ETHICS OPINION 627-1974 CONFLICT OF INTEREST

NUMBER 627

QUESTION.

 

Under the Mental Hygiene Law of New York State, each state hospital has a Board of Visitors the duties of which include investigation of charges against the director of the institution and all charges of patient abuse or mistreatment against any employee of the institution. In one of the counties of the State there is a single director in charge of all institutionalized mentally retarded patients in the county and a Board of Visitors which oversees the institutions they occupy. The director has asked a lawyer to act as special legal consultant to represent the mentally retarded patients under his jurisdiction regarding their rights and safety and to be paid for his services on a case by case basis out of funds supplied by the State Department of Mental Hygiene. Such representation would include charges against the director and employees of the institutions for patient abuse and mistreatment as well as claims regarding civil rights of patients. The question is complicated by the fact that the unpaid chairman of the Visiting Board is the lawyer’s wife. The lawyer has asked whether it would be proper for him to accept the employment.

 

ANSWER.

 

DR 5-107(A)(1) forbids a lawyer to accept compensation for his services from any person other than his client without the client’s consent after full disclosure. Mentally retarded patients are frequently not qualified to understand a full disclosure or to give a valid consent However, this should not preclude their receiving the benefit of free legal service supplied at the expense of the institution. Accordingly, in cases where the patient is not capable of giving the required consent and there is no legally appointed guardian, the consent of the Visiting Board or its delegate should be sufficient.

 

DR 5-107(B) forbids a lawyer whose compensation is paid by someone other than the client to permit the person paying him to direct or regulate his professional judgment’’ in rendering his legal services A lawyer’s primary loyalty is to his client and his relationship to the client must be a personal one. The fact that his compensation is being paid by others must not be permitted to influence his judgment in carrying out his professional responsibilities to the client

 

It would be proper for the lawyer to accept the proposed employment provided he is careful to comply with the foregoing and also with the admonition of EG 5-23 that a “lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom,” and the admonition of EC 5-24 that “a lawyer must decline to accept direction of his professional judgment from any layman”

 

The admonitions in this case are particularly important because the lawyer is being retained by the director who is one of the persons against whom he may have to assert claims or charges.

 

The fact that the lawyer’s wife is chairman of the Visiting Board would not preclude his being retained by the director but if action on his appointment is taken by the Board it would be desirable to have his wife abstain from voting.

 

June 13, 1974.