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Mary Pat Gallagher

New Jersey Law Journal

01-18-2008

Lawyers who answer legal hotlines can't rely on a disclaimer to avoid forming an attorney-client relationship, even with one-time callers, a New Jersey Supreme Court ethics committee held on Thursday.

A disclaimer is ineffective "as it is likely such a relationship will arise in the course of the provision of services by the attorneys staffing the legal hotline," the Advisory Committee on Professional Ethics said in Opinion 712.

The committee rejected a nonprofit trade association's pitch for a more lenient rule, under which lawyers could field calls from its members without creating attorney-client relationships.

The association wanted to know whether an intervening ethics rule change had displaced an earlier ethics opinion that had addressed the issue of one-shot consultations.

In Opinion 671, issued in 1993, the committee said that when a lawyer and an individual have one-on-one discussions, "there is a presumption that legal advice may be relied upon by the client, and that an attorney-client relationship exists."

Opinion 671 stated that although the attorney-client relationship "may be limited to a short time frame, the duration, of a telephone call, and to a curtailed scope, the topic of the request for advice," it "still springs into existence whenever 'the legal counseling becomes particularized to an individual -- eliciting facts and providing reaction and advice specific to the individual's situation.'"

But in 2004, Rule of Professional Conduct 6.5 took effect, loosening conflict-of-interest rules for lawyers who, under the auspices of a court program or nonprofit group, provide "short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter."

The association described the proposed hotline in language that tracked RPC 6.5, as "short-term, limited legal services" to members, with no expectation of continued representation.

Members would be advised in writing that no attorney-client relationship would arise and that they waived any potential conflict of interest unless the lawyer with whom they spoke knew of a conflict. No formal conflicts check would be done.

The lawyers were to be compensated by the association, in the form of a flat annual fee or an hourly rate.

But the committee concluded that Opinion 671 still applied, including its requirement that organizations providing legal services to members register with the Supreme Court under RPC 7.3(e)(4).

Among the existing legal hotlines in New Jersey is an ethics hotline operated by the committee itself and authorized by the court in Rule 1:19-9 to provide New Jersey lawyers with "general information and research assistance, but not legal advice or advisory opinions." The rule states that staff members must provide a disclaimer before they can render assistance. They must inform callers that they are not being given a legal opinion and they must make their own judgment on the ethical issue presented.

Committee Chairman Melville Miller Jr. says no attorney-client relationship results from a call to the ethics hotline.

"The court can define the governing rules and they have done so," he says.

In addition, he does not believe that callers are given advice "that gets down to the level of what an attorney will tell a client," but more general pointers.

There is good reason for that, according to Miller. "The judicial system itself can't be in the position of advising a party in a way that would constitute an attorney-client relationship."

Miller is also the executive director of Legal Services of New Jersey, which runs a statewide legal hotline that advises low-income New Jersey residents on family, housing, healthcare, employment and other civil issues.

Even though calls to that hotline do not lead to extended representation, "because of the way we triage our resources," they do create an attorney-client relationship, says Miller.

With the giving of advice based on individualized facts, "all the ethics rules kick in," including confidentiality, competence and the duty to make clear the limited scope of the representation, says Miller.

Other groups also provide legal phone consultations.

For example, the New Jersey Press Association has a member-only hotline. Thomas Cafferty of Lyndhurst's Scarinci & Hollenbeck, who fields the queries -- mostly about the Open Public Records Act and Open Public Meetings Act -- says he has not yet read Opinion 712 and needs to assess its impact.

The New Jersey Volunteer Lawyers for the Arts offer a one-time call to consult with a volunteer attorney on arts-related issues, open to anyone, says the organization's Web site. Laurel Springs, N.J., solo Tracey Batt, the organization's director, could not be reached for comment.