiction. Before relying on ER 1.8(e ) (2 ), of course, the lawyer should confirm that the prospective client is indigent.
owed to a client under ER 1.64 and ER 1.7,5 and should accordingly govern the potential use of third-party funds. See, e.g., Geoffrey C. Hazard and W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 166 ( 1986).
4The text of ER 1.6 states:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a) (2).
(b) A lawyer shall reveal such information to the extent the lawyer yeasonably believes necessary to prevent the client from commiEting a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.
(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.
(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.
5The text of ER 1.7 states:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
In summary, it is not unethical for an attorney to solicit engagement by a prospective indigent client, in either a criminal or a civil matter, as long as the attorney, in doing so, does not have any motive for pecuniary gain. In addition, an attorney representing an indigent client, in either a civil or a criminal matter, may pay the costs and expenses of litigation on behalf of the client. The Rules do not prohibit the attorney from requesting the client to pay as much of the costs and expenses of litigation as possible. Neither do they prohibit the payment of such costs by third parties, as long as the principles articulated in ER 1.8(f ) are followed.
Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1987