Opinion gives guidance for legal services lawyers on advising with nonlawyer professionals
There are too few publicly funded attorneys, combined with pro bono lawyers, to help everyone with a civil legal problem who cannot afford a lawyer. Often, the only option is self-help because states’ provisions on the unauthorized practice of law ordinarily do not let nonlawyers assist.
But sometimes nonlawyer professionals can step in. For example, applying for Medicaid occasionally raises tricky legal questions, but you do not have to be a lawyer to help someone with a Medicaid application.
Suppose a caseworker who has been trained regarding the Medicaid program encounters a problem while assisting a Medicaid applicant. May the caseworker, acting on behalf of the applicant, call a knowledgeable legal services lawyer, explain the difficulty and the relevant facts, and benefit from the attorney’s legal judgment about how to handle the situation?
This is a common scenario, says Randye Retkin, director of LegalHealth, a medical-legal partnership under the auspices of the New York Legal Assistance Group.
“We often interface with social workers and other health care professionals who seek our guidance about patients we have not met,” she says. “We can leverage our resources by giving advice to health care professionals who help patients with law-related problems.”
A recent opinion from the New York City Bar Association’s Professional Ethics Committee, Formal Opinion 2017-4, illustrates how legal services lawyers can help clients navigate the legal complexities of Medicaid while leaving it to the clients’ caseworkers to provide other necessary help.
The opinion is unusual and noteworthy, says Philip Genty, a professor at Columbia Law School, because “relatively few ethics opinions are directed specifically at lawyers who work in legal services programs serving low-income communities.” Consequently, legal services lawyers nationwide might find the opinion useful if their own state rules are written or may be interpreted slightly differently.
The opinion acknowledges that lawyers collaborate in various ways with nonlawyers—for example, attorneys sometimes employ other professionals (including those who work in social services) or are employed or retained by them. The opinion focuses only on the particular situation in which the legal services lawyer agrees to briefly represent the Medicaid applicant, with a trained and experienced caseworker serving as the applicant’s agent.
This differs from the common situation in which a caseworker gets a quick answer to an abstract legal question, without providing information about the applicant and without expecting the lawyer to exercise legal judgment in response to the applicant’s specific situation.
If providing brief legal advice to the Medicaid applicant through their caseworker, the opinion cautions, the lawyer should clarify that the applicant is their client and make certain that the caseworker is authorized to engage the lawyer on the applicant’s behalf. The opinion shows that, with care, the legal services lawyer ordinarily can provide legal advice in this fashion.
For starters, the opinion says the lawyer doesn’t have to conduct a time-consuming check for conflicts of interest, as lawyers ordinarily do before they accept a new representation.
The New York state rule based on Rule 6.5 relieves lawyers of conflict checks for when they provide short-term limited legal services in a “program sponsored by a court, government agency, bar association” or other nonprofit legal services organization.
“By relaxing the usual conflict rules, Rule 6.5 reduces obstacles to participation in programs that provide short-term limited legal services, thereby increasing the availability of such services to people in need,” according to the opinion.
It concludes that a legal services office’s informal practice of answering caseworkers’ calls about Medicaid law would qualify as the kind of program that the rule covers.
INFORMED CONSENT AND COMPETENCE
Next, the opinion says that under New York state’s counterpart to Rule 1.2(c), the legal services lawyer may limit the scope of the representation to providing quick advice on the telephone if doing so is “reasonable under the circumstances.”
Given the caseworker’s training and experience in completing Medicaid applications, and assuming there is “no apparent reason to believe that [the caseworker] will misjudge the extent to which legal advice is needed,” the opinion concludes that brief advice will ordinarily be reasonable in that it “advances the client’s objective of a successful Medicaid application.” This is true even though the applicant might benefit more “from the lawyer reviewing and advising on the entire application.”
The opinion adds that Rule 1.2(c) requires an attorney providinglimited legal services of this kind to first obtain the client’s informed consent. The legal services lawyer must make sure that the Medicaid applicant understands that the lawyer is giving advice regarding the caseworker’s specific questions, not accepting the ongoing representation or overseeing the caseworker.
While the lawyer may speak with the Medicaid applicant directly, it also is permissible for the caseworker to communicate the lawyer’s explanation to the applicant and then tell the lawyer whether the applicant understands and has consented. If so, the lawyer may proceed to give brief assistance, with the caseworker as the go-between.
Finally, the opinion raises the basic duty of competence. A risk arises that in communicating through the caseworker, the lawyer may not obtain the necessary facts or their advice will be implemented incorrectly. It is ordinarily all right to communicate through the caseworker, the opinion says. But sometimes doing so is unreasonable or attorneys must do so carefully, such as when it comes to language barriers.
The opinion’s usefulness is not limited to Medicaid applications. Nonlawyer professionals are authorized by law to provide assistance with other legal problems.
Indeed, social services professionals currently assist low-income individuals with their legal problems in large numbers. But they do so mostly under the radar, according to a 2014 law review article by David Udell, executive director of the National Center for Access to Justice, and Richard Zorza, founder of the Self-Represented Litigation Network.
Udell says the New York City bar’s new opinion “is welcome, as it underlines the principle that lawyers should, at least, not be discouraged from offering guidance to nonlawyers when, as occurs routinely, nonlawyers step into the breach in this way.”
At the same time, “the opinion reminds legal services lawyers that even in their informal interactions with service providers and community members, lawyers must be mindful of their ethical obligations,” Genty of Columbia says. “This protects both the lawyers and their clients.”
CorrectionPrint and initial online versions of “Balancing Act,” November, should have stated that the opinion from the New York City Bar Association’s Professional Ethics Committee interprets New York state court rules that are based on elements of the ABA Model Rules of Professional Conduct. Due to an editing error, the article identified “the New York City bar’s rule.”
The Journal regrets the errors.
Bruce Green directs the Louis Stein Center for Law and Ethics at Fordham University School of Law. He chairs the ABA’s Criminal Justice Standards Committee and the New York City Bar Association’s Professional Ethics Committee. Green is also a co-author of the casebook
Bruce Green directs the Louis Stein Center for Law and Ethics at Fordham University School of Law. He chairs the ABA’s Criminal Justice Standards Committee and the New York City Bar Association’s Professional Ethics Committee. Green is also a co-author of the casebookProfessional Responsibility: A Contemporary Approach.
This article appeared in the November 2017 issue of the ABA Journal with the headline “Balancing Act: Opinion gives guidance for legal services lawyers on how to dispense advice when working with nonlawyer professionals.”