Table of Contents
Who Can Join JusticeReferrals.org?
Does Joining or Participating in JusticeReferrals.org Cost Money?
How Does JusticeReferrals.org work?
What About Attorney-Client Privilege and Confidentiality?
– Detailed Discussion of Attorney-Client Privilege
– Detailed Discussion of Confidentiality
What About Conflicts of Interest?
What Should Prospective Clients Agree To?
Who Can Join JusticeReferrals.org?
Membership is limited to Maryland legal services organization attorneys and private attorneys affiliated with those organizations.
Does Joining or Participating in JusticeReferrals.org Cost Money?
No. JusticeReferrals.org was made possible by a generous grant from the Maryland Legal Services Corporation as a tool for placing low and moderate income clients with effective legal representation.
How Does JusticeReferrals.org work?
Glad you asked. Please see the detailed description available here.
What About Attorney-Client Privilege and Confidentiality?
As explained in detail below, we believe there is a strong argument for why posting a matter on JusticeReferrals.org does not waive attorney-client privilege with regard to the posted materials. The duty of confidentiality is satisfied so long as the client provides informed consent for the disclosure through JusticeReferrals.org. Informed consent must be obtained from the potential client before posting a matter. The best practice is to obtain a written authorization in the form available here.
– Detailed Discussion of Attorney-Client Privilege
Generally, a client has a privilege to refuse to disclose, and to prevent any other person from disclosing, her confidential communications made to a lawyer or the lawyer’s agent for the purpose of obtaining professional legal services. The attorney-client privilege also protects confidential communications from lawyer to client.
6 Lynn McLain, Maryland Evidence, § 503:1. Critically, the attorney-client privilege applies “during interviews and negotiations looking to the establishment of such a relationship between the parties.” Rubin v. State, 325 Md. 552, 565, 602 A.2d 677, 683 (1992). Moreover, the privilege extends to the attorney’s staff: “[A] client’s confidential statements to the attorney’s secretary or clerk would be privileged.” 6 Lynn McLain, Maryland Evidence, § 503:3.
Maryland has held that a reasonable subjective expectation of confidentiality can be held even if a communication takes place in the presence of a third party. In Newman v. State, 384 Md. 285, 863 A.2d 321 (2004), a friend accompanied the client to a consultation with her attorney to keep things more focused and to help ease the client because she was so distraught over the possibility of losing her children. The attorney invited the friend into his office to witness the consultation. While acknowledging that the presence of a third party can destroy the attorney-client privilege, the court insisted that the “essential inquiry is ‘whether the client reasonably understood the conference to be confidential’ notwithstanding the presence of third parties.” Newman v. State, 384 Md. 285, 306–307, 863 A.2d 321 (2004).
Because only attorneys are permitted to be members of JusticeReferrals.org, communications through JusticeReferrals.org is the equivalent of an interview looking to the establishment of a lawyer-client relationship, and thus should not waive attorney-client privilege.
– Detailed Discussion of Confidentiality
Maryland Rule of Professional Conduct 1.6 provides in relevant part: “A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent.”
Maryland Rule of Professional Conduct 1.18 provides:
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
Accordingly, a member must gain informed consent from a potential client before posting the details of the matter through JusticeReferrals.org. We have provided a sample consent form that is available here. A member viewing a posted matter on JusticeReferrals.org should take care to keep confidential the information in the post. Viewing the details of a posted matter on JusticeReferrals.org should be treated the same as having an in-person initial consultation.
What About Conflicts of Interest?
Members viewing a matter on JusticeReferrals.org should be mindful of the potential for conflicts of interest with existing or former clients. However, before the details of a matter can be viewed by a member, the member views a screen indicating the name of the client, adverse parties, and the nature of the legal matter. To view the full matter, the member must click a box indicating that there is no conflict of interest. JusticeReferrals.org tracks who clicks on the box, so members need not worry that they will face allegations of a conflict unless they check that box. If the box is check and the details of the matter are viewed, a member should treat it as if it had been a full initial consultation and maintain the potential client in their conflicts management system.
What Should Prospective Clients Agree To?
Ideally, every potential client should sign the consent form available here prior to their matter being posted. It is up to the posting member to make the final decision on whether they have informed consent from the prospective client to post a matter on JusticeReferrals.org.
Alternatively, e-mail or verbal authorization may be sufficient after reading the terms of the consent form.