RECOMMENDATIONS                                                                                    67  FORDHAM LAW REVIEW  1751 (1999)
 

1. The recommendations are consecutively numbered for ease of reference. Citations to these recommendations elsewhere in this volume shall be as follows:
Recommendations of the Conference on the Delivery of Legal Services to Low-Income Persons, 67 Fordham L. Rev. 1751, Recommendation ___, at ___ (1999) [hereinafter
Recommendations].
 

RECOMMENDATIONS                                                                                    67  FORDHAM LAW REVIEW  1781 (1999)
 

V. INFLUENCE OF THIRD PARTIES ON THE LAWYER-CLIENT RELATIONSHIP

Preamble
Third-party funders can significantly influence the attorney-client relationship. When that influence takes the form of unreasonable re-strictions
on the independent professional judgment of the lawyer, or on the attorney-client relationship, it puts the attorney in a serious
ethical dilemma. This issue is heightened because legal resources for poor people are insufficient to provide access to justice.
Restrictions imposed by third-party funders on lawyers for the poor subvert the functioning of the courts in ways that violate the separa-tion
of powers. Courts must be able to rely on the assumption that lawyers will exercise independent professional judgment. Lawyers
should not only say what funders permit them to say, as this will un-dermine the rule of law.
We strongly urge that the following recommendations for amend-ments to the comments to the Model Rules be considered by the Ethics
2000 Committee and by state regulatory authorities.

A. Considerations and Recommendations

Consideration 1: Restrictions

78. Commentary to Model Rule 1.8( f) and an ethical considera-tion to DR 5-107( B) should be added to reflect the following:

Third-party funders can significantly affect the attorney-client re-lationship. When that influence takes the form of unreasonable re-strictions
on the independent professional judgment of the lawyer or on the attorney-client relationship, it can create serious ethical
dilemmas. The dilemma may be heightened when there are insuffi-cient legal-services attorneys to provide access to justice for the
poor. (a) A restriction imposed by a third-party funder is likely to be
unreasonable if: (i) it denies tools essential to competent representation;
(ii) it interferes with the lawyer's professional judgment to select the manner of representation;
(iii) it constrains the lawyer's independent professional judg-ment in using funds from other sources;
(iv) it interferes with the lawyer's ability to counsel a client freely on lawful goals;
(v) it requires the lawyer to violate another ethical rule; and if
(vi) the amount of the funding will restrict the ability of the lawyer to provide competent representation.
(b) A restriction is more likely to be unreasonable when imposed during the course of the representation.

Consideration 2: Positive Influences
 

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Issue: Third parties can have a positive influence on the attorney-client relationship when they seek to expand client access to justice or
to enrich the lawyer's representation of individual clients.

79. The legal profession should explore the potential for positive influence by third parties.

Consideration 3: Withdrawal

Issue: The public funding and public provision of legal services have heightened their importance for poor people. Withdrawal due to
inadequate funding or restrictions may leave clients without represen-tation. Market forces may work to correct this problem in many areas
of practice, but not in this area. Funders of lawyering programs for the poor and the legal profession should not impose unreasonable
restrictions.

Issue: If a tribunal determines that the lawyer must continue the representation of a client despite the restrictions imposed by the
funder, the funder should respect the tribunal's determination.

80. Commentary should be added to Model Rule 5.4 and an ethi-cal consideration to DR 5-107( B) to reflect the following:

(a) Even if other representation is possible, withdrawal is not desir-able because it disrupts the ongoing representation and may
prejudice the client's case. Therefore, restrictions that require a lawyer to withdraw from representation are objectionable.
(b) To protect the client's interest, a lawyer may challenge the law that requires withdrawal.
Practice Guideline: When seeking leave to withdraw, the law-yer should, consistent with the duty not to reveal information
relevant to the representation of the client: (i) provide the tribunal with a full explanation of the reasons
for the withdrawal; (ii) request the tribunal to enjoin interference by the third
party; (iii) request the tribunal to hold a hearing to explore reasons
for withdrawal, the harm to the client, the availability of other counsel, and other consequences;
(iv) request a declaratory judgment against the restriction; (v) request the tribunal to issue orders regarding transition
and cooperation with substitute counsel; (vi) request the tribunal to consider whether under all the cir-cumstances,
new counsel will be able to adequately rep-resent the client; and
(vii) advise the court of any other relevant consequences.

Consideration 4: Consent

Issue: If a third party imposes a restriction that interferes with the lawyer's independent professional judgment, a client's consent to the
services offered under those restrictions may be ethically problematic because it may result from the client's limited access to legal services
and, therefore, may be involuntary.
 

RECOMMENDATIONS                                                                                    67  FORDHAM LAW REVIEW  1783 (1999)

81. Commentary to Model Rule 1.8( f) and an ethical considera-tion to DR 5-107( B) should be added to reflect the following:

A client's limited access to a lawyer is a coercive influence that com-promises the client's ability to consent to the restrictions imposed
by third parties including: (a) limitations on the scope and manner of the representation;
(b) conflicts of interest; and (c) disclosures of information relating to the representation.

B. Issues for Further Study

(a) To what extent do ethical issues accompany the unioniza-tion of the staff of a legal services program?
(b) To the extent that ABA Committee on Ethics and Profes-sional Responsibility, Formal Opinion 96-399 does not
provide adequate guidance on the specific ethical consid-erations posed by the influence of third-party funders,
should it be revised or rescinded? (c) To what extent can the government, in connection with a
funding decision, reconceptualize the traditional lawyer-client relationship? For example, in child support pro-ceedings
in which the state is paying lawyers to assist indi-gent custodial clients, may the state specify that the state is
the client, and deny the existence of a lawyer-client rela-tionship between the lawyer and the custodial client?
(d) To the extent that the government has an obligation to take all steps possible to ensure equal access to justice,
should government influence be viewed differently from other third-party influences? Is there a different expecta-tion
when legal services programs receive funds from the government rather than from private sources? Is there
any distinction when it comes to ethical implications? (e) To what extent does the auditing or assessment of results
of the lawyer's representation constitute undue influence? Are there chilling effects from the publication or use of
case outcomes, strategies, and results? Does that publica-tion or use compromise the attorney's ability to exercise
independent professional judgment? (f) To what extent might collaboration between lawyers and
other professionals influence client representation? Law-yers and other professionals should explore ways to col-laborate,
to communicate effectively with clients, and to share responsibility without violating the attorney-client
relationship. Cooperating disciplines may include those comprising social workers, aging-services providers, medi-
 

RECOMMENDATIONS                                                                                    67  FORDHAM LAW REVIEW  1784 (1999)
 

cal professionals, clergy, accountants, and community organizers.
(g) To the extent that restrictions on existing funding limited access to legal services, should additional state, local, and
private funding sources be developed that do not impose unreasonable limitations on the attorney-client relation-ship?
For example, sources of additional funding might in-clude escheat, cy pres and punitive damages funds, and
filing fees.
 

C. Education

client relationship and undermine equal access to justice. Legal educators have a particular obligation to address these
issues pervasively in substantive courses and in law school clinics.
84. Develop a plan to communicate to private funders the recom-mendations, supporting analyses, and comments regarding
third-party influence. We suggest that such a plan should util-ize educational programs and publications that target the pro-fessional
philanthropic community.