Ethics Opinion 076NEW YORK STATE BAR ASSOCIATION Professional Ethics Committee Opinion
Opinion #76 – 06/06/1968 (25-67)
existing clients, corporation, duty of lawyer, employment, intermediary, labor, law practice, legal services, representation
Modified by 416Topic: Group Legal Services Programs
Digest: Validity of group legal service programs under recent United States Supreme Court decisions
Canon: Former Canon 27, 35, 47
Numerous inquiries have been made relating to the validity of various types of group legal service programs. Heretofore, Canons 27 and 35 have been widely interpreted as making it ethically improper for lawyers to organize or participate in most group legal service programs. The current inquiries stem from widespread uncertainty as to the continued validity of prior interpretations applicable to such programs in view of the recent decisions of the United States Supreme Court in United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967); Railroad Trainmen v. Virginia State Bar Association, 377 U.S. 1 (1964); and NAACP v. Button, 371 U.S. 415 (1963).The Mine Workers case sustained the employment of a salaried attorney by a labor union to prosecute workmen’s compensation claims for union members. The Trainmen case sustained a referral plan under which union members with personal injury claims arising out of their employment were advised to consult specific lawyers who had agreed with the union to handle such cases at specific rates. The NAACP case permitted that organization to provide the services of staff lawyers to members and to others in litigation involving racial discrimination.
Our Committee recognizes that substantial uncertainties have been created by these Supreme Court decisions as to the extent to which group legal services programs, previously held to be ethically improper, should now be permitted. These decisions, together with the growing movement to provide adequate legal service to the disadvantaged, have led bar associations throughout the country to begin to restudy the desirability of amending Canons 27 and 35 so as to permit the possible approval of certain appropriately organized group legal service programs. Under the present doubtful state of the law, and in the absence of amendments to Canons 27 and 35, we are not prepared to approve programs not clearly covered by the three cases Cited above.As we understand the Supreme Court decisions, they are based upon the constitutional guarantees of freedom of speech, assembly and petition. They do not, however, appear to mandate approval of programs lacking adequate safeguards to prevent commercialization, or which fail to assure independence of professional judgment and fidelity in the lawyer-client relationship.Absent some future modification of the Canons, we adhere to our Opinions No. 53 and 53(a), in which we concluded that it would be improper under Canons 35 and 47 for a lawyer to be employed by a corporation to render legal service to corporate employees. The Supreme Court decisions in our opinion, do not give the right to employers, either corporate or individual, to enter into contracts to provide legal services for their employees or for others, in violation of accepted professional standards or of state law.Although this Committee does not render opinions on matters of law, we call attention to Section 495 of the Judiciary Law. Inter alia, this Section forbids corporations and voluntary associations from practicing law, or rendering legal services of any kind, or furnishing attorneys or counsel.