79-4.

• Case Date: May 01, 1980
• Court: Alaska

Alaska Ethics Opinion 1980. 79-4. Ethics Opinion No. 79-4Whether it is Proper for the ALSC Board of Directors to Review Client Eligibility Determinations and Whether a Conflict of Interest Exists Where a Board Member and His Firm Re p resents an Opponent of an ALSC Client.Summary The Ethics Committee has been asked, 1) whether it is proper for the Alaska Legal Services Corporation (ALSC) Board of Directors to review client eligibility determinations for legal services clients, and 2) does a conflict of interest exist where a Board member or his firm represents an opponent of an ALSC client in the same litigation. It is our conclusion that the review of client eligibility information by the ALSC board is not prohibited by any ethical principle unless the information is protected by the attorney- client privilege. Whether the information is protected by the attorney-client privilege depends on the facts in each particular case. As a general proposition, absence unusual factual circumstances, it would not appear that the attorney-client privilege ordinarily applies. We also conclude that members of the ALSC Board of Directors and members of their firms can represent parties adverse to clients represented by ALSC staff lawyers provided requisite consideration is given to the conflict of interest provisions of the Model Code of Professional Responsibility to assure independent professional advice and judgment to each client. Issue No. 1 The first issue presented for consideration is whether it is proper for the Alaska Legal Services Corporation Board of Directors to review client eligibility determinations for legal services clients. Outside of the legal services context, eligibility for publicly funded programs is subject to internal review by the program administration and directors. This is true even in a program where eligibility depends upon income (or available assets) being below a certain threshold level. In most cases, the fact that an individual is represented by Alaska Legal Services is a matter of public knowledge and record. The fact of representation carries the implication that the client is eligible for such representation. In other words, the basic fact of eligibility is not ordinarily confidential. There is nevertheless some authority for the proposition that specific information relating to client eligibility for representation by ALSC may be protected by the attorney-client privilege. The ALSC Board of Directors is made up of both lawyers and lay persons. The attorney-client relationship between a staff attorney and his client extends to other, attorneys on the staff, but it does not extend to attorney or non-attorney members of the organization's governing body. See, ABA Formal Opinion 324, ABA Informal Opinion 1208, and California Bar Association Opinion 358. In an Informal Opinion, the California Bar Association found that client financial data, including documents related to income and assets, may not be disclosed to the board of directors of a legal aid foundation by a staff attorney (Informal Opinion 358). That opinion is based in part on a California Supreme Court decision that financial eligibility information given by a client to a public defender agency is protected by the attorney-client privilege. People v. Canfield, 10 Cal.3rd 699, 527 P.2d 633 (1974). It should be noted however, that in some districts the Alaska Court System, in determining eligibility for representation in criminal cases by the public defendant, examines potential clients on the question of eligibility in open court. Under such a procedure all the factual details are made available not only to the court and to the agency that may provide legal services, but also to any member of the general public who wishes to listen in. While we do not express approval for this procedure, its employment by the court system in Alaska would seem to indicate that there is no present authority for the proposition that eligibility information is inherently privileged. (see endnote 1) Rule 503 of the Alaska Rules of Evidence provides that the lawyer-client privilege extends to communications "not intended to be disclosed to third persons other than those...