Tuesday, November
28, 2000
Virginia State Bar
- Board Room
RICHMOND, VIRGINIA
The
VSB/VBA Joint Commission on Multidisciplinary Practice
met in the Second Floor Conference Room of the Eighth
& Main Building in Richmond, Virginia, on Tuesday, November
28, 2000, commencing at 10:00 a.m.
Commission
members in attendance were:
John A. C. Keith, Chair
Robert C. Nusbaum
Ann T. Burks
James M. White, III
Craig L. Rascoe
Frank A. Thomas, III
Leigh B. Middleditch, Jr.
Donna D. Lange
Frank A. Thomas, III
Jeffrey G. Lenhart
Clark H. Worthy
Unable to attend were:
Howard
McElroy
James S. McNider, III
Theodore I. Brenner
Nina E. Olson
Brian V. Ebert
James S. McNider, III
John D. Epps
Robert C. Wood, III
Thomas E. Spahn
Paul E. Fletcher
Also attending were:
Thomas
A. Edmonds, VSB Executive Director
James M. McCauley, VSB Ethics Counsel
Flora Townes, T. C. Williams Extern
Mary Yancey Spencer, VSB Deputy Executive Director
Maureen Petrini, VSB Pro Bono Coordinator
I.
Statements of Witnesses on Behalf of Non-Profit Organizations
Representatives of a number of non-profit organizations
spoke on how MDP is currently employed or could be employed
to improve the delivery of legal services to the constituents
they serve, predominantly low-income clients. The consensus
of all the speakers is that changing the rules to allow
MDP, particularly for non-profit organizations, would
be beneficial. All the speakers offered the opinion that
lawyers can work in a non-profit
organization run by non-lawyers and still maintain independent
professional judgment, preserve confidential information
and avoid confllicts.
A.
Andy Block—Legal Director, JustChildren (Charlottesville-Ablemarle
Legal Aid Society)
Mr. Block runs an organization that provides advocacy
and representation of children in the juvenile justice
system through an organization called “Just Children
(JC).” Often, the children served by JC have need
of services besides legal, including mental health, health
care, education, counseling, etc. JC employs two full-time
lawyers whose duties include teaching a clinic at the
UVA law school where 15 law students participate.
The types of cases or issues JC addresses include: special
needs in education, defense of school suspensions or expulsions,
and eligibility under the Comprehensive Services Act which
creates in each locality an interdisciplinary program
for funding and accessing various services.
A psychologist works for JC on a pro bono basis, acting
as a consultant, reviewing records, charts, etc, relating
to social services, mental health evaluations, educational
evaluations. At some point, he said, it would be desirable
to have professionals on staff, but he worries about the
conflicting ethical duties of a social worker, on the
one hand, and the duties of a lawyer. Assuming these conflicts
can be worked out, a multidisciplinary approach in most
effective, as clients can have access to a number of different
professional services under one roof.
B. Phyllis Katz—Co-founder, Legal Information
Network for Cancer (LINC)
LINC is an organization that provides legal services to
cancer patients through a referral network. LINC also
has a lay mission involving educating people with terminal
illnesses through community education programs. Lay persons
assist patient/clients in medical coverage disputes. Cancer
patients have a plethora of problems, legal and non-legal.
Some of them involve creditors, medical care providers,
landlords, and financial. Medical social workers are involved
in assisting patients in applying for Medicare/Medicaid.
Phyllis Katz indicated that their Legal Aid section uses
non-lawyers, i.e., social workers, to counsel cancer patients
and they train 30 to 40 individuals to perform this work.
These volunteer workers are trained to avoid UPL. The
only attorney on staff is the Executive Director. Patients
needing legal services are referred to outside counsel.
If lay social workers encounter legal issues while counseling
a patient, they refer that matter to the Executive Director
who calls upon volunteer attorneys in private practice.
Ms. Katz expressed an interest in being able to staff
lawyers in-house, but perceives the current rules and
regulations as prohibiting a lay organization from providing
legal services to members of the public using lawyers
on staff.
LINC uses a predominantly lay governing board, although
some lawyers serve on the board. Ms. Katz observed that
with fewer lawyers on the board the organization has flourished.
She attributes this primarily with lawyers’ commitment
to LINC being diluted by their other professional obligations.
The Executive Director reports to the lay board, but the
lay board does not question her legal judgments, nor does
the board supervise legal services. A separate client
services board monitors legal services and this board
is made up of lawyers.
II.
Professor Stacey Brustin
Professor Brustin is a law professor at Columbus School
of Law, Catholic University in Washington, D.C. Professor
Brustin is researching MDP in the context of non-profit
legal services. She is currently doing a case study of
three different multi-service programs in D.C. which involve
lawyers working together with other professions. She will
be publishing an article which is nearly complete explaining
how MDP can improve the delivery of legal services to
the poor. These service centers provide assistance for
individuals in matters involving domestic violence, AIDS
and elder issues.
Professor Burstin stated that her research revealed that
non-profit organizations are not specifically exempted
from the requirements of Rule 5.4. Some states have, by
way of comments, recognized that legal aid offices are
governed by boards which include nonlawyers. Utah has
a provision that specifically authorizes lawyers to practice
in a non-profit organization.
Professor Burstin identified the “core values” at issue
in MDP: confidentiality, conflicts of interest and independence.
Confidentiality problems are reduced by physical setup,
training and properly executed intake and reception of
prospective clients. Information sharing among professionals
with conflicting reporting duties still remains an issue.
Conflicts can be resolved by screening and setting up
chinese walls. Regarding independence, this depends upon
the degree of influence, if any, a lay governing board
exercises over legal services. Lay boards in non-profits
are not motivated to control staff lawyers judgement in
legal matters handled by the organization.
Professor Burstin will recommend that a distinction be
drawn for non-profits that would permit lawyers to practice
in a MDP environment. With the removal of profit motivation,
the fear of non-lawyer interference with a lawyer’s legal
judgment is merely theoretical, and not an issue in the
non-profit world.
III.
Debbie Sifford—Executive Director, New River Valley
Legal Aid Services—The Guardianship Program
The legal aid office is governed by a board composed mainly
of lawyers but nonlawyers also participate. The office
relies on pro bono lawyers and get 50% participation from
the lawyers in private practice in the area served. There
was a grant application for an adult Guardianship Program
as community groups were interested in providing health,
mental, social and legal services to the elderly. The
Department of Aging received and granted the application.
There are 20 clients in the program and a client of the
program is a client for the entire legal aid office for
purposes of conflicts. The Dept of Social Services actually
files the petitions for guardianship, not the Legal Aid
office. The legal aid staff serve as the guardian. Screening
is done to determine if a guardianship client is adverse
to a legal aid client. These could be former spouses,
children or other relatives of the guardianship client.
Nonlawyers serve on the advisory board, but staff attorneys
handle the legal aspects of the case. The advisory board
includes former staff attorneys. The legal aid office
also works with SIMSIP matters. This is a program designed
to obtain medicaid benefits for children whose parents
are not eligible for other types of health insurance.
Two non-lawyer workers are involved in getting 4,000 children
enrolled. The legal aid office treats these children as
“clients” for purposes of the conflicts rules.
The likelihood of conflicts is nominal. This program does
tie into issues of child support and parental supervision.
But these people need the benefit of a “one-stop”
shop because the geographical area served by the office
is so large, there is no mass transit in Southwest Virginia
and the clients are low-income or poor. There is a need
to provide as much service in one office visit as possible.
The office utilizes a wide variety of disciplines: mediation,
social work, medical, counseling, law, etc.
IV.
Elizabeth Pendzich, Director, Loudoun Abuse Women’s
Shelter (LAWS) Legal Clinic
Ms. Penzich is also a member of the VSB's Access to
Legal Services Committee. She serves as staff attorney
for LAWS and answers to a non-lawyer BOD. She does not
have a problem with the lay board. She makes her own case
decisions and handles case management free of any direction
or influence from the board. Her agency provides a variety
of services involving domestic violence, counseling, children’s
programs, group support, teen programs, nurturing programs
and sexual assault services. These services are not limited
to low-income and the cross-section of clients includes
all economic strata. Ethical issues concerning screening,
case management, files, security systems, reporting requirements
are relevant to a MDP. But the bar’s rules should
not restrict the good work that is being done. Professional
social workers and counselors have their own ethical standards.
Law practice in the agency is limited to protective orders,
custody, support, separation and uncontested divorce.
Her salary is paid by LAWS. Legal services act as the
“linchpin” for other non-legal services. You
cannot have stability, support and economic independence
without the legal services and protective orders.
V.
Subcommittee Reports
