Ethics Opinion

Opinion No. 74-5

May 1974

Summary: Lawyers affiliated with a federally funded nonprofit legal assistance project may interview prison inmates scheduled for parole revocation hearings, advise such inmates of their rights, and then undertake to represent those indigent inmates who desire legal representation at the hearings.

Facts: X, a federally funded legal assistance project, receives a monthly list of inmates at a state prison who have been scheduled for parole revocation hearings. Attorneys on the staff of X interview each inmate to determine whether he desires the legal services of X at his parole revocation hearing. If the inmate does desire representation, X prepares the case and appears for the inmate at the hearing. X has inquired as to whether the foregoing practice involves proscribed solicitation.

Discussion: The Code of Professional Responsibility (SJC Rule 3:22) indicates in Disciplinary Rule DR 2-103 that: "A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer." However, significant public policy considerations, with respect to providing legal services to indigent persons, require a relaxation of the general proscription of solicitation as applied to certain legal service organizations. This need is recognized in DR 2-104(A)(2) and (3):
A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that ... . (2) A lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by any of the offices or organizations enumerated in DR 2-103(D)(1) through (5), to the extent and under the conditions prescribed therein. (3) A lawyer who is furnished or paid by any of the offices or organizations enumerated in DR 2-103(D)(1), (2), or (5) may represent a member or beneficiary thereof, to the extent and under the conditions provided therein.
Among the legal organizations enumerated in DR 2-103(D)(1) are legal aid offices and public defender offices operated or sponsored by a bona fide nonprofit community organization. We assume X is such an organization.
It appears that the case as stated would not violate the Code of Professional Responsibility, at least if the following conditions were present: (a) but for the individual counseling by the attorneys of X, there exists a substantial risk that certain inmates would be unaware of the availability of counsel or would not be represented because of ignorance of their rights; and (b) the inmates represented by X were in fact indigent. As a practical matter, if the attorneys of X did not interview all inmates, many of them might receive no advice or inadequate advice as to their rights.

Permission to publish granted by the Board of Delegates, 1974. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.