Does a lawyer who represents a trade association also represent its individual members, and when can the lawyer take a matter adverse to a member?

Plain-English summary

Opinion 305 (adopted January 2001) addressed the duties of a lawyer who represents a trade association, a common arrangement in Washington, D.C., focusing on when the lawyer may take a matter adverse to a member. Under Rule 1.13(a), a lawyer for an organization represents the entity acting through its authorized constituents, and Comment [13] to Rule 1.7 confirms that the lawyer for a trade association represents the entity, not its members. So representing the association does not, by itself, create an attorney-client relationship with each member.

The opinion concluded that, in general, the association's lawyer may represent the association adverse to a member, and is usually free to represent an unrelated party adverse to a member, because the member is not the lawyer's client. But it identified two situations requiring more. First, a member may become a de facto client where, under all the circumstances, the member reasonably believed it was being individually represented, a determination the opinion drew from Westinghouse Electric Corp. v. Kerr-McGee Corp. and ABA Formal Op. 92-365 and that turns heavily on whether the member shared confidential information with the lawyer and the parties' expectations (the association's size bears on how reasonable the belief is). If the member is a de facto client, the lawyer faces a Rule 1.7 conflict: a same-matter adverse position is barred under 1.7(a), and other conflicts require the consent of both the member and the new client under 1.7(c).

Second, even where no attorney-client relationship exists with the member, the opinion concluded the lawyer must assess whether the new representation would be materially impaired by the association work. Under Comment [14] to Rule 1.7, the matter is improper without consent if it is the same as or substantially related to the association work, if the lawyer acquired association confidences usable to a member's disadvantage, or if it is likely to have a material adverse effect on the association's finances. The opinion illustrated these limits with Glueck v. Jonathan Logan, Inc. (substantial relationship) and North Star Hotels (financial adversity). In those cases the lawyer may proceed only with the consent of both the association and the prospective client under Rule 1.7(c).

Currency note

This opinion was issued in 2001, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a lawyer for a trade association also represent its members?

A: The opinion concluded no, not automatically. Under Rule 1.13 and Comment [13] to Rule 1.7, the lawyer represents the association itself, not its members, so no attorney-client relationship arises with each member merely from the association representation.

Q: When does an association member become a de facto client?

A: The opinion concluded a member becomes a de facto client where, under all the circumstances, the member reasonably believed it was being individually represented, especially where it shared confidential information with the lawyer in that belief (following Westinghouse and ABA Op. 92-365).

Q: Can the lawyer take a matter adverse to a member?

A: The opinion concluded the lawyer generally may, because the member is not a client; but if the member is a de facto client, or if the matter is substantially related to the association work or materially financially adverse to the association, the lawyer needs consent under Rule 1.7(c).

Q: Does the association's size matter?

A: The opinion concluded it can. The larger the association, the less reasonable it is for a member to expect that the association's lawyer represents its individual interests.

Background and rules framework

The opinion interpreted D.C. Rule 1.13 (organization as client, acting through its constituents), Rule 1.7 (conflicts, including the de facto client and impairment analyses in Comments [13]-[16]), Rule 1.6 (confidentiality, which can protect a member's communications where a de facto relationship exists), and Rule 1.16 (declining or terminating representation). It relied on ABA Formal Op. 92-365 and federal disqualification decisions including Westinghouse, Glueck, and North Star Hotels, and noted Rule 1.9 would govern if the association were a former client.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.13 / Model Rule 1.13 (organization as client)
• D.C. RPC 1.7 / Model Rule 1.7 (conflicts; de facto client; impairment)
• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality)
• D.C. RPC 1.16 / Model Rule 1.16 (declining or terminating representation)

Cases:

• Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978) (when a trade association member becomes a client)
• Glueck v. Jonathan Logan, Inc., 653 F.2d 746 (2d Cir. 1981) (substantial-relationship disqualification)
• North Star Hotels Corp. v. Mid-City Hotel Assocs., 118 F.R.D. 109 (D. Minn. 1987) (disqualification for financial adversity)

Other opinions cited:

• D.C. Ethics Opinions 216, 269
• ABA Formal Op. 92-365 (1992); ABA Formal Op. 95-390 (1992); ABCNY Op. 1999-01; Oregon Op. 1991-27

See also

• ABA Formal Op. 92-365: Trade Associations as Clients
• DC Ethics Op. 328: Personal Representation of Organization Constituents
• ABA Formal Op. 95-390: Conflicts in the Corporate Family

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-305