ABA Annual Meeting

Lawyer referral services need confidentiality privileges, ABA House says

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Stephen Steinberg

Stephen Steinberg discusses Resolution 106. Photo by Tony Avelar.

The ABA’s House of Delegates easily passed a resolution Monday calling for confidentiality in communications between lawyer referral services and their clients.

Multiple local bar groups and sections joined the Standing Committee on Lawyer Referral and Information Service in support of Resolution 106, which calls for disclosures to lawyer referral services to be treated as confidential lawyer-client communications. This is a problem, sponsors said, because only California has expressly created such a legal privilege, and lawyer referral services don’t necessarily use lawyers for front-line screening.

C. Elisia Frazier (PDF), an at-large delegate and a solo from Pooler, Georgia, turned the floor over to Steve Steinberg, past president of the Contra Costa County Bar Association in California. Steinberg said anything that hampers open communication with clients hurts lawyer referral services—and that some LRSes have been subpoenaed, which could chill those communications.

David Keyko, who chairs the Legal Referral Service Committee of the New York City Bar Association, said his bar has received such subpoenas, though it’s been able to avoid them. He was aware of at least one other group that did have to turn over its records. He added that his bar association is asking the New York legislature for a state law that would privilege the communications.

“The New York City Bar Association, the New York State Bar Association and the Brooklyn Bar Association support this resolution because we strongly believe the support of the ABA in passing this resolution will be of major assistance to us and lawyers in other states in passing legislation,” or getting favorable court decisions or court rules, said Keyko, a partner at Pillsbury Winthrop Shaw Pittman.

House of Delegates Chair Patricia Lee Refo said she held an “aircraft carrier load” of salmon slips in favor of the resolution but none opposing. It passed easily.

A related resolution, 10A, was divided Monday afternoon after opposition to its third paragraph arose. Delegate Michael Reed of the Pennsylvania delegation, special counsel to Pepper Hamilton in Philadelphia, said there were questions raised about whether the third paragraph is consistent with the ABA’s governing documents. That third paragraph resolves that the ABA will consider and thoroughly discuss with members who represent local bar groups before approving any program or legal service initiative that results in hiring an attorney for a fee.

Delegates approved dividing the resolution and approved the first two paragraphs, which address the proliferation of for-profit online lawyer referral services by reaffirming support for services run by local bar associations and encouraging the bar associations’ services to conform to the ABA’s Model Supreme Court Rules. The third paragraph, standing alone, was postponed indefinitely by a majority vote, though some nos were audible.

Follow along with our full coverage of the 2016 ABA Annual Meeting.

Updated at 5:50 p.m. after the House of Delegates took new action on Resolution 10A.

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