November 10, 2022
The Disability Rights Education & Defense Fund (DREDF) is a national nonprofit law and policy organization based in Berkeley, California, and dedicated to advancing and protecting the civil rights of people with disabilities. DREDF was founded in 1979 by people with disabilities and parents of children with disabilities, and we remain Board- and staff-led by the communities for whom we advocate. DREDF receives funding as a Support Center providing disability rights expertise within the formal California legal services system. You may find more information about DREDF, our work, and our staff on the DREDF website: https://dredf.org/.
DREDF is interested in Listserv-related legal research that is relevant to our work, but not necessarily limited to nonprofit legal services organizations in California. However, priority should be given to analysis specific to California nonprofit law and policy organizations. As is now typical in many sectors, people working in the legal sector use Listservs as a communication tool. Use of Listservs has implications for ethical obligations under Rules of Professional Conduct. Key ethics issues include attorney-client privilege; work product privilege; and obligations to perform “conflict” checks before providing advice or representation. Additionally, use of Listservs has implications for what might be “discoverable” under rules of evidence, particularly in the context of litigation or potential litigation.
Listserv features can vary, with key distinctions including: (a) whether a Listserv is “closed” or “open” (i.e., whether participation is limited to specified and vetted members, or whether anyone can post or review posts); (b) whether participation is limited to licensed attorneys, or also includes other legal professionals; (c) whether a Listserv is focused on a particular subject matter or type of law practice (e.g., focused on a specific substantive field of law, focused solely on litigation, focused on nonprofit organizations, etc.); and (d) whether Listserv participation is limited to a particular state or legal jurisdiction. The purpose of this research is to determine if—and as relevant, how—the nature of the analysis changes based on the following Listserv characteristics and posts.
(1) Whether post(s) relate to a client or potential client that attorney(s) are representing or considering representing;
(2) Whether post(s) are about attorney(s) personal situation or interests, rather than on behalf of a client or potential client;
(3) Whether analysis varies if the Listserv is “closed” or “open” (though priority should be on “closed” Listservs);
(4) Whether analysis varies if the Listserv includes only attorneys, or a mix of attorneys and non-attorneys;
(5) Whether analysis varies if the post(s) are about something “off topic” from the specified subject matter or practice focus of the Listserv (if any);
(6) Whether analysis varies if relevant factual details are presented in an “anonymous” or “hypothetical” form;
(7) Whether analysis varies if purportedly “anonymous” details are in reality easy to identify with particular client(s), potential client(s) or situations; and
(8) Whether different analysis applies to the post(s) by the initiating person, versus response(s) from other member(s) of the Listserv.
Major revisions were made to the California Rules of Professional Conduct in 2018, and there have been a few subsequent amendments as well. California RPC information is available here: https://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct. The current California RPC were modeled on—but are not entirely identical to—the ABA Model Rules of Professional Conduct. ABA Model Rules are available here: https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/. Research should look for case law and ethics opinions relevant to analyzing the characteristics listed above.
If time permits, research can also include a systematic survey of publicly available guidelines or rules associated with legal sector Listservs, particularly for purposes of identifying “best practices.”
DREDF recognizes that it can be difficult at the outset of legal research to determine how complex and time-consuming the research might be. The DREDF attorney supervisor will be available to assist the student in further focusing, reconfiguring or expanding research questions, as makes sense as the research unfolds. Students are welcome to ask questions and engage with the DREDF supervisor as frequently as desired. DREDF has significant experience supervising law students, which we regard as a crucial part of our mission, and an aspect of our work that all DREDF attorneys enjoy. This includes accommodating students with disabilities as needed, and addressing any other concerns or needs that students might have.
Eligible for HLS pro bono credit.
If interested, email Linda D. Kilb, Esq., Director, California Legal Services Trust Fund Support Center Program at firstname.lastname@example.org with your interest and availability with a cc: to Lee Mestre Lmestre@law.harvard.edu in OCP.