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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1987-3
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
April 30, 1987
ACTION: Formal Opinion
Lawyer X, a staff attorney at a government agency which receives, investigates and prosecutes complaints of employment discrimination, has learned from a complainant, after a probable cause finding of discrimination was issued by the agency, information that would, if an attorney-client relationship existed, be protected as a confidence or secret and that is likely to be materially adverse to the complainant's case.
Lawyer X asks (i) whether he has the ethical obligation, when acting as counsel for both the complainant and the agency (a dual relationship created by statute), to disclose the materially adverse information to the attorney for the employer and (ii) whether he has the ethical obligation, when acting as counsel for only the agency, to disclose the information to the employer. We answer the first inquiry in the negative and the second inquiry in the affirmative, subject to the conditions discussed below.
I. The First Inquiry
When by statute Lawyer X is counsel for both the complainant and the agency, the Committee is of the opinion that he does not have the ethical obligation to disclose the materially adverse information to the employer's attorney, provided that, in so doing, Lawyer X is not required to make any misleading or false representations to the Tribunal. The complainant confided to Lawyer X in the course of the attorney-client relationship and, as a result, the information should be maintained, in most cases, in confidence by Lawyer X.
A. The New York Code of Professional Responsibility requires that a lawyer preserve the confidentiality of a client's "secrets" and "confidences" and prohibits the lawyer's "use [of] a confidence or secret of his client to the disadvantage of the client." DR 4-101(B)(1), (2). A "confidence" refers to information protected by the attorney-client privilege and a "secret" is defined as:
other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely to be detrimental to the client.
The lawyer's duty to maintain the confidentiality of a client's communications is one of the most solemn and significant governing attorneys, including those communications which, if disclosed, would be detrimental to the client's case or subject the client to liability. See, e.g., N.Y. City 1986-7; N.Y. City 1986-8; N.Y. City 82-17 (the communications by a client to his attorney that he made misrepresentations to the opposing party prior to his lawyer's retention "are protected as 'secrets' under the Code since they are information gained in the professional relationship that would be embarrassing or harmful to the client if disclosed."); N.Y. City 82-39 ("A lawyer may not disclose information received during an initial consultation with a potential client who revealed that she has previously embezzled funds"); see also N.Y. State 525 (1980).
While the Code requires a lawyer to preserve the confidences of his client, the Code also places a special duty on government lawyers to act justly and to ensure that a full record is developed:
A government lawyer in a civil action or administrative proceeding has the responsibility to seek justice and to develop a full and fair record, and he should not use his position or the economic power of the government to harass parties or to bring about unjust settlement or results.
The Committee is of the opinion that EC 7-14 does not, however, require a government lawyer who also represents a private citizen in civil actions or administrative proceedings to disclose confidential communications to the adversary. In these circumstances, the government lawyer is not functioning primarily on behalf of the sovereign as does a prosecutor. Instead, the lawyer's obligations to the individual client are paramount, thus requiring the lawyer to preserve the confidences and secrets of the client.
In that light, a recent opinion issued by the Bar Association of Nassau County, although not directly on point, is instructive. There, the Association found that an attorney, who worked for a not-for-profit public interest organization, which paid the lawyer's fees and provided cost-free legal services to the public, was not required to disclose the client's confidences to either the organization or to his adversary. The Association stated:
[The attorney] owes a duty of confidentiality to the client, and such representation takes priority over the attorney's duties to the employer. The party who is rendered legal services, rather than the party who pays the legal fees, is the client . . . [In view of] the attorney's duty to maintain the confidentiality and secrets of his client, [he] should seek to quash [a] subpoena [served by his adversary].
Nassau Cty. Ops. 82-5, 82-6.
B. The Committee is of the opinion, however, that where the failure to disclose the materially adverse information would, directly or indirectly, and in light of the circumstances, mislead the Tribunal, then Lawyer X should seek his client's consent to disclose the information.
DR 7-102(A) states in part:
In his representation of a client, a lawyer shall not . . . (3) Conceal or knowingly fail to disclose that which he is required by law to reveal; (4) Knowingly use perjured testimony or false evidence; [or] (5) Knowingly make a false statement of law or fact.
These provisions reflect the principle that affirmative misrepresentations, or representations that are misleading in light of the circumstances, should not be made to the Tribunal. Lawyer X may not therefore withhold the information from the Tribunal if nondisclosure would be false or misleading under the circumstances and should therefore seek to obtain the consent of his client to disclosure. If counsel does not receive such consent, he should seek permission to withdraw. n1
n1 See N.Y. County 106 (1916) (lawyer should decline employment if he would otherwise have to conceal facts from the court about the existence of a prior divorce decree).
The Committee is of the opinion that the exception engrafted upon DR 7-102(B)(1) of the Code n2 does not relieve an attorney of the obligation, in a civil case, to be candid with the Tribunal if asked, directly or indirectly, about the subject matter of the confidence or secret, or if something said at the hearing or trial would be misleading if the information were not disclosed. Accordingly, if consent to disclose under these circumstances cannot be obtained, counsel, as noted above, should withdraw. n3
n2 DR 7-102(B)(1) states (emphasis supplied):
(B) A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret.
n3 The opinion in N.Y. State 454 (1976) is instructive. There, it was held that a lawyer who had withdrawn from the representation of his client did not have the ethical obligation to disclose that his client had concealed assets which should have been turned over to a trustee in a bankruptcy proceeding. While it is not clear from the opinion whether the lawyer was faced with making affirmative misrepresentations or misleading statements to the Tribunal, the attorney apparently withdrew when consent could not be obtained from his client to disclose his client's actions.
II. The Second Inquiry
The Committee's response concerning this aspect of the inquiry is premised on the assumption that it is fairly understood by the parties that Lawyer X was acting as counsel only for the agency. Where Lawyer X makes affirmative representations, or otherwise communicates to the complainant, that he is acting only on behalf of the agency, and not as counsel for the complainant, then the communications to Lawyer X are not privileged. See United States v. Demauro, 581 F.2d 50, 55 (2d Cir. 1978). In this situation, Lawyer X's ethical obligation, as a government lawyer, to develop a "full and fair record" and "to seek justice", should prevail. n4
n4 The government lawyer's ethical obligation to assist the Tribunal in the search for justice is well settled and requires the government lawyer, in an appropriate case, to take actions which are detrimental to his position or even to dismiss the action if it is deemed wholly to lack merit. See DR 7-103(B) (government lawyer in criminal case has duty to disclose to defendant exculpatory evidence); Jones v. Heckler, 583 F. Supp. 1250 (N.D. Ill. 1984) (court stated that it would have been professionally responsible for the government attorneys to submit "a confession of error" in the lawsuit considering the feeble support for the government's case); Amato v. Krob, slip. op. (Ohio Ct. App., 8th Dist., Sep. 8, 1983) (counsel for the City's safety director "should not decline to assist the Commission in complying with appellate procedures, even if his silence benefits his government client.").
However, the Committee is of the opinion that where it is clear, based upon the facts and circumstances, that the complainant views Lawyer X as his counsel for purposes of representation in the discrimination case, and Lawyer X acts accordingly, the materially adverse information was communicated by the complainant to Lawyer X within an attorney-client relationship and should not be disclosed, see In re Grand Jury Proceedings, Detroit, 434 F. Supp. 648, 650 (E.D. Mich. 1977), aff'd, 570 F.2d 562 (6th Cir. 1978).
The foregoing is subject to the limitation, discussed in Part I.B above in connection with the first inquiry, that misrepresentations or misleading statements need not be made to the Tribunal. In that circumstance, the Committee's opinion is that counsel for the agency should withdraw, see DR 2-110(C)(1)(b), and no new counsel employed by the agency should be substituted. We realize that such a conclusion would require the complainant to retain private counsel to prosecute his discrimination case, or in some instances, would require the complainant to appear pro se. This result is compelled, however, by the irresolvable conflict between the competing duties of Lawyer X -- a conflict created by the complainant's own conduct.
For the foregoing reasons, the Committee answers the first inquiry in the negative and the second inquiry in the affirmative, subject to the conditions described herein.
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
March 23, 1987
ACTION: Formal Opinion
The inquirer has been approached by a potential client in a matrimonial matter, who, after being advised of the inquirer's regular fees, decided to proceed pro se. He nevertheless asked the inquirer to be available for telephone consultation and advice, and to assist him in drafting pleadings and other documents for use in the litigation. These pleadings and documents would show him as appearing pro se. The inquirer plans to charge her regular hourly rate for her services, which presumably will result in a lower fee than if she were appearing as counsel of record. She inquires whether she may perform such legal service for a layman, ostensibly appearing pro se, and do so without disclosing the fact of her assistance to the court or to adverse counsel.
Non-disclosure by a pro se litigant that he is, in fact, receiving legal assistance, may, in certain circumstances, be a misrepresentation to the court and to adverse counsel where the assistance is active and substantial or includes the drafting of pleadings. A lawyer's involvement or assistance in such misrepresentation would violate DR 1-102(A)(4). Accordingly, we conclude that the inquirer cannot draft pleadings and render other services of the magnitude requested unless the client commits himself beforehand to disclose such assistance to both adverse counsel and the court. Less substantial services, but not including the drafting of pleadings, would not require disclosure.
We begin by noting that there is no ethical impediment to the client representing himself. If he does not wish, or cannot afford, full legal representation, he is free to proceed without it. EC 3-7. Nor is it improper for the lawyer to make available to the client such legal services as the client can comfortably afford. On the contrary, in doing so, the lawyer is taking action consistent with the duty of the legal profession to meet the needs of the public for legal services. EC 2-25.
The ethical problem arises from the fact that the client will be seen by opposing counsel and the court as proceeding pro se, that is, without the benefit of trained legal help, whereas the facts will be otherwise.
Pro se litigants are the beneficiaries of special treatment. They are "commonly required to comply with standards less stringent than those applied to expertly trained members of the legal profession." Bates v. Jean, 745 F.2d 1146, 1150 (7th Cir. 1984). The courts recognize an "obligation . . . to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal learning." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
A pro se litigant's pleadings are held "to less stringent standards than formal pleadings drafted by lawyers. . . ." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); see also Hughes v. Rowe, 449 U.S. 5, 9 (1980); Morello v. James, F.2d , No. 86-2106, slip op. at 1140 (2d Cir. Jan. 26, 1987); Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986). His complaint is not to be dismissed unless "frivolous on its face or wholly unsubstantial." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983). He is to be afforded the opportunity freely to amend. Holmes v. Goldin, 615 F.2d 83, 85 (2d Cir. 1980).
The special concern for the pro se litigant is not limited to the pleading stage. Both at trial and on appeal, he is to be spared "the harsh application of technical rules." Traguth v. Zuck, 710 F.2d at 95; Bates v. Jean, 745 F.2d at 1150.
These special rules have been formulated to compensate for the disadvantage under which the pro se litigant labors because unrepresented by someone trained in the law. Where the pro se litigant is himself a lawyer, and hence not handicapped by ignorance of the law, he receives no different treatment from any other litigant. His complaint cannot claim "the very liberal consideration afforded non-lawyer pro se parties." Guardino v. American Savings & Loan Association of Florida, 593 F. Supp. 691, 694 (E.D.N.Y. 1984).
Because of the special consideration given pro se litigants by the courts to compensate for their lack of legal representation, the failure of a party who is appearing pro se to reveal that he is in fact receiving advice and help from an attorney may be seriously misleading. He may be given deferential or preferential treatment to the disadvantage of his adversary. The court will have been burdened unnecessarily with the extra labor of making certain that his rights as a pro se litigant were fully protected. Klein v. Spear, Leeds & Kellogg, 309 F.Supp. 341, 342-43 (S.D.N.Y. 1970).
Nondisclosure, therefore, may amount to conduct involving dishonesty, fraud, deceit or misrepresentation. The lawyer assisting the pro se litigant will then be a participant in such misconduct in direct violation of DR 1-102(A)(4) which provides that "a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."
Whether the failure to disclose that a pro se litigant is receiving legal assistance amounts to a misrepresentation will depend upon all the facts, including the extent of the lawyer's participation. If a lawyer is rendering active and substantial legal assistance, that fact must be disclosed to opposing counsel and to the court. Although what constitutes "active and substantial legal assistance" will vary with the facts of the case, drafting any pleading falls into that category, except where no more is involved than assisting a litigant to fill out a previously prepared form devised particularly for use by pro se litigants. * Such assistance or the making available of manuals and pleading forms would not ordinarily be deemed "active and substantial legal assistance."
* In concluding that a lawyer's participation in the preparation of a pleading for a litigant otherwise acting pro se must be disclosed to avoid any misrepresentation, we depart from ABA Inf. Op. 1414 (1978), with which we otherwise agree. That opinion condemns "[e]xtensive undisclosed participation by a lawyer . . . that permits the litigant falsely to appear as being without substantial professional assistance" but indicates that disclosure is not required where the lawyer does no more than "prepare or assist in the preparation of a pleading for a litigant who is otherwise acting pro se."
Where disclosure is required, it must be made no later than the time when a pleading or other document prepared by the attorney is filed, or when the client otherwise utilizes the legal assistance the lawyer has been rendering. At the minimum, the court and adverse counsel must be informed that the litigant is, or will be, "receiving assistance from a lawyer." It would be appropriate to endorse the pleading, "Prepared by Counsel."
Since what must be disclosed is the fact that the litigant appearing pro se is receiving legal assistance, not the identity of the person rendering such assistance, it is not necessary in the first instance for the client to volunteer who is counseling him. Nor is there any need for the lawyer personally to make such disclosure. But the client is free to identify his lawyer should he so elect, or should the court or adverse counsel request such information, and the lawyer cannot instruct the client not to make such disclosure.
Unless the lawyer is able to secure the client's commitment beforehand to make the necessary disclosure, or should the client, having made the commitment, fail to carry it out, the lawyer cannot accept, or having accepted, must discontinue rendering any further legal assistance to the client. To do otherwise would put the lawyer at risk of violating not only DR 1-102(A), as previously discussed, but also DR 7-102(A)(7), which prohibits a lawyer from counseling or assisting a client "in conduct that the lawyer knows to be illegal or fraudulent." Withdrawal from employment is required where the lawyer "knows or it is obvious that continued employment will result in violation of a Disciplinary Rule." DR 2-110(B)(2).
Although the lawyer is not appearing of record, his obligations to his client are no different because of that fact. He must use his best efforts to ensure that the client's decision to proceed in the manner the client suggested is made only after the client has been informed of all relevant considerations, and after the client has been advised of the advantages and disadvantages of proceeding with, and without, counsel. EC 7-8; EC 3-7. The client must also be advised of, and his agreement secured to, the disclosure required of him and he must be informed that if he fails to disclose the legal assistance he is receiving in circumstances in which, in the lawyer's opinion, disclosure is necessary to avoid misrepresentation, the lawyer will have no alternative but to refuse to render any further assistance.
We do not suggest that every time a lawyer advises a litigant who is otherwise proceeding pro se, that such assistance must be revealed, but only that undisclosed participation by a lawyer in drafting pleadings or in rendering other active and substantial assistance to a litigant who therefore represents himself as being without professional assistance is improper and prohibited by DR 1-102(A)(4) and, therefore, cannot be undertaken.
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
February 23, 1987
ACTION: Formal Opinion
Lawyer X has been approached by Ms. Z, who wishes to rent space in Lawyer X's office suite. Ms. Z, who is not an attorney, intends to form a corporation for the purpose of offering arbitration and mediation services to the public. Ms. Z has informed Lawyer X that she wishes to advertise the fact that she conducts her mediation business at the law offices of Lawyer X's firm. Lawyer X is of the view that "the purpose of such advertisement would be to convey respectability and accountability to the corporation's prospective clients."
Lawyer X asks whether her law firm may allow Ms. Z to advertise, in any of several ways, the fact that Ms. Z conducts her mediation service at the offices of Lawyer X's firm. In the Committee's view, it would be improper for Lawyer X's firm to permit its name to be used by Ms. Z in her company's advertisements.
DR 2-101(A) prohibits the involvement of lawyers in "the preparation or dissemination of any public communication containing statements or claims that are false, deceptive, [or] misleading". The Committee believes that Ms. Z's proposal would cause Lawyer X to run afoul of this proscription against misleading advertising in several ways:
1. Ms. Z's proposed advertising is misleading because it is likely to convey to the public the impression that Lawyer X's law firm operates, endorses, or in some way stands behind Ms. Z's mediation service when Lawyer X has expressly disavowed any such relationship. On the other hand, if the implication of an endorsement or some sort of guarantee were true, the advertising would still contravene the lawyer's ethical obligation. In essence, Lawyer X's firm would be lending its name to a nonlawyer to enhance the nonlawyer's stature. In the Committee's opinion, such conduct is unethical. Cf. Texas Op. 426 (1985).
2. The Committee is also of the opinion that Ms. Z's proposed advertising would be deceptive in appearing to suggest to the public that Lawyer X's firm and Ms. Z's business are in some way affiliated. To the contrary, however, Lawyer X has acknowledged that Ms. Z's mediation business is not affiliated with Lawyer X's firm. Consequently, such an implication would be improper, and would be improper under any circumstances because an attorney may not ethically enter into a partnership with a layperson if that partnership may provide legal services. See EC 2-13; DR 3-103(A) (precluding attorney from forming a partnership with layman). See also N.Y. State 557 (1984); cf. Tennessee Op. 83-F-39 (1983); Michigan Op. CI-554 (1980). In the words of N.Y. City 80-25, "[e]ven if the services performed by [Ms. Z's firm] may be done by a lay person, the services [presumably provided by Ms. Z] involve activities, which when performed by a lawyer, may well involve the practice of law."
3. In addition to being misleading, if Lawyer X's firm permitted its name to be used in conjunction with Ms. Z's advertising, the result would be tantamount to encouraging the unauthorized practice of law by Ms. Z. The Committee believes that such an advertising ploy would imply that Ms. Z's mediation service would offer legal services, either directly or through Lawyer X's firm. Ms. Z is not authorized to provide legal services, see Judiciary Law § 478, so she may not hold herself out as offering legal services. Similarly, Lawyer X's firm may not "take any action which would suggest to the public that [Ms. Z's] firm is offering [Lawyer X's] legal services as part of its services." N.Y. City 79-7. See also N.Y. City 80-25. Accordingly, it would be improper for Lawyer X's firm to allow Ms. Z to use its name in her advertising because of the likelihood that it would permit Ms. Z to obtain clients who are seeking legal assistance. See N.Y. City 81-105 ("There is, of course, nothing inherently unethical about a lawyer sharing offices with a nonlawyer. The principal risk of such office-sharing arrangements is the danger that the public will be led to believe that the nonlawyer is an attorney engaged in legal practice. But if the lawyer takes care to avoid that impression, then office-sharing alone does not violate Canon 3.").
For the foregoing reasons, the Committee answers the inquiry in the negative.