May a lawyer who furnishes legal advice to a member of a qualified legal service organization pursuant to a plan which provides that the member is not changed for such advice, subsequently accept direct employment from the member at the member’s expense, in the same or unrelated matters’ If he may, would it be proper for the lawyer to advise the member that he should retain counsel, that the member is not required to retain him and then accept the employment if offered?
A lawyer whose initial contact with a client was established through their participation in a. legal service program of a qualified legal service organization may, if the client so desires, accept employment direct from the client, and charge him for legal services in the same or in unrelated matters. Although DR 2-103(D) prohibits a lawyer from knowingly assisting a person or organization that furnishes or pays for legal services to others to promote the use of his services, it provides certain exceptions to its proscription. One of the exceptions is that a lawyer may cooperate with “any bona fide organization that recommends, furnish or pays for legal services to its members or beneficiaries” provided conditions set forth in DR 2-103(D) (1) (a)-(g) inclusive are satisfied. See Guidelines contained in N.Y, County 650 (1976) and in N.Y. State 416 (1975); also Code Definition 8.
Among the requirements are that the organization shall hot have been initiated or promoted for the primary purpose of benefiting the lawyer, and that it is not operated for the purpose of procuring legal work for the lawyer as a private practitioner outside of the legal service program of the organization DR 2-103(D) (4) (b) and (c).
Notwithstanding that a client was introduced to the lawyer as a result of their participation in a qualified legal assistance organization plan, the relationship of lawyer and client, once established, is the same as in the case of any other retainer. Thus, “the lawyer-remains free to exercise his independent professional judgment on behalf of his client” DR 2-103(C) (2) (b) Again, “The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter”, DR 2-103(D) (4)(d), The client may, if he so desires, select counsel other than that furnished, selected, or approved by the organization, DR 2-103(D) (4)(e).
A restriction imposed upon the right of a client to retain private; counsel of his own choice merely because his relationship with such counsel originated in their participation in a group legal service program would, apart from the legal problems in would present (over which this Committee lacks jurisdiction) frustrate the very purpose of the 1975 amendments to the Code, which sought to provide increased availability of competent legal counsel to those who were in need of such assistance, It would be contrary to this objective if a layman, who has through a group legal service program, found a lawyer whom he trusts, were precluded from retaining that lawyer in the same or other matters under a private arrangement, if the lawyer does not solicit the private employment, and does not use the legal assistance organization as a feeder of legal work outside the legal services program of the organization, such retainer would not be improper. See ABA Inf 1360 (1976).
It is true that DR 2-104 (A) provides that “A lawyer who has given unsolicited advice to a layman that he should obtain counsel . . . . shall not accept employment resulting from that advice.” However, the advice is not “unsolicited” where the client was reffered to the lawyer by a qualified legal assistance organization and the rule expressly exempts its applicability in such case, DR 2-104 (A)(3). we do not read the language of DR 2-104(A)(3) permitting representation “to the extent and under the conditions prescribed therein” so narrowly as to preclude representation in the same or unrelated matter where there is no solicitation and a lawyer-client relationship has already been established.
It would not be proper, however, for the lawyer to recommend that counsel be retained and imply that he would be available However worded, that would amount, directly or indirectly, to soliciation.
June 10, 1977