Ethics Committee Advisory Opinion 1994-95/6
Attorney/Client Relationship, Independent Professional Judgment and Conflicts Avoidance: Association Staff Attorney Providing Legal Counsel to Association Members
June 14, 1995
Attorneys employed by an association to render advice on behalf of association members, like other attorneys, have a duty to render independent professional judgment under Rule 2.1 irrespective of any employment agreements; employment agreements should not conflict with Rule 2.1 and provisions of employment agreements recognizing the requirements of Rule 2.1 may aid an attorney in avoiding conflicts under Rule 1.7(b)
An attorney-client relationship is not created between an attorney retained by a pre-paid legal services plan and a member of that plan simply by virtue of plan membership; the attorney-client relationship does not arise in such situations until a member of the pre-paid legal services plan utilizes the services of the attorney.
While clients may limit the scope of representation under Rule 1.2, an attorney generally does not have a duty to advise clients of this right to tailor the scope of representation. A duty to explain or clarify the attorney’s role does arise under Rule 1.13(d) in situations where the client is an organization and the attorney is dealing with a constituent of that organization who is uncertain as to the attorney’s role.
In furtherance of public policy, a lawyer should be entitled to provide a second opinion to a client of another attorney without running afoul of Rule 4.2, at least where the second attorney does not utilize the occasion to attempt to undermine the relationship existing between the first attorney and the client.
Do the rules of professional conduct require that there be an affirmative agreement between the inquiring attorney and the association which recognizes the attorney’s duty to exercise independent professional judgment on behalf of association members and/or which assures the attorney will not be influenced by the association or its governing body in the exercise of that judgment?
What does it take to create an attorney/client relationship between the inquiring attorney and an association member and what rights or responsibilities do the inquiring attorney or association members have relative to limiting the scope of this relationship?
What obligations does the inquiring attorney have to association members to advise members about the attorney’s relationship or non-relationship with the insurance trusts of the association or otherwise to take affirmative steps to insure that members are not misled about the attorney’s role with respect to insurance coverage issues and that the attorney’s independent professional judgment is not compromised?