Legal Services Lawyers and the Influence of Third Parties on the Lawyer-Client Relationship: Some Thoughts From Scholars, Practitioners, and Courts
Legal Ser vices Lawyers and the Influence of Thir Parties on the Lawyer-Client Relationship: Some d Thou ghts From Scholars, Practitioners, and Courts
Samuel J. Levine 0 1
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1 Samuel J. Levine, Legal Services Lawyers and the Influence of Th ird Parties on the Lawyer-Client Relationship: Some Th oughts From Scholars , Practitioners, and Courts, 67 Fordham L. Rev. 2319 (1999). Available at:
MONG the challenges facing the lawyer who renders legal
services to clients with limited means are ethical and professional
questions relating to the influence of third parties on the lawyer-client
relationship. Although all lawyers may potentially face ethical
dilemmas involving third parties, legal services lawyers are particularly
vulnerable to such issues because, unlike most lawyers, legal services
lawyers generally rely on the financial support of someone other than
These challenges may take many forms, affecting a variety of ethical
and professional considerations. This Article examines a number of
areas in which bar association committees, scholars, and courts have
addressed the issue of third-party influence on legal services lawyers.
Part I discusses the challenges to the fundamental value of
attorneyclient confidentiality that may arise as a result of the influence of third
parties on legal services lawyers. Part II describes the more direct
influence of third parties on legal services lawyers, addressing
problems relating to the Model Rules of Professional Conduct.
Finally, Part III briefly discusses some of the broader issues of
thirdparty influence on resource allocation in legal services lawyering.
It is fundamental that in order to maintain the proper
attorney-client relationship, an attorney must preserve the client's confidences.'
* Assistant Legal Writing Professor & Lecturer in Jewish Law, St. John's
University School of Law; LL.M. 1996, Columbia University; Ordination 1996, Yeshiva
University; J.D. 1994, Fordham University; B.A. 1990, Yeshiva University.
I thank Bruce Green and Russell Pearce for inviting me to present this paper at the
Conference on "The Delivery of Legal Services to Low-Income Persons: Professional
and Ethical Issues," held at Fordham University School of Law, December 4-6, 1998.
1. See Model Code of Professional Responsibility Canon 4 (1981); Model Code
of Professional Responsibility EC 4-1 (1981) ("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."); see also Model Code of Professional Responsibility Canon 6
(stating that a lawyer should represent a client competently); ABA Comm. on Ethics
and Professional Responsibility, Formal Op. 287 (1953) (finding that a lawvyer is not
"bound to speak out" when the court has misinformation about his client). But see
At times, the actions of the Legal Services Corporation ("LSC") 2 and
other legal services organizations appear to threaten the lawyer-client
relationship by implicating client confidentiality. In a 1974 opinion,
the ABA Committee on Professional Ethics discussed the impact of
the establishment and functions of the LSC on the duty of
The opinion cited the lawyer's obligation, under Canon 4 of the
Model Code of Professional Responsibility, to preserve the
confidences and secrets of a client, but found that "the board of directors
of a legal services office could require staff lawyers to disclose to the
board such information about their clients and cases as was
reasonably necessary to determine whether the board's policies were being
carried out."4 The Committee was careful to add, however, that "the
information sought must be reasonably required by the immediate
governing board for a legitimate purpose and not used to restrict the
office's activities, and that in many contexts a request for such
information by a board may be the practical equivalent of a requirement."5
Thus, the opinion concludes, "a legal services lawyer may not disclose
confidences or secrets of a client without the knowledgeable consent
of the client." 6
More recently, in a 1985 opinion, the Ethics Committee of the
Mississippi State Bar considered the rules of confidentiality as applied to
a legal services corporation.7 A local legal services agency was funded
by a private, federally-funded corporation, which required that the
local agency would "upon request cooperate with all data collection and
evaluation activities undertake (sic) by the corporation, and give any
authorized representative ... access to all records, books, papers or
documents, provided that neither the corporation nor the .. . (sic)
shall have access to any reports, records, or information subject to the
ABA Comm. on Ethics and Professional Responsibility, Formal Op. 250 (1943)
(noting that a lawyer may reveal a confidence in a suit to enforce payment of fees). For
illuminating discussions and varied perspectives on the extent of the duty of
confidentiality, see Symposium, Executing the Wrong Person: The Professionals'
EthicalDilemmas, 29 Loy. L.A. L. Rev. 1543 (1996).
2. Professor Marshall Breger has described the LSC as "the autonomous
federally-funded public corporation charged by Congress with providing legal assistance to
those persons whose income is below prescribed limits [and] makes grants to local
legal aid programs that employ attorneys for this purpose." Marshall J. Breger, Legal
Aid for the Poor: A ConceptualAnalysis, 60 N.C. L. Rev. 281, 284 (1982) [hereinafter
Breger, Legal Aid].
3. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 334
4. Id. (citing ABA Comm. on Ethics and Professional Responsibility, Formal Op.
324 (1970)). The opinion thus adopted, but also modified, the approach offered in the
ABA Comm. on Ethics and Professional Responsibility, Formal Op. 324 (1970).
5. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 334
7. See Ethics Comm., Mississippi State Bar Ass'n, Op. 101 (1985).
attorney client privilege."' While the local agency permitted the
federally-funded corporation to inspect its fiscal records and provided
information on cases without identifying particular clients, the
corporation, for the purpose of evaluating the quality of service of the
local agency, insisted that its evaluators examine some or all of the
files relating to particular clients. 9
Before assessing the issues, the Committee noted that the question
raised the "very difficult problem of balancing the need for proper
stewardship of public monies with the demands of confidentiality on
behalf of the client." 10 The opinion articulated two distinct but
complementary goals underlying the principle of client confidentiality: to
protect the client, who could potentially be harmed by release of the
information, and to protect the adversary system, by encouraging full
discourse on the part of the client." Citing the Mississippi State
Code, which requires attorneys "[t]o maintain inviolate the confidence
and, at every peril to themselves, to preserve the secrets of their
clients,"12 the opinion looked to the Model Code of Professional
Responsibility to define "confidence" and "secret." 3 Under the Code,
"[c]onfidence" 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
rbeaqrruaessstiendg boerhweoldulidnvbieolalitkeeloyr ttohebdeisdceltorsiumreenotaflwthoicthhewcoluieldnt.b1e4
emIn an attempt to further refine these definitions, the Mississippi
Committee synthesized a number of opinions from other jurisdictions.
The Committee valued one such opinion for emphasizing the
principle, fundamental to the enterprise, that "a legal aid lawyer owes the
duty of confidentiality to his client, and that the one to whom legal
services are rendered, rather than the one who pays the lawyer, is the
client."'" Additionally, the Committee looked to a 1974 ABA Formal
Opinion,16 a prior ABA Informal Opinion," and a Tennessee Ethics
Opinion, 8 all of which, the
"rather stringent positions."1 9
Mississippi Committee found, took
Before arriving at its conclusion,
though, the Committee also considered the more lenient view of the
Kentucky Bar Association.20
Based on the various codes and opinions, the Committee offered a
list of several findings.2 ' Significant among these were the decisions
that "the legal services lawyer cannot reveal client confidences or
secrets to auditors from the [L]egal [S]ervices [C]orpration, or to
anyone else"; "any information that would tend to identify the client in a
given case, whether it be name, particulars of the case, objective
sought, or other, is a 'secret' within the meaning of DR 4-101(A)"; "if
the information to be disclosed is a matter of some public record that
shows that the client is a client of the legal services office or one or
more of its attorneys, the matter is not 'secret' merely because it
identifies the client." 22
The ABA Committee on Ethics and Professional Responsibility
recently provided further guidance regarding confidentiality, updating
its 1974 opinion.' A nonlawyer supervisor in a government
eldercare office requested access to client files in order to compile
demographic information about the agency's clients.2 4 The Committee
found that, under Model Rule 1.6,1 "as long as the information will
be used to carry out the client's representation or its disclosure to the
supervisor will otherwise be helpful to the lawyer in carrying out the
representation, disclosure to the supervisor is not prohibited simply
because the supervisor is not a lawyer.' '26 The ABA Committee did
caution, though, that "[b]efore making the disclosure ... the lawyer
must assure that the supervisor understands the confidential nature of
the information and the limited purposes for which it may be used. ' ' 7
In addition, the opinion suggested that "the needs of the nonlawyer
supervisor to collect demographic information about agency clients
can be met by appropriate general inquiries to the lawyer concerning
all of the lawyer's files." Then, the lawyer can "glean the relevant
data from those files and disclose it to the nonlawyer supervisor in a
way that does not in any way compromise the confidentiality of any
particular client's data or permit the client to be identified or the data
to be traced to that client."'29
A similar question recently came before the New York City Bar
Committee on Professional and Judicial Ethics, regarding
attorney-client confidentiality in the case of an attorney who worked for a social
services agency.30 Under Social Services Law section 413, certain
agency employees were "required to report or cause a report to be
made ... when they have reasonable cause to suspect that a child
coming before them in their professional or official capacity is an
abused or mistreated child ....
In considering the proper conduct of an attorney working for the
agency, the Committee first emphasized that in representing a minor
as a client, like any attorney, a social services lawyer "must provide
independent, zealous and competent representation and must
preserve the client's confidence in accordance with the provisions of the
Code of Professional Responsibility. ' 32 Indeed, the Committee
stressed that even though the lawyer was compensated by the social
services agency, a lawyer "must represent her clients with independent
professional judgment [and] not allow the agency to direct or regulate
her professional judgment in rendering legal services to clients."33
Moreover, minors' lawyers "owe them the duties of loyalty, zealous
representation, competence and confidentiality that a lawyer would
ordinarily owe to any client."34
Like the Mississippi State Bar Ethics Committee,35 the New York
City Bar Committee then focused on the meaning of the terms
"confidence" and "secret" in DR 4-101(B).3 6 The Committee found that
"'[c]onfidences' include information protected by the attorney-client
privilege," while "'secrets' include 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 likely
to be detrimental to the client."37 In short, they include
"'substantially all information gained in the professional relationship."' 38
The Committee continued its analysis of the Model Code by
looking at the exceptions to confidentiality under DR 4-101(C). 39 The first
exception allows the lawyer to reveal a confidence when "required by
law."' 4° Although questions of law are beyond its authority, the
Committee noted that, if the lawyer is uncertain as to whether the law
requires disclosure of suspected child abuse or mistreatment, the lawyer
"should take available legal steps to seek clarification of the law
before making disclosure., 41
The second exception, according to the New York Bar Committee,
allows disclosure to save the client's life.42 While the Committee
observed that the Code does not allow disclosure merely when the
lawyer believes it to be in the best interests of the client, the Committee
found that "a lawyer has latitude to report information concerning
child abuse or mistreatment in the rare case in which the lawyer
honestly concludes, after full consideration, that disclosure is necessary to
save the client from being killed or maimed. 43
33. Id. (citing Model Code of Professional Responsibility DR 5-107(B) ("A lawyer
shall not permit a person who .. .employs[ ] or pays [the lawyer] to render legal
services for another to direct or regulate his [or her] professional judgment in
rendering such legal services")).
35. See Ethics Comm. of the Miss. State Bar, Op. 101 (1985).
36. See Committee on Prof'l and Judicial Ethics, Association of the Bar of the
City of New York, Formal Op. 1997-2.
39. See id.
40. Id. (citing Model Code of Professional Responsibility DR 4-101(c)(2) (1981)).
42. See id.
43. Id. (noting, however, that the Model Code of Professional Responsibility DR
4-101(C) "does not explicitly" provide for this).
The Committee also considered a possible third exception, which
involves a client incapable of making a reasoned judgment regarding
whether the lawyer should report the possibility of mistreatment or
abuse. 4 According to the Committee, if the lawyer determines that
the minor lacks decision-making capacity and the lawyer continues to
represent the minor, "then in the course of the representation the
lawyer may make decisions, including those concerning confidentiality or
disclosure, that the client cannot make in a reasoned way."" Even in
this instance, however, "in deciding on behalf of the incapacitated
client whether to report suspected child abuse or mistreatment, the
lawyer should make a principled decision as to whether or not such
disclosure would be in the client's best interests."46 Moreover,
"[a]lthough the client's decision-making is impaired, a lawyer should
not lightly disregard the client's insistence that the lawyer keep his
The issue of confidentiality and the control of third parties is
relevant to other settings as well, such as the law school clinic. In a recent
case, in response to the actions of Tulane Law School's environmental
clinic, a number of business groups requested that the Louisiana
Supreme Court place restrictions on student practice, including
limiting the types of clients that law school clinics may represent, requiring
representation of other clients, and limiting the supervisory capacity
of clinical faculty.' 8 The Association of American Law Schools
("AALS") opposed these proposals on several grounds,4 9 including
the potential threat to lawyer-client confidentiality.
One proposal required that the clinic submit to screening and
approval by a panel of "individuals with knowledge and representations
of the various types of interests and positions affected by the [case]"
who would "determine whether there is a substantive basis for the
action to be taken."5 The AALS noted that no other state had
adopted such a restriction on clinics, and argued that the requirements
would violate the attorney's duty of confidentiality.5 '
The AALS cited numerous sources to support its argument. First,
the Louisiana Rules of Professional Conduct place on an attorney the
duty to "not reveal information relating to [the] representation of a
client."5" Second, the ABA Committee on Ethics found that a
legislative LSC proposal that "required disclosure of (a) the client's identity,
and (b) certain other facts relating to representation, conflicts with the
lawyer's obligation [of confidentiality]. 53 Third, in a situation of a
pre-paid legal services plan, the Ethics Committee found that "quality
control mechanisms and other features are unacceptable to the extent
that they lead to the disclosure by the lawyer of information relating
to the representation in violation of the Rules."54 Finally, the AALS
referred to the 1974 and 1995 ABA Committee on Ethics and
Professional Responsibility opinions regarding the LSC,55 which addressed
the disclosure of client information by staff lawyers to the board of
directors. Significantly, the Committee wrote that "the information
sought must be reasonably required by the immediate governing
board for a legitimate purpose and not used to restrict the office's
activities," and found it "difficult to see how the preservation of
confidence and secrets of a client could be held inviolate . . . when the
[client's] proposed action is described to those outside of the
[clinic]." 56 In short, the AALS argued, under the proposed
the directing panel, comprised of outside interests, would receive
information for the very purpose of restricting the office's activities.
And the clinic lawyer's disclosures have the real possibility of
adversely affecting the client, since the panel could use the
informathe state ... the law faculty will be limited in selecting what it deems the best method
for teaching law students in the application of substantive law, litigation skills, and
professional values." Id. at 556.
50. Id. at 565 (quoting Letter from La. Ass'n of Business and Industry to Chief
Justice Calogero 2 (Sept. 9, 1997)).
51. See id.
52. Id. at 565-66 (citing La. Rules of Professional Conduct Rule 1.6).
53. Id. at 566 (citing ABA Comm. on Ethics and Professional Responsibility,
Formal Op. 399 (1996)).
54. Id. (citing ABA Comm. on Ethics and Professional Responsibility, Formal Op.
55. See id.
tion to deny representation a5n7d because members of the panel may
represent opposing interests.
THIRD-PARTY INFLUENCE AND THE MODEL RULES
One of the most vexing ethical dilemmas for legal services attorneys
involves the influence on the representation of clients by third parties
who are funding the legal services organization. This problem, as it
relates to congressional influence on the LSC, arose with particular
urgency in relation to congressional action following the November
1994 election. As part of the "Contract with America," Congress
implemented substantial cuts in the funding provided to the LSC.58 In
addition, Congress enacted extensive restrictions on the practices of
the LSC.5 9
Certainly, this legislation did not represent the first time that
Congress placed restrictions on the actions of the LSC. Indeed, the very
establishment of the LSC by Congress carried with it various
guidelines curtailing the autonomy of legal services attorneys. 60 As one
commentator suggested, however, the proposed legislation was unique
and particularly troubling to legal services attorneys because previous
restrictions had been limited to "the type of clients that could be
represented, or even . . . the type of actions that could be brought.- 6 1
"[W]hat had never been done before," though, "was to impose
restrictions on the legal arsenal of tools available to a client once a person
was determined eligible and the case involved an acceptable subject
matter. A restriction on how to proceed with that case, and
limitations on the kind of advocacy to pursue, had never before been
In response to the pending legislation, at the request of "members
of the legal services community," the ABA Committee on Ethics and
Professional Responsibility issued an opinion for the purpose of
"provid[ing] guidance regarding legal services lawyers' obligations
under the new funding regime. '63 The opinion was the subject of
much discussion and controversy, 64 and provided the framework for a
panel on legislative issues, conducted as part of a broader conference
on the LSC restrictions held at Fordham University School of Law in
One panelist, Helaine Barnett,6 6 focused on the opinion's discussion
of ethical issues regarding existing clients. For example, when the
attorney is faced with existing high-priority cases that violate funding
regulations, the opinion states that "where the LSC is the sole source
of funds, the choice is clear: in such a circumstance, the lawyer's
withdrawal from ineligible matters would be mandatory, since it would
otherwise be impossible for the lawyer to fulfill her obligations to any
clients. ' 67 However, when the LSC is not the sole source of funds, the
attorney must determine "whether the greater good is served by
forgoing LSC funding and maintaining restricted
representations-undoubtedly at the cost of some services-or by withdrawing from
prohibited matters and preserving those aspects of the practice that
comply with restrictions."6 8 Barnett notes, however, that the opinion
does not address the relationship between the potential violation of
federal funding guidelines and the provision in Model Rule 1.16 that
states that withdrawal may be mandatory when "required by law."6 9
Another area of concern that the opinion does not address, one that
troubled many of the panelists at the Fordham symposium, involves
the influence on the lawyer-client relationship by a third party paying
for the representation.7" Professor Stephen Ellmann discussed this
problem at length,7 analyzing the issue in the context of Model Rule
5.4(c), which states that "[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."' Ellmann identifies a similar
provision, Model Rule 1.8(f), which states that a third party can pay for a
lawyer's representation only if "(1) the client consents after
consultation [and] (2) there is no interference with the lawyer's independence
of professional judgment or with the client-lawyer relationship."' 3
Ellmann traces a series of controversies that accompanied the
emergence of legal services organizations, stemming from the ethical
concern that the establishment of these organizations allowed for
thirdparty interference with the practice of law. He cites a number of state
court cases in which the lawfulness of legal services organizations was
challenged on the theory that, as not-for-profit organizations, they
violated laws prohibiting the practice of law by corporations.
Employing reasoning that Ellmann finds significant in an analysis of
thirdparty influence, some courts upheld the lawfulness of the
organizations on the condition that the individual lawyer retained independent
professional judgment on behalf of the client.74
a lawyer unless that person is in a position to exert strong economic,
political, or social pressures upon the lawyer.
Model Code of Professional Responsibility EC 5-21 (1981). Sack concludes that
"[tihe legislation does subject the legal services lawyer to this kind of pressure."
Pearce et al., Ethical Issues, supranote 61, at 370 (panel discussion comments of
Emily J. Sack).
71. See Pearce et al., Ethical Issues, supra note 61, at 371 (panel discussion
comments of Stephen Ellmann).
72. Model Rules of Professional Conduct Rule 5.4(c) (1998).
73. Id. Rule 1.8(f)(1)-(2). Ellmann also identifies similar principles in the Model
Code of Professional Responsibility and in the ABA Canons of Professional Ethics.
See Pearce et al., EthicalIssues,supra note 61, at 371-72 & nn.61-62 (panel discussion
comments of Stephen Ellmann) (citing Model Code of Professional Responsibility
DR 5-107(B) (1983) and Model Code of Professional Ethics Canon 35 (1970)); see
also Martha A. Hausman, Note, The Ethics of Lawyering in tie Public Interest: Using
Client and Lawyer Autonomy as a Guidepost, 4 Geo. J. Legal Ethics 383, 387-88
(1990) (noting ethical problems raised by the influence of legal organizations serving
as third-party payors, and citing the warning of Model Code EC 5-23 that -[al 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
For a discussion of the ethical conflicts arising in class actions aimed at structural
reforms in public and private institutions, see Deborah L. Rhode, Class Conflicts in
Class Actions, 34 Stan. L. Rev. 1183 (1982).
74. See Pearce et al., EthicalIssues, supra note 61, at 372 & n.63 (panel discussion
comments of Stephen Ellmann) (citing Azzarello v. Legal Aid Soc'y, 185 N.E.2d 566,
570 (Ohio Ct. App. 1962), and Touchy v. Houston Legal Found., 432 S.W2d 690, 695
(Tex. 1968)). Ellmann also cites two cases in which the New Jersey Supreme Court
ruled in favor of legal services corporations, finding that although they were engaged
in the practice of law, lawyers retained independent professional judgment. Id. at 372
n.63 (panel discussion comments of Stephen Ellmann) (citing In re 1115 Legal Serv.
Ellmann infers from these courts' reasoning that if the corporations
had placed constraints on lawyers' professional judgment, they would
have been engaged in the unlawful practice of law. Similarly, he
argues, an organization's compliance with the federal legislation to a
degree that interferes with lawyers' professional judgment may
constitute the same unlawful activity.75 Although the issue of
corporate practice of law may currently have limited relevance,76 Ellmann
finds that these cases emphasize the "importance of the principle that
lawyers' judgment must not be constrained by third parties, even
those who pay the bills. 77
On a more technical level, Ellmann provides a nuanced analysis of
the applicability of Model Rule 5.4(c) to the actions of the LSC. He
raises and rejects as "blink[ing] reality" the notion that the LSC does
not violate the Rule because the limitations on individual legal
services lawyers are enforced by their supervisors, who are also lawyers.78
Instead, Ellmann sees the supervisory lawyer not as a "payer" or an
"employer" but as an employee of the LSC, which determines the
restrictions to which the supervisors must adhere.7 9
Therefore, the fundamental question for Ellmann is whether to
characterize the LSC limitations as restrictions on a lawyer's
professional judgment on behalf of clients. To answer this question,
Ellmann distinguishes different categories of restrictions. He argues
that restrictions on which clients to serve or not to serve does not
restrict a lawyer's professional judgment in serving a client. In
contrast, according to Ellmann, restrictions on what services can be
performed on a client's behalf do serve to limit a lawyer's independent
professional judgment.8 0 Ellmann includes in this category a wide
variety of restrictions, broadly including, constraints that prevent a
lawCare, 541 A.2d 673 (N.J. 1988), and In re Education Law Ctr., Inc., 429 A.2d 1051
75. See id. at 372 (panel discussion comments of Stephen Ellmann).
76. Ellmann notes that New York no longer prohibits the corporate practice of
law, and suggests that "in an era of 'professional corporations' probably few states
do." Id. at 372 n.64 (panel discussion comments of Stephen Ellman).
For an early discussion of the problems of unauthorized practice of law by a legal
services corporation, see Michael B. Roche, Note, Ethical Problems Raised by the
Neighborhood Law Office, 41 Notre Dame Law. 961, 963-69 (1966).
77. Pearce et al., EthicalIssues, supra note 61, at 372-73 (panel discussion
comments of Stephen Ellmann).
78. Id. at 373 (panel discussion comments of Stephen Ellmann). This theory
would rely on Model Rule 5.2(b), which allows lawyers to not only follow their
supervisors' directions, but to "act[ ] in accordance with a supervisory lawyer's reasonable
resolution of an arguable question of professional duty." Model Rules of Professional
Conduct Rule 5.2(b) (1998).
79. Pearce et al., EthicalIssues, supra note 61, at 373 (panel discussion comments
of Stephen Ellmann).
80. See id. at 374 (panel discussion comments of Stephen Ellmann).
yer from considering possible methods of representation."' This is in
addition to specific restrictions which prohibit, for example,
challenging welfare reform policy, bringing class actions, initiating legislative
advocacy, or seeking attorneys' fees. 2 Moreover, the next step of
Ellmann's analysis requires lawyers to leave organizations that violate
Despite this close adherence to the letter of Rule 5.4(c) and DR
5107(B), Ellmann acknowledges a number of contexts in which third
parties are permitted to exercise substantial control over the conduct
of lawyers toward their clients.81 Ellmann suggests that these
exceptions, in part, gave rise to the language of the 1996 Proposed Fimal
Draft of Section 215(2) of the Restatement of the Law Governing
Lawyers, which stated that:
A lawyer's professional conduct on behalf of a client may be
directed by someone other than the client when: (a) the direction is
reasonable in scope and character, such as by reflecting obligations
borne by the person directing the lawyer; and (b) the client consents
to the direction under the limitations and conditions provided in
81. See id (panel discussion comments of Stephen Ellmann). In fact, Ellmann
notes that each of these specific restrictions was imposed, in some measure. See id. at
374 n.69 (citing Alan W. Houseman, Legal Representationand Advocacy Under the
Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 30
Clearinghouse Rev. 932 (1997)). For a further discussion of ethical issues related to
attorneys' fees in public interest litigation, see Arthur B. LaFrance, Public Interest
Litigation,Attorneys' Fees, and Attorneys' Ethics, 16 Envtl. L_ 335 (1986).
82. See Pearce et al., Ethical Issues, supra note 61, at 374 (panel discussion
comments of Stephen Ellmann).
83. See id. at 375 (panel discussion comments of Stephen Ellmann). In addition,
according to Ellmann, under both Rule 5A(c) and DR 5-107(B), a client may not
consent to a lawyer's departure from those ethical obligations. See id. at 377 (panel
discussion comments of Stephen Ellmann). Thus, "[clients... are not permitted to
allow third parties to regulate their lawyer's professional judgment." Id. (panel
discussion comments of Stephen Ellmann). Ellmann does acknowledge, however, that
apparently clients may consent to third-party limitations prior to the commencement of
the representation. See id. (panel discussion comments of Stephen Ellmann).
Ellmann finds unconvincing Professor Stephen Gillers' scheme for thereby permitting
lawyers to remain in these organizations by re-starting the attorney-client relationship
and including the new restrictions as part of the new relationship. See id. (panel
discussion comments of Stephen Ellmann).
84. These include: public interest litigation, in which "advocacy organizations
frequently determine that they will only press cases if the clients agree to seek particular
objectives"; insurance defense, in which "insurers routinely regulate at least some
aspects of the decision-making of their insured's counsel"; and poverty law practice, in
which "budget limitations have generated caseloads that must require lawyers to
make careful choices about what resources to expend on which cases." Id. at 379
(panel discussion comments of Stephen Ellmann). See generally Paul R. Tremblay,
Toward a Community-Based Ethicfor Legal Services Practice,37 UCLA L Rev. 1101
(1990) (discussing how legal services lawyers allocate their limited time and
85. Restatement (Third) of the Law Governing Lawyers § 215(2) (Proposed Final
Draft No. 1, 1996). Ellmann further cites a revised version of Section 215, which does
Ellmann expresses concern that the application of the
Restatement's acceptance of third-party influence that is "reasonable in scope
and character" might "broaden the current departures from the rule,"
to such an extent that the result may be "the elimination of the rule
itself."8' 6 Ellmann's own view, however, is that the LSC restrictions do
not qualify as "reasonable in scope and character," as required by the
Restatement. 7 Ellmann supports this conclusion on several grounds.
He argues that the restrictions "are uniform and across-the-board,
and hence less likely to be reasonable in the circumstances of
individual cases." 8 In addition, Ellmann notes that the restrictions "block
lawyers from even considering the prohibited steps in particular cases,
and this across-the-board restriction on professional judgment
undercuts lawyer representation in any case where competent practice
would require considerationof these steps." 9 Moreover, Ellmann
observes that the LSC restrictions are imposed by the federal
government, even though "the United States is likely to be the adversary in
many of the cases whose handling it is now regulating, and the funder
and ally of the adversaries (state and local governments) in many
others."9 Finally, Ellmann worries that clients' interests will not be
properly protected by "legislators who have no ethical obligation to
put these citizens (and non-citizens) first-to say nothing of those
legislators' politics."9 1
In short, Ellmann states that "the preservation of an independent
bar is threatened when the professional judgment of particular groups
of unpopular lawyers-such as those representing the poor-is
subnot change the text of the section but does revise the commentary, to "strongly
support[ ] the conclusion that the LSC restrictions, if they are inconsistent with Section
215, are inconsistent with the law of lawyering, and can be validated, if at all, only by
reference to other law that displaces the rules of the Restatement." Pearce et al.,
Ethical Issues, supra note 61, at 380 & n.85 (panel discussion comments of Stephen
Ellmann) (citing Restatement (Third) of the Law Governing Lawyers § 215 cmt. g
(Proposed Final Draft No. 2, 1998)).
86. Pearce et al., EthicalIssues, supra note 61, at 381 (panel discussion comments
of Stephen Ellmann).
87. Id. at 382 (panel discussion comments of Stephen Ellmann).
88. Id. (panel discussion comments of Stephen Ellmann).
89. Id. (panel discussion comments of Stephen Ellmann).
90. Id. at 383 (panel discussion comments of Stephen Ellmann). More than 30
years before the conference at Fordham, Edward Sparer wrote of the political
pressures facing lawyers, paid with government funds, who represent low-income clients
against the government. See Edward V. Sparer, The Role of the Welfare Client's
Lawyer, 12 UCLA L. Rev. 361, 374-80 (1965).
91. Pearce et al., EthicalIssues, supra note 61, at 384 n.97 (panel discussion
comments of Stephen Ellmann) (referring to "the explicitly political flavor of
congressional opposition to the work of the Legal Services Corporation"); see also 142 Cong.
Rec. H8149, H8176-88 (daily ed. July 23, 1996) (debating the amount of funding
allocated to the Legal Services Corporation).
jected to restrictions imposed as a result of political decisions by the
state. ' 92 He concludes that
at least a substantial number of legal services lawyers are in breach
of their ethical obligations by virtue of staying at jobs with
LSCfunded entities, and that perhaps a number of those entities are in
breach of their statutory program obligations as well-none of
which is any good for the clients of legal services at all. 93
In addition to placing direct restrictions on legal services lawyers,
third parties may exert an apparently less direct-yet potentially
profound-influence on the conduct of these attorneys through the
means of resource allocation. An analysis of these issues may be
presented through a brief look at the respective roles of Congress, the
LSC, and the attorney in resource allocation.
Alan Houseman has provided a detailed discussion of many of the
ethical issues relating to congressional authority over LSC funding. 94
In a law review article, Professor Marshall Breger provides a
conceptual framework for analyzing issues of resource allocation for
organizations providing legal services to clients with limited needs. 9
Breger's discussion highlights some of the ethical considerations that
arise as a result of the reality that, by the very nature of the enterprise,
funding for legal services lawyers is provided by a third party-largely
the government-and not by the client,96 and that significant
prioritysetting policy is established by the LSC, rather than by local
Through the Legal Services Corporation Act of 1974, which
established the LSC, Congress, which funds the LSC, placed numerous
restrictions on the activities of legal services attorneys, including the
prohibition of representation in criminal, school desegregation,
selective service, and nontherapeutic abortion cases, in addition to a ban,
later repealed, on representing juveniles.98 Later legislation excluded
representation of illegal aliens and cases involving homosexuality or
gay rights.9 9 Conversely, members of Congress attempted to require
the allocation of funds for specific poverty groups. 100
Such restrictions by Congress might be criticized as unethical,
reflecting the improper influence of a third party on the representation
of legal services lawyers toward the clients. Breger finds no merit to
such criticism, arguing that "[m]any attorneys limit their practice to
particular areas" and that "[n]o group of attorneys is required to
provide a full panoply of service-one's professional duty is to do
competently whatever job one chooses to take on." '' Breger acknowledges,
however, that "when pursuing a discrete legal claim, restrictions on
the manner or object of discovery proceedings or the nature of the
remedy pursued would be improper." ' 2
Breger sees a closer question regarding the role of the LSC in
resource allocation. By retaining broad authority over certain aspects of
resource allocation, the LSC limits the autonomy of individual
attorneys and thus affects the service provided to individual clients,
through decisions resulting from concerns other than the interests of
the individual clients. In an important 1978 law review article,
Professor Gary Bellow and Jeanne Kettleson provide an analytical approach
to the ethical implications of corporate board control over resource
allocation.0 3 They set forth and analyze various ways in which
corporate boards may potentially influence the work of legal services
lawyers. With respect to intake and service, for example, they note that
one board of directors might delegate all such decisions to the staff,
while some boards "have been considerably more active in setting
priorities, even to the point of case-by-case approval and review."'" Still
a third variation might provide for the resolution of such decisions
through an outside group. 10 5
98. See id. at 305 (citing provisions of the Legal Services Corporation Act of 1974,
§ 1001, 42 U.S.C. § 2996 (1976)). Congress placed further restrictions on the advocacy
functions of legal services lawyers in behalf of their clients, through broad
prohibitions on lobbying activities. See id. at 308-09 (footnotes omitted).
99. See id. at 305-06 (footnotes omitted).
100. These attempts resulted in the compromise language requiring consideration
of "the relative needs of eligible clients for... assistance ... including particularly the
needs for service on the part of significant segments of the population of eligible
clients with special difficulties of access to legal services or special legal problems
(including elderly and handicapped individuals)." Id. at 307 (quoting 42 U.S.C.
§ 2996f(a)(2)(C)(i) (Supp. III 1979)).
101. Id. at 311.
103. See Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting
Scarcity and Fairnessin Public InterestPractice,58 B.U. L. Rev. 337, 346 (1978).
104. Id. at 344.
105. See id.
Bellow and Kettleson also note that the corporate board may
influence decisions relating to the type of service offered. , They observe
that legal services attorneys may potentially engage in a variety of
activities, which may or may not include representation of individual
clients. °7 Instead, these lawyers "might represent only the tenant or
community groups themselves, or deal directly with the public officials
involved, without any clients at all." ' In addition, they "might also
draft and lobby legislative proposals, or even attempt to sue on their
own behalf in pursuit of reform goals."'1 9 Thus, when legal services
lawyers offer their services, "[a]ll of these choices raise questions
concerning whether goals of this nature can properly serve as the basis for
accepting or rejecting clients and, if so, who may decide what specific
goals to pursue.""10
Breger identifies as areas of LSC control: "(1) control over the
geographical placement of programs and their funding levels; (2) control
over the boundaries of client eligibility; [and] (3) control over the
priority-setting process.""' Priority setting may pose a particular
concern because, despite the emergence of legal services staffs as
"increasingly autonomous... [and] free to set their own priorities," '
Breger observes that "[t]he Corporation monitors the actions of the
local programs.""' 3 Indeed, he finds that "[b]y means of informal
communication and monitoring by regional offices, the LSC sensitizes
local programs to the outer limits of their autonomy in the priority
setting area,""' 4 to such an extent that Breger refers to a "myth of
local autonomy."' '
The ABA Committee on Ethics and Professional Responsibility has
addressed the ethical concerns raised by priority setting, finding the
process acceptable "to the extent necessary to allocate [resources]
fairly and reasonably... and establish proper priorities in the interest
of making maximum legal services available.""' In the opinion, the
Committee suggested that "[ilt is possible that, in order to achieve the
goal of maximizing legal services, services to individuals may be
limited in order to use the programs' resources to accomplish law reform
in connection with particular legal subject matter."" 7 However, to
allay concerns of improper influence by the LSC, the opinion added:
The subject matter priorities must be based on a consideration of
the needs of the client community and the resources available to the
program. They may not be based on considerations such as the
identity of the prospective adverse parties or the nature of the
remedy ("class action") sought to be employed. 118
Moreover, in another opinion, the Committee found priority setting
not only consistent with, but apparently a necessary element of, the
ethical obligations of a public services lawyer. The opinion criticized
"the refusal of the directors of a legal services office to institute a
system of priorities or waiting lists" because such an approach could
result in ethical violations by staff attorneys because of "'inadequate
preparation' or 'neglect' by a staff lawyer ...."119
Finally, Breger addresses a third factor related to the role and
influence of third parties on legal services lawyers. Breger discusses the
professional and ethical implications of the role of the individual legal
services attorney in allocating resources; irrespective of congressional
and LSC regulations, the line attorney ultimately serves as the
"gatekeeper" of the system. 120 As Breger observes, attorneys exercise the
professional autonomy that they find fundamental to their vocation.12
Indeed, Breger cites some of the early scholarly literature
emphasizing the need for lawyers, as professionals, to determine their own
119. ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1359
Nevertheless, Breger, in another article that discusses conflicts of interest, raises the
concern that a board member of a legal services corporation may represent an interest
adverse to a client of the legal aid office, potentially creating "a significant appearance
of impropriety." Marshall J. Breger, Disqualificationfor Conflicts of Interest and the
Legal Aid Attorney, 62 B.U. L. Rev. 1115, 1133 (1982). According to Breger, "[t]he
board's authority over staff attorneys' salaries and questions of promotion could
reasonably raise the inference of subtle influence by members of the board on a staff
attorney's action." Id. (footnote omitted). In fact, Breger notes that "[sleveral state
bar associations also have been wary of the appearance of impropriety when a board
member represents interests adverse to a legal aid staff attorney." Id. at 1133 n.79. He
cites one such committee, which found that "[c]ertainly, in the minds of the
organization's indigent clientele, the [legal aid] staff could not reasonably be deemed free of
compromising influences if the lawyer-members of its board were to accept retainers
from relatively affluent adverse parties." Id. (quoting Committee on Professional
Ethics, New York State Bar Ass'n, Op. 489 (1978)).
Breger, though, disagrees with the view that requires the resignation of board
members whose interests conflict with those of legal aid clients. See id. at 1132-33. Breger
argues that such an approach "severely restricts the ability of members of the private
sector to participate on local boards" because "conflicts will inevitably occur." Id. at
1134. Moreover, he cautions, "[t]he impact of this requirement is especially acute in
rural areas where there are generally fewer attorneys," while "arge law firms may
also be discouraged from contributing money to legal aid work for fear of accusations
...I.d. (footnote omitted). Therefore, due to the "heavy price" exacted on local
legal aid offices, Breger concludes that "[aippearances should not be enough to
require the disqualification of board members when little likelihood exists that actual
conflicts will occur." Id.
120. See Breger, Legal Aid, supranote 2, at 321.
121. See id.
ents, as part of the principle of "fidelity to self."q' Additionally,
Breger notes that the Model Code of Professional Responsibility
protects attorney autonomy in the selection of clientsY2 Unlike the
"British taxi-rank rule," which require acceptance of any client who
fits within the attorney's workload and who can pay the fee, the
122. Id; see, e.g., Edward A. Dauer & Arthur Allen Leff, Correspondence, The
Lawyer as Friend,86 Yale LJ. 573 (1977) (discussing the importance of attorneys'
individual autonomy when choosing clients); John J. Flynn, ProfessionalEthics and
the Lawyer's Duty to Self, 1976 Wash. U. L.Q. 429 (asserting that amoral la yer
conduct is a greater moral hazard than immoral conduct); Charles Fried, The Lawyer as
Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale Li. 1060
(1976) (explaining that lawyers must be able to choose their own clients because the
lawyer-client relationship is inherently personal); William H. Simon, Tile Ideology of
Advocacy: ProceduralJustice and ProfessionalEthics, 1978 Wis. L. Rev. 30 (analyzing
the "Ideology of Advocacy" as a framework to discuss lawyers' professional ethics).
It is interesting to note that since the appearance of Breger's article, a number of
scholars and practitioners who are concerned about legal ethics have found lacking
the common treatment and conception of professionalism in the practice of law. See,
e.g., Commission on Professionalism, American Bar Ass'n, In the Spirit of Public
Service: A Blueprint for the Rekindling of Lawyer Professionalism 12-15 (1986)
(suggesting various solutions to the current lack of lawyer professionalism);
Professionalism Comm., American Bar Ass'n, Teaching and Learning Professionalism
2-5, 11-34 (1996) (discussing the decline in lawyer professionalism and recommending
alternatives to increase the level of professionalism); Mary Ann Glendon, A Nation
Under Lawyers: How the Crisis in the Legal Profession is Transforming American
Society 60-84 (1994) (explaining how professionalism is hampered by lawyers'
conflicting duties); Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal
Profession 11-14, 165-352 (1993) (describing the ideal of the lawyer-statesman and the
various forces attacking that ideal that have caused its decline); Sol M. Linowitz &
Martin Mayer, The Betrayed Profession: Lawyers at the End of the Twentieth
Century 185-206 (1994) (offering suggestions to rekindle pride and restore respect in the
legal profession); Edward D. Re, The Causes of PopularDissatisfactionwith tie Legal
Profession, 68 St. John's L. Rev. 85, 86-90, 104-07 (1994) (emphasizing the role of
lawyers in the administration of justice and how the public perceives them in that
Indeed, it is somewhat ironic that, according to some scholars, current attempts to
improve the ethical culture of lawyering may advocate alternatives to the professional
model. As Professor Russell Pearce has suggested, "[elven the prevailing notion of
professional role ... faces challenge or revision as part of the solution to the current
crisis of professionalism." Russell G. Pearce, Foreword: The Religious Lawyering
Movement An Emerging Force in Legal Ethics and Professionalism, 66 Fordham L
Rev. 1075, 1082 (1998) [hereinafter Pearce, Religious Lawyering Movement]; see also
Russell G. Pearce, Tire ProfessionalismParadigmShift: Why DiscardingProfessional
Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L Rev. 1229,
1237-40 (1996) (discussing how the legal profession alone was permitted to regulate
itself). One response to the challenge has been the emergence of a -religious
lawyering movement." See Pearce, Religious Lawyering Movement, supra, at 1082.
For further discussion, see Symposium, Lawyering and Personal Values, 38 Cath.
Law. 145 (1998); Symposium, The Relevance of Religion to a Lawver's Work: An
Interfaith Conference, 66 Fordham L. Rev. 1075 (1998); Symposium, Faith and the
Law, 27 Tex. Tech L. Rev. 911 (1996). See also Bruce A. Green, The Role of Personal
Values in ProfessionalDecisionmaking,11 Geo. J. Legal Ethics 19 passim (1997)
(exploring the extent to which lawyers may act in accordance with personal moral and
religious beliefs and still be within the realm of professional ethics).
123. See Breger, Legal Aid, supra note 2, at 322.
American124Code allows for broader discretion on the part of the
Nevertheless, Breger finds the application of the American ideal of
attorney autonomy less than satisfying in the context of legal services
lawyers. In this situation, such an approach "minimizes the role of the
client as a participant in determining how program funds should be
spent," while "vest[ing] the legal aid lawyer with expert status in
determining a community's legal agenda."" 2 Moreover, Breger writes,
the legal services attorney, as a salaried employee, "has agreed to
work for a particular employer, thus relinquishing his freedom to
select his own clients. ' 126 Working under the constraints of the policies
of both Congress and the LSC, the attorney "operates within a
bureaucratic matrix that limits ... professional autonomy. "127
Bar associations, scholars, and courts have addressed the growing
issue of the influence of third parties on the relationship between legal
services lawyers and their clients. Some members of these groups
have voiced strong objections to the influence that corporate boards
and other organizations exert on the work of legal services lawyers,
while others do not express the same level of concern. In any event, it
can be hoped that participants in these discussions will sense the
importance of carrying forward the effort by synthesizing the
contributions of all those involved on practical, theoretical, and philosophical
124. See id.
126. Id. at 326.
127. Id. For a different view, offered in 1965, see Sparer, supra note 90. Sparer
acknowledges the reality that the lawyer's ethical duties "[do] not and cannot serve to
prevent a decision ... by his organization ... prohibiting him from establishing a
lawyer-client relationship on certain matters or in relation to certain agencies." Id. at
380. According to Sparer, however, "[the] government, if it is truly interested in
making counsel available for the poor with whom it deals, must establish its own ethic: it
must make lawyers available with no conditions or limitations other than those
imposed by the lawyers' own legal judgment and sense of duty." Id.
8. Id (alteration in original).
9. See id.
10. Id .
11. See id.
12. Id . (quoting Miss . Code Ann. § 73 -3- 37 ( 4 ) ( 1972 )).
13. See id; see also Model Code of Professional Responsibility DR 4-101(A) ( 1981 ) (discussing the preservation of client confidences).
14. Model Code of Professional Responsibility DR 4-101(A) ( 1981 ).
15. Ethics Comm ., Mississippi State Bar Ass'n, Op . 101 ( 1985 ) (footnote omitted) (citing Nassau County Bar Ass'n, Ethics Op . 82 - 5 ( 1984 )).
16. See ABA Comm. on Ethics and Professional Responsibility , Formal Op. 334 ( 1974 ).
17. See ABA Comm. on Ethics and Professional Responsibility , Informal Op. 1287 ( 1974 ) (stating that client names, addresses, and phone numbers qualified as secret, due to the embarrassment clients might feel if others knew they were served by a legal services office).
26. ABA Comm. on Ethics and Professional Responsibility , Formal Op. 393 .
27. Id .
29. Id . According to the Committee, this scenario is consistent with Model Code of Professional Responsibility EC 4-3, which states: Unless the client otherwise directs, it is not improper for a lawyer to give limited information from his ifies to an outside agency necessary for statistical, bookkeeping, accounting, data processing, banking, printing, or other legitimate purposes, provided he exercises due care in the selection of the agency and warns the agency that the information must be kept confidential . Model Code of Professional Responsibility EC 4-3 ( 1981 ).
30. See Committee on Prof'l and Judicial Ethics, Association of the Bar of the City of New York , Formal Op. 1997 - 2 ( 1997 ).
31. Id . (alterations in original).
32. Id . (citing Model Code of Professional Responsibility Canon 4 ("A Lawyer Should Preserve the Confidences and Secrets of a Client"); Model Code of Professional Responsibility Canon 5 ("A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client"); Model Code of Professional Responsibility Canon 6 ("A Lawyer Should Represent a Client Competently"); and Model Code of Professional Responsibility Canon 7 ("A Lawyer Should Represent a Client Zealously Within the Bounds of the Law" )).
44. See id.
45. Id (citing Committee on Prof'l and Judicial Ethics, Association of the Bar of the City of New York , Formal Op. 1987 - 7 ).
48. See Submission of tie Association of American Law Schools to tie Supreme Court of the State of Louisiana Concerningthe Review of the Supreme Court'sStudent PracticeRule, 4 Clinical L . Rev . 539 , 540 ( 1998 ) [hereinafter Submission] .
49. The AALS argued that the proposal posed a number of problems affecting the effectiveness and integrity of the clinical program . See id. at 558 . The AALS found that, in addition to the issue of confidentiality, the proposal implicated other ethical duties. See id. For example, the AALS suggested that the proposed requirement of "balanced representation of government, small business, and environmental interests" may lead to a violation of the basic duty to "provide competent representation to a client" by mandating that a clinic function in areas outside its expertise . Ii. at 563 (citing La. Rules of Professional Conduct Rule 1.1) . Similarly, the AALS expressed concern that the requirements could lead to a conflict of interest, violating the duty not to represent a client "if the representation ... will be directly adverse to another client." Id. (citing La. Rules of Professional Conduct Rule 1.7(a)).
The AALS also criticized the proposal for the more direct effects it would have on legal education . See id.at 564 . For example, the AALS asserted that the proposed restrictions would hinder Louisiana law schools' ability to provide appropriate training and experience, which would in turn be reflected in the reputation of the schools and of the students participating in the program . See id. at 551 . Moreover, according to the AALS, the proposed restrictions on the conduct of law school clinics -constitute[d] a direct intrusion into the academic freedom of law faculty and law students in
57. Id . at 567.
58. See H.R. Conf . Rep. 104 - 159 , at 137- 38 ( 1995 ).
59. See 142 Cong. Rec. H8149, H8185 (daily ed. July 23 , 1996 ) (statement of Rep . Robert Dornman) ; see also Steven Epstein et al ., Foreword , Symposium, Tile Future of Legal Services: Legal and EthicalImplications of the LSC Restrictions,25 Fordham Urb . L.J. 279 , 281 ( 1998 ) (addressing the ethical obligations of lawyers in spite of the restrictions on LSC funding); Alan W . Houseman, Address: Interpretation of LSC Restrictions ,25 Fordham Urb . L.J. 285 , 287 ( 1998 ) [hereinafter Houseman, Interpretations] (discussing the funding and structural decisions made by the 104th Congress regarding legal services). For an extensive discussion of the ethical implications of the LSC restrictions , see Alan W. Houseman, Restrictions by Funders and the Ethical Practiceof Law, 67 Fordham L . Rev . 2187 ( 1999 ).
60. See supra note 2 and accompanying text .
61. Russell G. Pearce et al., Ethical Issues Panel , 25 Fordham Urb . L. 357 , 360 ( 1998 ) [hereinafter Pearce et al ., Ethical Issues ] (panel discussion comments of Helaine Barnett) .
62. Id . (panel discussion comments of Helaine Barnett) .
63. ABA Comm. on Ethics and Professional Responsibility , Formal Op. 399 ( 1996 ).
64. See Pearce et al., EthicalIssues, supra note 61 , at 366 ( panel discussion comments of Helaine Barnett) .
65. See Symposium , The Future of Legal Services: Legal and EthicalImplications of the LSC Restrictions , 25 Fordham Urb . L.J. 279 ( 1998 ).
66. Ms . Barnett was introduced as Attorney-in-Charge of the Civil Division of the Legal Aid Society and former Chair of the ABA Ethics Committee .
67. Pearce et al., EthicalIssues , supranote 61 , at 363 ( panel discussion comments of Helaine Barnett) (citing ABA Comm . On Ethics and Professional Responsibility , Formal Op. 399 ( 1996 )).
68. Id . (panel discussion comments of Helaine Barnett) (citing ABA Comm. on Ethics and Professional Responsibility , Formal Op. 399 ( 1996 )).
69. See id. at 363-64 ( panel discussion comments of Helaine Barnett) (citing Model Rules of Professional Conduct Rule 1 .16 ( 1997 ) ) . Barnett also discussed the related questions of the legal services attorney's duties to prepare, plan for the reduction of services, and fulfill ethical obligations to remaining clients . See id. at 364-65 (panel discussion comments of Helaine Barnett).
70. See id. at 361 (panel discussion comments of Helaine Barnett); id . at 367-69 ( panel discussion comments of Emily J . Sack). Sack cites the Code's EC 5-21 which, expanding on Model Rule 5.4(c), states that: 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
92. Pearce et al., Ethical Issues , supranote 61 , at 384 ( panel discussion comments of Stephen Ellmann) .
93. Id . at 385 (panel discussion comments of Stephen Ellmann) . Though it technically does not fund legal services organizations, the Internal Revenue Service wields a strong influence on these groups, leading to potential conflicts of interest, by granting them tax-exempt status as public charities under I .R.C. § 501(c)(3). See Oliver A. Houck, With Charity For All, 93 Yale LJ . 1415 , 1425 - 30 ( 1984 ); Nicole T. Chapin, Note, Regulation of Public InterestLaw Firmsby the IRS and tie Bar Makingit Hard to Serve the Public Good, 7 Geo . J. Legal Ethics 437 , 438 ( 1993 ).
94. See generally Houseman, Interpretation,supra note 59, at 289-93 (discussing the ethical dilemmas legal aid attorney's face due to the 1996 Congressional restrictions ).
95. Breger , Legal Aid, supra note 2 , at 283.
96. See id. at 303-13.
97. See hi. at 313-20.