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ETHICS OPINION 363-1941
NUMBER 363 1941
Question. A number of New York City schoolteachers desire to form either a nonprofit membership corporation or an unincorporated association in furtherance of the common interests of their members, as such. It is contemplated that members will pay annual dues which will be used to defray administrative expenses, publication of professional periodicals, and payment of the attorney’s retainer.
I should appreciate an expression of opinion as to whether it would be professionally ethical for an attorney to represent such an association, upon an annual retainer basis, under the following circumstances:
1. To furnish legal advice to the association with reference to state legislation, and acts of the Board of Education of the City of New York, which affect teachers as a group.
2. To represent the association, either by litigation or otherwise, in connection with state legislation or an act of the Board of Education of the City of New York, by instituting appropriate action in the name of one of the members of the association.
3. To furnish legal advice to a member of such an association who has an individual problem affecting his status as a teacher without charging a fee because of his membership in the association.
4. To furnish legal advice to a member of the association who has an individual problem affecting his status as a teacher, e.g., pension rights, such a member to be charged a nominal fee because of membership in such association.
5. Is it proper for the attorney to represent a member of the association in litigation involving his individual professional rights, e.g., a teacher suspended on charges of incompetency, without charging a fee pursuant to his retainer with the association? Upon payment of a nominal fee?
6. To advise members of such an association without charge with respect to individual legal matters unrelated to their professional problems. Would the opinion be different in the event that the individual teacher were charged a nominal fee because of his membership in the association?
7. To draft commercial instruments for the individual members and to represent the individual members in commercial litigation without charging a fee? Upon payment of a nominal fee?
8. To assist in the publication of a pamphlet or periodical containing legal articles of interest to the members of such an association?
I should also appreciate art opinion as to the propriety of the association’s solicitation of members by advising prospective members that in consideration of their membership in such an association they would receive free legal advice and representation; to advise such prospective members that in consideration of their membership in such an association they would be entitled to free legal advice and representation in matters directly concerning their status as teachers and would further receive advice and representation in matters unrelated to teaching, upon the payment of certain fees, the fee to be reduced below the attorney’s usual fee because of the member’s participation in the association.
Answer. Canon 35 provides;
The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client and lawyer. A lawyer’s responsibilities and qualifications are individual. He should avoid all relations which direct the performance of his duties by or in the interest of such intermediary. A lawyer’s relation to his client should be personal, and the responsibility should be direct to the client. Charitable societies rendering aid to the indigent are not deemed such intermediaries.
A lawyer may accept employment from any organization, such as an association, club or trade organization, to render legal services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of such an organization in respect to their individual affairs.
It is not professionally improper for the lawyer to represent an individual member at the expense of the association, where such representation is for the promotion of the common interest of the members of the association and not merely for the benefit of the individual, as, for example, in a test case (Opinion 331 of this Committee). Before undertaking such representation, however, the lawyer must point out to the individual any possible divergence between his interest and that of the group. The lawyer must never permit the individual unwittingly to assume the burden of action or inaction deemed desirable by the group where his individual interest might dictate another course.
An agreement with the lawyer whereby the proposed association is to solicit for him the business of individual members, or to solicit new members upon the representation that they will receive legal advice or assistance, either free of charge or upon the payment of nominal fees, is disapproved.
Subject to the foregoing and subject further to the limitation that group representation and representation of an individual member at the expense of the group must, of course, comply with the provisions of the applicable sections of the penal law relating to unlawful’ practice of the law, the questions are answered as follows: questions 1 and 8 in the affirmative; question 2 in the affirmative, provided the matter is one in which the organization as an entity is interested; questions 3, 4, and 5 in the negative unless the matter is one in which the organization as an entity is interested. Both questions 6 and 7 are answered in the negative. Such business, however, as comes to the lawyer from individual members which he has not solicited either directly or through the association he may accept, even though his only contact with the individual has been through the latter’s membership in the association.