Proposed new rules would make it unethical for lawyers to participate in court-appointed dependency cases.

As a court-appointed dependency lawyer in Philadelphia, I have become familiar with the American Bar Association’s proposed model act governing the representation of children in abuse, neglect and dependency proceedings. If that is adopted, will it be ethical for lawyers to continue to participate in court-appointed dependency matters?

Lawyers in Philadelphia who do indigent dependency cases are perhaps the most underpaid group of workers in America. These lawyers have a tremendous responsibility for the lives of children and their parents, yet are paid by a system at a rate that is ridiculous. The system pays only $500 the first year, $300 the second year and $60 for each year after that. The system has no regard for how many hearings or meetings the lawyer has to attend.

The mechanism that has kept the system in place over the years is that when lawyers come into the system, they get a large number of cases up front and, therefore, initially have some money with the $500 fee. Many lawyers, after the second or third year, withdraw from the representation because they can no longer economically afford to do so. The cycle then repeats itself. But this system does little for protecting the children’s interests.

Further, in dependency court in Philadelphia, unlike in years past, the court is very strict, and if the lawyer is not there, the lawyer is held in contempt and fined or removed from the list. There is no appreciation of what the lawyers do and, in fact, many dependency judges think the lawyers are well paid. That is a gross myth.

As a result, unless the lawyer is independently wealthy or living in a small room with no expenses, it is almost physically impossible for the lawyer to handle these cases and go out and meet with children, go to investigate and meet with agencies, visit parents in prison, etc. There are a dedicated few who continue to try to do so. Their dedication is not appreciated.

The American Bar Association’s preparation of the model act for representation of children who are abused, neglected dependents, if adopted, would make it absolutely unethical for any lawyer to continue to do this in Philadelphia other than those who are independently wealthy or those who are doing their penance for life after death.

These rules have strict requirements and duties and responsibilities for a lawyer. These rules could have a serious impact if a lawyer doesn’t comply. A glance at the rules also notes that the child’s lawyer appointed pursuant to this act is entitled to reasonable and timely fees and expenses at an amount set by the court or a state agency to be paid from authorized public funds.

Of course, that is a joke in Philadelphia, because there are no reasonable fees paid. If this new rule went into effect, it would be impossible for a lawyer to do the duties. Even now it is impossible for most of these lawyers. Of course, this is another crisis in the world of representation and ethics. The court system pays as little as possible (the rates have been the same for 15 or 20 years) and yet the court system expects lawyers to provide top-notch services and will hold the lawyers in contempt if for some reason they are not in court. As a result, lawyers who handle dependency work can’t do anything else. Heaven help the dependency lawyer if he or she has a hearing at the Criminal Justice Center.

These new proposed rules, which are in the pipeline and which could be adopted, are a call now for Philadelphia and other court systems throughout Pennsylvania to reconsider how they fund dependency cases.

Other systems pay their dependency court-appointed lawyers a fixed fee each month without paying overhead. That system would also have similar problems. But the bottom line is court systems, through model rules or others that may be adopted, cannot put greater burdens on a lawyer without adequate compensation.

Right now, the compensation for dependency cases violates the consent orders of the 1970s. Further, lawyers who represent children or parents under this system are really acting unethically. They are acting unethically because the fees are too low and they can’t do their job appropriately.

At some point, any system that pays a flat fee with no regard to how much responsibility and how many hearings there are is not feasible. Lawyers who participate in that system have a conflict between what is good for them and what is good for their clients.

Some people suggest that all lawyers have a pro bono responsibility, which they do, but in this modern age, because of overwhelming poverty, there are now lawyers who specialize in indigent type of cases, such as dependency work.

Lawyers who do that have to take on a large number of cases and cannot survive at these kind of rates.

But the court system has been deaf in terms of trying to resolve these issues. It is a disgrace that the dependency reimbursement rate is so minimal. Of course, it is always convenient to blame the Department of Human Services for the next child that is beaten to death. In reality, the problem is that there is not enough money to allow lawyers to do their job.

The system has to change now and lawyers who continue to participate should be on notice that their conduct is unethical and someday they will face the consequences in terms of a civil suit and/or maybe even criminal liability if one of the children they have a responsibility for is injured when they didn’t fulfill all of their responsibilities. The fact that they couldn’t because of the unethical system will not be a defense. It is sad but true. But ethical conduct demands lawyers actually work to change the compensation system.

A lawyer may not give privileged information 
to an insurance company performing an audit 
without the client’s consent.

I am an attorney who has worked for an insurance company in representing insureds. An audit is being done on my billing practices and they want to review the file. Can they do so?

The answer is very simple: The insurance company that hires a lawyer to represent an insured is like any third-party payer of legal fees.

Under Rule of Professional Conduct 1.8(f), the following is stated:

“A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) The client gives informed consent; (2) There is no interference with the lawyer’s independence of professional judgment or with the client/lawyer relationship; and (3) Information relating to the representation of a client is protected as required by Rule 1.6.”

Therefore, any lawyer who is representing insureds, whether he or she is a private lawyer hired by an insurance company or the captive law firm that is representing insureds, has to comply with Rule 1.8(f).

The client has to give informed consent when the insurance company is paying for the representation. Of particular importance is the fact that there can be no interference with the attorney-client relationship and no breach of confidentiality.

Comment 11 to Rule 1.8(f) discusses this in more detail. The comment notes that third-party payers can be relatives, friends, insurance companies, etc. The comment notes:

“Because third-party payers frequently have interests that differ from those of the client, including interest in minimizing the amount spent on the representation and then learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representation unless the lawyer determines that there will be no interference with the lawyer’s independent professional judgment and there is informed consent from the client.”

The informed consent from the client doesn’t mean the insurance company. It means the person the lawyer is actually representing. Therefore, an insurance company that wants to audit the lawyer’s bills and wants information can’t have it. It is confidential information, unless the client consents.

The matter gets even dicier if the lawyer is representing the client and finds out he or she is not eligible for representation for whatever reason. This could happen in some scenarios like motor vehicle accidents, or in court-appointed cases where a court system or commissioner’s office appoints lawyers for representation. The lawyer is appointed to represent a client and discovers the client makes too much money. The lawyer can’t reveal this to the appointment system.

Some systems have the lawyers evaluate and then supposedly report back and state whether or not the person is eligible for the public defender or court-appointed representation. That can’t happen.

Once a person goes to the public defender or their office for representation, he or she is the client. If the lawyer or paralegal discovers during the initial interview that the client is not eligible, they can’t report that back. It is within the privilege.

Too often this has been honored in the breach. Some court-appointed lawyers and public defender’s offices have an agreement with the county government where the defender’s office does the intake information. But that information is now privileged and can’t be reported back.

Law is still a profession and the basic ethical rules should apply. There is an old Pennsylvania Bar Association’s legal ethics committee opinion entitled 96-996 that also notes the duty for protecting the confidentiality of the client against these third-party payers has no exception. There is no exception to waive the privilege when someone else is paying the legal fees.

Every lawyer representing a client under those circumstances must be aware of rule changes and every lawyer must remember the violation of attorney-client privilege is a very serious violation up there with misuse of funds. These serious violations or repeated violations of attorney-client privileges are career-threatening, license-suspension violations.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.