MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2016-12

Whether a Legal Clinic can disclaim the attorney client relationship and require clients to waive confidentiality

Your inquiry has been considered by the Committee on Ethics of the Maryland State Bar Association.

You ask the Committee whether a legal clinic run by a University on behalf of its students may disclaim the attorney client relationship when rendering legal advice to students and whether the clinic may seek a waiver of “attorney client” privilege at the outset of the relationship with both the execution of the waiver and disclaimer required in order to continue the relationship. The short answer to that question is that the clinic cannot require a person to disclaim the attorney client relationship, but may limit the scope of the representation to providing legal advice under Rule 1.2; and, after the attorney consults with the prospective client, the attorney may seek a waiver of the confidentiality requirements of Rule 1.6 provided that the attorney has fully informed the prospective client as to the consequences of the requested waiver.  As described to the Committee, the “attorney-client privilege” which the clinic seeks clients to waive is more likely the confidentiality requirements of Rule 1.6 and these requirements can also be waived by a fully informed and knowledgeable client.

The University collects fees from students who, through their student government, allocate how the fees are to be spent.  For many years, some of the fees have been allocated to run a legal clinic designed to provide students with legal advice.  The clinic is operated by an attorney/attorneys licensed to practice law with the help of staff and student volunteers.  The student volunteers staff the phones for the clinic and handle intake when students seek guidance.  The clinic provides the student volunteers with a manual to help guide how the intake process should transpire.  In an abbreviated form, the process flows from a contact by a student with the clinic where the student volunteer asks for certain information including the nature of the problem.  If the issue involves the University charging the student with a of violation of the University’s Rules, a separate group of students who do not work for the clinic provide help with a defense and the student volunteer refers the student to the student defender. But, if the issue is both a legal issue and a University charge, both the intake worker and the student defender will interview the student.  If the student’s case or matter involves another student, the intake is halted immediately, and the attorney is consulted about a possible conflict as the clinic does not advise students about matters involving another student.

After completing the fact gathering but before meeting with the attorney, the student is required to sign a form that purportedly waives the attorney client privilege and also provides that the clinic does not represent the student.1 With the facts gathered and the form signed, the student volunteer briefs the clinic attorney on the matter.  The briefing may occur in person or via telephone.  Once the attorney has been briefed and made a determination as to whether the clinic can provide advice and the nature of the advice, the student is invited to speak with the attorney with the student volunteer present.  Once the attorney completes the interview, the student volunteer escorts the student out and offers follow-up contact information and monitors the file for three weeks and if nothing has occurred notifies the student via email that the file is being closed.

The operations Manual for the program which is provided to each student volunteer is comprehensive and for purposes of this Opinion confirms the abbreviated procedure described previously and provides:

With the assistance of the student interns and an attorney, a student coming into the office can expect to receive resources to aid them in a variety of legal matters.  The office, however, cannot litigate (appear personally or file papers) for students in a court of law, or act as a legal representative of a student.  While every attempt is made to keep information confidential, we do not guarantee such confidentiality to students in all situations.

The clinic provides the Manual to student volunteers and presumably it is available to any student interested in it, but the procedure does not indicate that the clinic makes the Manual available to students seeking advice.  The clinic has operated without significant problems for 40 years and the Committee does not seek to disrupt its successful operations, nor to interpret the Rules of Professional Conduct without giving full weight and understanding to the format of the clinic’s practices. Nevertheless, while recognizing that the Rules of Professional Conduct could be interpreted to consider the differences between the clinic’s operations and those of a law office or other non-traditional form of legal practice, the Committee believes that concepts within the Rules cannot yield to the benefits the clinic provides.   

Dealing first with the waiver of the attorney-client privilege, it seems clear from the Manual and other information provided by the clinic that its use of the term “attorney-client privilege” acts as a shorthand for the broader requirements of confidentiality required by Rule 1.6.  In either case, the waiver seems flawed.  First, its timing comes after confidential information has been sought and given.  Second, nothing in the Manual or the form sufficiently describe the effects on the student if confidentiality is lost. 

The clinic’s Manual and its forms do not demonstrate that the clinic explains the nature of the confidential relationship that is to be lost, its value and its consequences.  Similarly, the clinic’s Manual and forms do not substantiate that the student signing the forms does so knowingly and with a full understanding of what it means to do so.  More importantly, while Rule 1.6 provides that confidentiality may be waived, it requires the waiver be based on “informed consent.”

(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, . . .

And the term “informed consent” is defined in the Rules:

(f) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.

The form must be signed at a point in the relationship where it is meaningful and “after the lawyer has communicated adequate information and explanation about the material risks and reasonably available alternatives to the” requested waiver of confidentiality and attorney-client privilege.  If the student refuses to sign the form after consultation with the lawyer then, under the Rules of Professional Conduct, the student is a prospective client entitled to the expectation of confidentiality in the information provided. MRPC 1.18.  If the clinic intends to seek a waiver of confidentiality, it must insure that the waiver is intelligently made after consultation with the lawyer including a full disclosure of the consequences of the waiver.  An Internet search seeking information about similar programs indicates that confidentiality forms a part of other clinics’ practices, so the Committee cannot conclude that its opinion unnecessarily jeopardizes the clinic’s operations.

The form that must be signed by the student client disclaiming “legal representation,” can be taken in two ways: the form seeks to disclaim an attorney client relationship or to limit the relationship to one of providing legal advice only without any duty to act as a representative of the student client vis a vis any third party or forum.  The language could be revised to make clear that the relationship is one of legal advice and counsel only. The Committee has no doubt that the clinic’s attorney offers legal advice to students who ultimately make it to the attorney’s office.  Providing legal advice to a person in the context described by the clinic amounts to the practice of law, thereby creating the relationship of attorney-client.  We know of no basis for disclaiming that the relationship exists in the context of this fact pattern.

Cases discussing the attorney client relationship recognize that the relationship may be based on an implied or an express contract between the parties.    See Fraidin v. Weitzman, 93 Md. App. 168, 193, 611 A.2d 1046, 1059 (1992) (“Existence of an attorney-client relationship may be implied from the conduct of the parties; it does not depend on the execution of a formal contract, unless the parties so specify. Crest Investment Trust, Inc. v. Comstock, 23 Md.App. 280, 297, 327 A.2d 891 (1974), cert. denied, 274 Md. 726 (1975).”).  Whether an attorney client relationship supports a claim of privilege does not resolve whether Rule 1.6 applies, as the Rule extends beyond the limits of privilege.2  Where, as the facts described in this inquiry indicate, a student seeks legal advice from the clinic and receives advice from an attorney provided by the clinic to give legal advice to students, the Committee concludes that a reasonable student would believe that an attorney-client relationship existed between the student and the attorney.  Indeed, if not an attorney-client relationship, how might the relationship be described?

Although the Committee concludes that an attorney-client relationship exists that cannot be disclaimed, Rule 1.2(c) allows an attorney to limit the scope of representation if doing so is reasonable and the client gives informed consent.

(c) A lawyer may limit the scope of the representation in accordance with applicable Maryland Rules if (1) the limitation is reasonable under the circumstances, (2) the client gives informed consent, and (3) the scope and limitations of any representation, beyond an initial consultation or brief advice provided without a fee, are clearly set forth in a writing, including any duty on the part of the lawyer under Rule 1-324 to forward notices to the client.

Again, as with the waiver of confidentiality, the student must give informed consent.  Neither the Manual nor the form requiring the disclaimer provide sufficient information for the Committee to conclude that a student signing the form has given informed consent.  However, based on the function of the clinic and its funding source, the Committee can conclude that it may – with the student’s informed consent – limit its representation to offering advice to students and can make clear that it will not represent students in court, in administrative proceedings, before University tribunals or by writing letters, making phone calls or other forms of communication on their behalf, without violating Rule 1.2(c).  If the clinic is to have any involvement beyond the initial consultation, the scope and limitation of the representation must be in writing and with the student’s informed consent.

Finally, the Committee raised the question of whether recent increases in student harassment and assault cases being reported created a Title IX problem for the clinic requiring it to report to the administration where required under that law.  In response, the clinic offered its notice to students about its requirement to report certain incidents despite any expectations of confidentiality.  While the Committee does not opine on specific language to offer its approval, the clinic should understand that if the disclosure form is not clear to a reasonable student, the clinic will have failed to meet its requirements to its student clients regarding confidentiality should it report an incident the student would not have readily understood fell within the Title IX disclosure notice.

The Committee hopes it has addressed your inquiry and thanks you for your interest.  Our opinions are available online at www.msba.org.

 

1 Specifically the Form provides: “I understand that [clinic]’s services do not constitute legal representation.  Further, I understand that there is no attorney-client privilege attached to my disclosures to [clinic].”

2 See: Comment 3, Rule 1.6 Rules of Professional Conduct. “[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Maryland Lawyers’ Rules of Professional Conduct or other law. See also Scope.”