Before you graduate from law school, you will be required to complete a course in professional responsibility in which you will learn the professional and ethical obligations of an attorney. Without oversimplifying these complex rules, it is important that you be aware of three issues that may arise in the context of pro bono (as well as paid) legal work you engage in during law school.
Unauthorized Practice of Law
As a law student, you will be viewed by non-lawyers as possessing legal knowledge and skills and are likely to receive requests for legal advice or assistance from family, friends, and even strangers. It is unethical, but more importantly illegal, to offer legal advice or assistance, representation, document drafting, or in any way appear to be giving a legal opinion to a person or entity unless you are licensed to practice in that jurisdiction. If someone were to rely on your advice, you could cause grievous harm. A disclaimer that you are “just a law student” is not sufficient. Not only could you be subject to civil or criminal penalties, but you could jeopardize your admission to the Bar.
In the context of a pro bono placement, it is essential that you do not give anything that could be construed as legal advice to a client or prospective client. That does not mean that you cannot convey legal information that an attorney supervisor tells you to give to a client. It does not mean that you could not provide information in a “know your rights” workshop at a community center or high school. It does mean that if you are asked a question about a specific legal issue you should never try to apply the law to a particular set of facts. Under all of these scenarios, you should seek guidance from your attorney supervisor if you are at all unclear where the line should be drawn.
When volunteering or working in a legal office, you are likely to learn information about the clients and potential clients of the attorney, firm, or organization for which you are working. Almost without exception, this information is considered “confidential” which means it is protected by the ethical obligation of confidentiality regardless of the source of the information and should not be discussed with others outside the office.
Although you are not yet a lawyer, you have an obligation to the attorneys who are supervising you and to the organization’s clients to keep this information confidential. This is true even after you have left the firm or organization and regardless of whether the matter has been resolved.
On a related note, you may feel that something you have prepared during your pro bono placement would be a good a writing sample for a future job search. Be aware that you must first get permission from your supervising attorney and then be sure to “redact” (black out) any confidential information that could identify the client(s).
Conflicts of Interest
It is also important for you to be aware that the confidential knowledge gained from working in a legal office can place you in a situation that would create a conflict of interest for you in subsequent volunteer positions or employment.
Under the D.C. Rules of Professional Conduct, a lawyer cannot work for a client and the adverse party on the same matter. A lawyer is also prohibited from working for the adversary of a former client if the lawyer possesses confidential information about the former client that could adversely affect the client. These situations illustrate a potential conflict of interest.
Although you are not yet a lawyer, the conflict of interest rules apply to you both as a future attorney and as a non-lawyer volunteer working with an attorney. So, for example, if at one point you worked for a firm that represented a landlord, then, while volunteering for a legal aid office, became involved in a landlord/tenant dispute against that same landlord, it would be a conflict of interest for you to work on the case against that landlord. You would have an obligation to inform the legal aid office of your conflict.
To avoid potential problems, we recommend that you keep track of the clients and matters on which you work so that you do not place yourself or a subsequent employer in a position that could result in a conflict of interest. You should inform your supervising attorney if you believe there is any possibility of a conflict of interest in any work you are doing.
Furthermore, it is a good practice to keep track of the names and addresses of the employers for whom you work or volunteer during law school as well as the names of your supervisor(s), their phone numbers and e-mail addresses. When it comes time to apply for admission to a state bar, you are likely to be asked this information and it is important that it be as accurate as possible. While the school maintains records of where you have reported to us that you have volunteered, we do not keep track of your supervisors. Furthermore, you should not rely on our records for this important information.
It is important to remember that you should not try to determine for yourself how to handle one of these issues should it arise; you must inform your supervising attorney and let him or her make the determination of how to proceed. Under the rules of professional responsibility, your supervising attorney is responsible for overseeing the work done by non-lawyers to be sure they are complying with the rules. Your violation of these rules could subject the attorney to disciplinary actions and could cause the client substantial harm. Furthermore, it could jeopardize your admission to the bar.
Should anything arise during your pro bono placement that you have questions about, whether touching on the issues raised in this memo or anything of a professional or ethical nature that you have concerns about, feel free to contact the OPICS Pro Bono Coordinator. Also available for consultation is the Law Center’s Ethics Counsel, Prof. Michael Frisch, who served as senior assistant bar counsel to the District of Columbia Court of Appeals handling attorney disciplinary matters. Lastly, you should be aware that there are ethics help lines in all of the DC metropolitan area jurisdictions that are staffed by attorneys who are available to give confidential advice on ethical issues presented to them.