PRACTICAL ETHICS:
Advocating for Children in Foster Care
Ronald M. Hager, Staff Attorney
Diana M. Straube, Staff Attorney
National Assistive Technology Advocacy Project
Neighborhood Legal Services, Inc.
295 Main Street, Room 495
Buffalo, New York 14203
716-847-0650, 0227 (fax), 1322 (tdd)
rhager@nls.org;
dstraube@nls.org
www.nls.org
April, 2006
I. Identifying the Client: Is the child the client or is the client the entity who contacts the attorney and/or pays the fee?
A. Child support proceedings
1. Even though support is paid on behalf of the child, the support petition is brought in parent’s name, support is paid to parent, arrears accrue to the parent, etc.
2. Parent is party in interest and the client is the parent. Child may have right to independent counsel and/or court may have authority to appoint law guardian or guardian ad litem for child. (For example, see NY Family Court Act §241)
B. Medicaid prior approval
1. Application for services or equipment is in name of child.
2. In fair hearing, child is the named appellant.
3. Is the child the client?
a. Whose name is on office file?
b. Who is signing retainer agreement and how is it signed?
C. Special Education
1. Procedures established by State or local educational agencies receiving federal assistance must ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies. 20 U.S.C. § 1415(a)
2. Procedures must include an opportunity for the parents of a child with a disability to examine their child’s records, participate in meetings regarding identification, evaluation, and educational placement of the child, and obtain an independent educational evaluation. 20 U.S.C. § 1415(b)
3. The term ‘parent’ means—(A) a natural, adoptive, or foster parent of a child (unless a foster parent is prohibited by State law from serving as a parent); (B) a guardian (but not the State if the child is a ward of the State); (C) an individual acting in the place of a natural or adoptive parent (including a grandparent, stepparent, or other relative) with whom the child lives, or an individual who is legally responsible for the child’s welfare; or (D) except as used in sections 615(b)(2) and 639(a)(5), an individual assigned under either of those sections to be a surrogate parent. 20 U.S.C. § 1401 (23)
D. Foster care maintenance payments
1. States that get federal reimbursement for foster care maintenance payments must have a state plan (42 U.S.C. §671(a)(1), 45 C.F.R. §233.110).
2. State plan must provide for an opportunity for a fair hearing to any individual whose claim for benefits pursuant to that part is denied or not acted upon with reasonable promptness (42 U.S.C. §671(a)(12)
3. Miller -vs- Youakim, 440 U.S. 125, 99 S.Ct. 957, involved a §1983 suit by foster parents who met foster parent licensing requirements but were denied foster care maintenance payments because they were related to the children. Illinois claimed that relative placements did not meet the federal definition of foster care and would not pay foster care maintenance payments to the plaintiffs. The Supreme Court reviewed the federal definition of foster care and determined that the state could not deny benefits to relatives.
4. Timmy S. -vs- Stumbo, 917 F.2d 312 (6th Cir, 1990) upheld the right of foster parents to administrative fair hearings regarding denial of tangible benefits. The court also held that foster parents have a private right of action to enforce the Act under §1983.
5. New York State fair hearing Maryann G. was a successful challenge to the refusal on the part of the foster care agency to pay for special items for 2 foster children with disabilities. Those items included renovations to the bathroom, swing and flotation devices, and a lift and installation costs for a van. The agency unsuccessfully argued that the exceptional foster care maintenance rate included payment for certain of these items, that capital improvements were not covered and that other items were available under Medicaid.
II. Who Can Appear for The Child?
A. Federal Rules of Civil Procedure, Rule 17(c)
1. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.
B. Each state will have its own statute regarding whom may appear on behalf of the child.
1. New York CPLR §1201
a. Unless the court appoints a guardian ad litem, an infant shall appear by the guardian of his property, or if there is no such guardian, by a parent having legal custody, or if there is no such parent, by another person or agency having legal custody, or if the infant is married, by an adult spouse residing with the infant...
b. An infant shall appear by his guardian ad litem if...the court so directs because of a conflict of interest or for other cause, or if he is an adult incapable of adequately prosecuting or defending his rights.
c. According to the commentaries to this section, this section specifies a hierarchic order. For example, Matter of Meyers, 139 Misc.2d 265, 528 N.Y.S.2d 778 (Sup.Ct.Queens Co. 1988) held that an infant cannot appear by a parent when the child’s grandmother had been granted legal guardianship by Family Court.
d. Bagot -vs- Ashcroft, 398 F.3d 252 (3rd Cir. 2004) reviewed the concept of “legal custody” under New York law. The court noted that although the term is not defined in statute or case law, it seems to suggest that a parent in physical custody of the child may not need a decree to have legal custody. See also Stahl -vs Rhee, 220 A.D.2d 39, 643 N.Y.S.2d 148 (2nd Dept. 1996)
e. In cases where a conflict of interest between the infant and a listed representative or “other cause” exists, the court may appoint a guardian ad litem for the child. See, In re Riddel, 78 Misc.2d 150, 355 N.Y.S.2d 36 (Sup.Ct.N.Y.Co. 1973), in which the court noted a potential conflict of interest between parent and the infant.
2. Maryland Rule 2-202 (b): Suits by individuals under disability. An individual under disability to sue may sue by a guardian or other like fiduciary or, if none, by next friend, subject to any order of court for the protection of the individual under disability. When a minor is in the sole custody of one of its parents, that parent has the exclusive right to sue on behalf of the minor for a period of one year following the accrual of the cause of action, and if the custodial parent fails to institute suit within the one year period, any person interested in the minor shall have the right to institute suit on behalf of the minor as next friend upon first mailing notice to the last known address of the custodial parent.
3. Arkansas Rules of Civil Procedure (ARCP), Rule 17(b) Infants or Incompetent Persons: Whenever an infant or incompetent person has a guardian, the guardian must sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed guardian, he may sue by his next friend or by a guardian ad litem...
4. The Connecticut state court held in Orsi -vs- Senatore, 230 Conn. 459, 645 A.2d 986 (1994) that foster parents had standing to bring an action on behalf of his/her foster child as next friend even though that child had been represented by a court-appointed guardian. See also Cottrell v. Connecticut Bank & Trust, 175 Conn. 257, 398 A.2d 307 (1978). (An appeal may be brought by a next friend when the guardian ad litem refuses to appeal)
C. Who Can Retain an Attorney for the Infant?
1. See NY Family Court Act §241: This act declares that minors who are the subject of family court proceedings or appeals...should be represented by counsel of their own choosing or by law guardians. See Fargnoli -vs-Faber, 105 A.D.2d 523, 481 N.Y.S.2d 784 (3rd Dept. 1994)
2. In Kenny A. -vs- Perdue, 218 F.R.D. 277 (N.D. Georgia 2003), nine foster children sued individually and on behalf of a proposed class of foster children, alleging violations of substantive and procedural due process under the Adoption Act, the Early and Periodic Screening, Diagnosis and Treatment program of the Medicaid Act and Georgia law. The action was brought by a next friend.
There are two (2) basic models of professional responsibility. The Model Code of Professional Responsibility (Model Code) consists of three separate but interrelated parts: Canons, Ethical Considerations, and Disciplinary Rules. Unlike the Canons which represent general concepts and Ethical Considerations (EC) which represent objectives toward which lawyers should strive, Disciplinary Rules (DR) are mandatory rules of behavior.
The other legal ethics framework is the Model Rules of Professional Conduct (Model Rules). The Model Rules were revised in 2002. This outline will include the 2002 versions and where applicable, will be inserted under the corresponding Canon of the Model Code.
III. CANON 1. A Lawyer Should Assist in Maintaining the Integrity and Competence of the Legal Profession
A. EC 1-1: A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence. Maintaining the integrity and improving the competence of the bar to meet the highest standards is the ethical responsibility of every lawyer.
B. Model Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
IV. CANON 2. A Lawyer Should Assist the Legal Profession in Fulfilling its Duty to Make Legal Counsel Available
A. EC 2-1: The need of members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to educate laymen to recognize their problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.
B. EC 2-3: Whether a lawyer acts properly in volunteering in-person advice to a layperson to seek legal services depends upon the circumstances. The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist laypersons in recognizing legal problems. The advice is proper only if motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. It is improper if motivated by a desire to obtain personal benefit, secure personal publicity, or cause legal action to be taken merely to harass or injure another. A lawyer should not initiate an in-person contact with a non-client, personally or through a representative, for the purpose of being retained to represent him for compensation.
C. DR 2-104 Suggestion of Need of Legal Services: (A) 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: (1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client. (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 a qualified legal assistance organization. (3) A lawyer who is recommended, furnished or paid by any of the offices or organizations enumerated in DR 2-103(D)(1) through (4) may represent a member or beneficiary thereof, to the extent and under the conditions prescribed therein...
D. Model Rule 7.3 Direct Contact with Prospective Clients: (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer.
V. CANON 4. A Lawyer Should Preserve the Confidences and Secrets of a Client
A. EC 4-1: Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of confidences and secrets of one who has employed or sought to employ him. A client must feel free to discuss whatever he wishes with his lawyer and a lawyer must be equally free to obtain information beyond that volunteered by his client. A lawyer should be fully informed of all the facts of the matter he is handling in order for his client to obtain the full advantage of our legal system. It is for the lawyer in the exercise of his independent professional judgment to separate the relevant and important from the irrelevant and unimportant. The observance of the ethical obligation of a lawyer to hold inviolate the confidences and secrets of his client not only facilitates the full development of facts essential to proper representation of the client but also encourages laymen to seek early legal assistance.
B. EC 4-5: A lawyer should not use information acquired in the course of the representation of a client to the disadvantage of the client and a lawyer should not use, except with the consent of his client after full disclosure, such information for his own purposes. Likewise, a lawyer should be diligent in his efforts to prevent the misuse of such information by his employees and associates. Care should be exercised by a lawyer to prevent the disclosure of the confidences and secrets of one client to another, and no employment should be accepted that might require such disclosure.
C. DR 4-101 Preservation of Confidences and Secrets of a Client: (A) "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. (B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client. (2) Use a confidence or secret of his client to the disadvantage of the client. (3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
D. Model Rule 1.6 Confidentiality of Information: (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
VI. CANON 5. A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client
A. EC 5-1: The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute his loyalty to his client.
B. EC 5-14: Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.
C. EC 5-15: If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interest; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. If a lawyer accepted such employment and the interests did become actually differing, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially. On the other hand, there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests in matters not involving litigation. If the interests vary only slightly, it is generally likely that the lawyer will not be subjected to an adverse influence and that he can retain his independent judgment on behalf of each client; and if the interests become differing, withdrawal is less likely to have a disruptive effect upon the causes of his clients.
D. EC 5-21: The obligation of a lawyer to exercise professional judgment solely on behalf of his client requires that he disregard the desires of others that might impair his free judgment. The desires of a third person will seldom adversely affect a lawyer unless that person is in a position to exert strong economic, political, or social pressures upon the lawyer. These influences are often subtle, and a lawyer must be alert to their existence. A lawyer subjected to outside pressures should make full disclosure of them to his client; and if he or his client believes that the effectiveness of his representation has been or will be impaired thereby, the lawyer should take proper steps to withdraw from representation of his client.
E. EC 5-22: Economic, political, or social pressures by third persons are less likely to impinge upon the independent judgment of a lawyer in a matter in which he is compensated directly by his client and his professional work is exclusively with his client. On the other hand, if a lawyer is compensated from a source other than his client, he may feel a sense of responsibility to someone other than his client.
F. EC 5-23: A person or organization that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers. Some employers may be interested in furthering their own economic, political, or social goals without regard to the professional responsibility of the lawyer to his individual client. Others may be far more concerned with establishment or extension of legal principles than in the immediate protection of the rights of the lawyer's individual client. On some occasions, decisions on priority of work may be made by the employer rather than the lawyer with the result that prosecution of work already undertaken for clients is postponed to their detriment. Similarly, an employer may seek, consciously or unconsciously, to further its own economic interests through the action of the lawyers employed by it. Since a lawyer must always be free to exercise his professional judgment without regard to the interests or motives of a third person, the lawyer who is employed by one to represent another must constantly guard against erosion of his professional freedom
G. DR 5-105 Refusing to Accept or Continue Employment If the Interests of Another Client May Impair the Independent Professional Judgment of the Lawyer.
1. (A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
2. (B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, or if it would be likely to involve him in representing differing interests, except to the extent permitted under DR 5-105(C).
3. (C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
4. (D) If a lawyer is required to decline employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment.
H. DR 5-107 Avoiding Influence by Others than the Client.
1. (A) Except with the consent of his client after full disclosure, a lawyer shall not: (1) Accept compensation for his legal services from one other than his client. (2) Accept from one other than his client any thing of value related to his representation of or his employment by his client.
2. (B) A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.
3. (C) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) A non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) A non-lawyer is a corporate director or officer thereof; or (3) A non-lawyer has the right to direct or control the professional judgment of a lawyer.
I. Model Rule 1.7 Conflict of Interest: Current Clients
1. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
2. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.
J. Model Rule 1.8 Conflict of Interest: Current Clients: Specific Rules: (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer's independence of professional judgement or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6.
K. Model Rule 5.4 Professional Independence of a Lawyer: (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
VII. CANON 7. A Lawyer Should Represent a Client Zealously Within the Bounds of the Law
A. EC 7-11: The responsibilities of a lawyer may vary according to the intelligence, experience, mental condition or age of a client, the obligation of a public officer, or the nature of a particular proceeding. Examples include the representation of an illiterate or an incompetent, service as a public prosecutor or other government lawyer, and appearances before administrative and legislative bodies.
B. EC 7-12: Any mental or physical condition of a client that renders him incapable of making a considered judgment on his own behalf casts additional responsibilities upon his lawyer. Where an incompetent is acting through a guardian or other legal representative, a lawyer must look to such representative for those decisions which are normally the prerogative of the client to make. If a client under disability has no legal representative, his lawyer may be compelled in court proceedings to make decisions on behalf of the client. If the client is capable of understanding the matter in question or of contributing to the advancement of his interests, regardless of whether he is legally disqualified from performing certain acts, the lawyer should obtain from him all possible aid. If the disability of a client and the lack of a legal representative compel the lawyer to make decisions for his client, the lawyer should consider all circumstances then prevailing and act with care to safeguard and advance the interests of his client. But obviously a lawyer cannot perform any act or make any decision which the law requires his client to perform or make, either acting for himself if competent, or by a duly constituted representative if legally incompetent.
C. EC 7-15: The nature and purpose of proceedings before administrative agencies vary widely. The proceedings may be legislative or quasi-judicial, or a combination of both. They may be ex parte in character, in which event they may originate either at the instance of the agency or upon motion of an interested party. The scope of an inquiry may be purely investigative or it may be truly adversary looking toward the adjudication of specific rights of a party or of classes of parties. The foregoing are but examples of some of the types of proceedings conducted by administrative agencies. A lawyer appearing before an administrative agency, regardless of the nature of the proceeding it is conducting, has the continuing duty to advance the cause of his client within the bounds of the law. Where the applicable rules of the agency impose specific obligations upon a lawyer, it is his duty to comply therewith, unless the lawyer has a legitimate basis for challenging the validity thereof. In all appearances before administrative agencies, a lawyer should identify himself, his client if identity of his client is not privileged and the representative nature of his appearance. It is not improper, however, for a lawyer to seek from an agency information available to the public without identifying his client.
D. EC 7-18: The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person. If one is not represented by counsel, a lawyer representing another may have to deal directly with the unrepresented person; in such an instance, a lawyer should not undertake to give advice to the person who is attempting to represent himself, except that he may advise him to obtain a lawyer.
E. DR 7-101 Representing a Client Zealously: (A) A lawyer shall not intentionally: (1) Fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. (2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105. (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).
F. Model Rule 1.14 Client With Diminished Capacity
1. (a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
2. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
3. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
G. Model Rule 3.9 Advocate in Nonadjudicative Proceedings: A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
H. Model Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer: (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
I. Model Rule 1.4 Communication.
1. (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
2. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
J. Connecticut Formal Opinion 92-16 (1992): an attorney-client relationship does not exist simply because a party pays the attorney fees. The duty of loyalty extends to the client and not to the payor of the fee.
K. Texas Rule 1.08(e): The official comment to Rule 1.08 offers the following observations regarding this issue: Paragraph (e) [of Rule 1.08] requires disclosure to the client of the fact that the lawyer's services are being paid for by a third party. Such an arrangement must also conform to the requirements of Rule 1.05 concerning confidentiality and Rule 1.06 concerning conflict of interest. Where the client is a class, consent may be obtained on behalf of the class by court-supervised procedure. When an insurance company pays the lawyer's fee for representing an insured, normally the insured has consented to the arrangement by the terms of the insurance contract.
VIII. Resources
A. Prior Austin Conference Handouts
1. Practical Ethics: When Can You Withdraw from a Hearing or Court Case? When Can You Settle for less than the Client Really Wants? Austin 2005 Conference Handout: http://www.nls.org/conf2005/practical_ethics.htm
2. Practical Ethics: Use of Advocate of Paralegal in a P&A Practice. Limitations Based on Unauthorized Practice of Law, Austin 2004 Conference Handout : http://www.nls.org/conf2004/practical_ethics.htm
3. The Ethical Dilemma of Dealing with Adverse Evidence-Zealous Advocacy vs. Duty to the Courts, Austin 2003 Conference Handout: http://www.nls.org/conf2003/ethical-dilemma.htm
4. Practical Ethics and Fee Shifting Statutes, Austin 2002 Conference Handout: http://www.nls.org/conf2002/practical_ethics.htm
5. Ethical Conflicts in Representing People with Questionable Capacity, Austin 2001 Conference Handout: available from NLS.
B. Web Sites
1. http://www.law.cornell.edu/ethics/aba/mcpr/MCPR.HTM
This site takes you into the Preamble to the Model Code of Professional Responsibility. At the conclusion of each section, there is a link to the Model Rules version. The notes for each section are also accessed through links. If you follow the links to the Model Rules version, you can access comments to the Rules, history, current version, etc.
2. http://www.law.cornell.edu/ethics/comparative/
This site takes you to the American Legal Ethics Library of the Legal Information Institute (LII), where you will find an amazing comparison of the rules and code by jurisdiction.
3. http://www.abanet.org/legalservices/downloads/sclaid/civilstandards.pdf
This site is for the Standards for Providers of Civil Legal Services to the Poor, 2002 version.
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