Ethics Opinion

Opinion No. 76-29

December 1976

Summary: The salaried attorneys of a student legal services office operated by one or more nonprofit student government organizations, may properly represent students in criminal matters as part of a general legal services program for students.

Facts: Since early 1976, the Student Legal Services Office of the University of Massachusetts in Amherst, Massachusetts, has undertaken to represent, free of charge, students at the university charged in criminal complaints by either the University of Massachusetts police, the police of the Town of Amherst, or the State Police. The attorneys employed by the Legal Services Office are paid on a salary basis from fees assessed against all students on their tuition bills under a "Student Activities" caption.
The student organizations involved, the undergraduate "Student Government Association" and the graduate "Student Senate," are nonprofit organizations that recommend, furnish, or pay for legal services to their members or beneficiaries through their Student Legal Services Office. The defense of criminal cases accounts for only 15 percent of the work of the office and is thus incident to its general retainer for legal services to students.
The legal services office has issued a bulletin adopted by it on February 12, 1976, entitled "Initial Procedure for Representation of Criminal Matters, Student Legal Services Office."
The question is whether or not the representation of students in criminal cases under the program involves unprofessional conduct on the part of the salaried attorneys.
In our opinion, the allowance of legal services by a nonprofit student government organization is required by the U.S. Constitution. See United Transportation Union v. Michigan, 401 U.S. 576 (1971). This case held that a union had the right to employ counsel to represent its members under the First Amendment guarantee of "the basic right to group legal action" in order to obtain meaningful access to the courts. In citing other cases thus decided, the court said: "The common thread running through our decisions in NAACP v. Button, 371 U.S. 415 (1963) and United Mine Workers v. Illinois State Bar Association, 389 U.S. 217 (1967) is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment ... ."
These cases are included in cases cited in footnote 123 to DR 2-103(D)(5). All these cases deal with providing or recommending counsel for plaintiffs in civil actions. There appears to be no distinction or differing interpretation as to criminal cases.
Although the American Bar Association's Standard Relating to Defense Functions 3.7(c) has not been adopted in Massachusetts, we consider its provision as follows:
It is unprofessional conduct for a lawyer to agree in advance of the commission of a crime that he will serve as counsel for the defendant except ... where the defense is incident to a general retainer for legal services to a person or enterprise engaged in legitimate activity.
There appears to be no violation of this standard, since the Student Legal Service Office does 85 percent of its work in civil cases for students and is therefore within the exception of the standard above quoted.
As to the other requirements and provisions of DR 2-103(D)(5) (a) through (d) inclusive, their application to the facts provided indicate that such provisions are met by the students collectively.
We therefore conclude that such representation would not involve unprofessional conduct on the part of the salaried attorneys within this program.

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.