Can a lawyer who sits on a legal aid program's board represent a client opposing someone represented by that program's staff attorney?

Plain-English summary

The committee considered whether a lawyer on the board of directors of a Legal Service Program may represent a client whose adverse party is represented by a staff attorney of the same program. It answered with a qualified yes that depends on the board's function.

The central distinction is the board's role. A board whose members directly participate in program client representation stands differently from a board limited to setting policy, with rules that insulate the staff from board influence over individual cases. The first situation is analogous to DR 5-105(D), under which partners or associates of a disqualified lawyer must also decline; the committee compared it to KBA E-242 (two public defenders in the same office could not represent codefendants). So where board members directly participate in representation, a board member and a staff attorney on opposite sides would be like two members of one office representing adverse parties, which is prohibited.

Where board members do not directly participate in client representation, the committee followed the reasoning of ABA Formal Opinion 345: the staff attorneys are the clients' lawyers, no attorney-client relationship exists between the board member and the program client, and so it is not a case of one lawyer representing conflicting interests. The committee acknowledged a residual appearance-of-impropriety concern, noting that legal-aid clients tend to be lower-income and may acquiesce while doubting they are getting independent representation. It required full disclosure and withdrawal if the lawyer's independent judgment becomes affected. Weighing compelling reasons (experienced practitioners can serve on boards, smaller communities need qualified board members, and indigent clients benefit from competent volunteer counsel), it concluded the need for available competent counsel outweighs the appearance of impropriety in the policy-only board situation. It added that where the board member's firm is large enough, having a lawyer other than the board member handle the adverse case is preferable.

Currency note

This opinion was issued in 1982 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer on a legal-aid board oppose a client represented by that program's staff attorney?

A: It depends on the board's role. If board members directly participate in client representation, it is a disqualifying conflict; if the board only sets policy and is insulated from cases, the representation is allowed with safeguards.

Q: Why does the board's role make the difference?

A: When the board directly participates in representation, a board member and staff attorney are like two lawyers in one office on opposite sides (prohibited per DR 5-105(D)). When the board only sets policy, the staff attorneys are the clients' lawyers and no attorney-client relationship runs to the board member.

Q: What safeguards did the committee require even when representation is allowed?

A: Full disclosure of the situation, and withdrawal if it becomes apparent the lawyer's independent judgment is affected or a client perceives that independent representation is not being afforded.

Q: Did the committee prefer any particular arrangement?

A: Yes. Where the board member's firm is large enough, the committee said it is preferable to have a lawyer other than the board member handle a case adverse to a program client.

Background and rules framework

The opinion applies Canon 5 (independent professional judgment) and DR 5-105(D) (imputed disqualification of a disqualified lawyer's partners and associates), and weighs the appearance-of-impropriety concern. The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 6.3 (membership in a legal services organization whose interests may differ from a client's). The committee's test is whether the board member has, in substance, an attorney-client relationship with program clients.

Citations and references

Rules of Professional Conduct:

• DR 5-105(D) (imputed disqualification), Canon 5; modern analogs Model Rule 1.7 and Model Rule 6.3

Other opinions cited:

• ABA Formal Opinion 345 and ABA Informal Opinion 1395 (board members and legal services programs); KBA E-242 (two public defenders representing codefendants).

See also

• KBA Ethics Op. E-296: Not-for-Profit Lawyer Referral Service Board Member
• KBA Ethics Op. E-291: Assistant County Attorney's Partner

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-258.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-258
Issued: May 1982

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May an attorney who is a member of the Board of Directors of a Legal Service Program represent a client in a case when the adverse party is represented by an attorney of the same Legal Service Program?

Answer:

Qualified yes.

References:

DR 5-105(D); Canon 5; ABA Formal Opinion 345; ABA Informal Opinion 1395; KBA E-242

OPINION

The question presented to the Committee was addressed by the ABA Committee on Ethics and Professional Responsibility in Informal Opinion 1395 (1977) and later reconsidered in Formal Opinion 345 (1979). However, the Kentucky Bar Association is not bound by opinions of the ABA.

In answering this question, the central consideration is the role of the Board of Directors of the Legal Service Program. A Board whose members directly participate in program client representation should be considered in a different light than a Board which is restricted solely to establishment of Board policy for the program, not the management of or direct participation in program client representation and whose rules insulate the staff from any influence of the Board with respect to individual cases. The former situation is analogous to situations contemplated by DR 5-105(D), which provides that partners or associates of a lawyer required to decline or withdraw from employment may not accept or continue that employment.

The question as to this situation was answered by this Committee in KBA E-242, which addressed the question of whether two public defenders in the same law office could ethically represent codefendants in a single criminal case. The Committee there concluded that it would be a conflict of interest. This conclusion is clear considering the nature of the Legal Service Program. If the program is one in which the Board members directly participate in program client representation then the Board member and a staff attorney would be in a situation analogous to that of two members of the same law office representing adverse parties, which is prohibited. Thus, in situations where the Board member directly participates in program client representation, it is settled that a conflict of interest would exist if one program client was represented by the Board member and an adverse program client was represented by a staff attorney.

If on the other hand, Board members do not directly participate in the representation of program clients, a different situation exists. This is the situation addressed in ABA Formal Opinion 345. In that opinion, the ABA Committee concluded that the provisions of Canon 5 would not necessarily be violated by the representation by a Board member or his firm of a client involved in litigation with a client represented by counsel provided by a legal service program. In this situation, the program staff attorneys are the attorneys for the clients. The Board members do not represent program clients. Therefore, no attorney client relationship exists between the Board member and the program client, so the problem is not one of an attorney representing clients with conflicting interest (ABA Formal Opinion 345).

There are, however, problems with a Board member's representation of a client adverse to a program client, in such situations. The nature of the clientele of Legal Services Programs tends to be lower income groups. As such, these clients may tend to be submissive and to acquiesce in the representation, feeling they have no choice, but at the same time feeling concerned that they may not be getting independent representation. Thus, the possibility of an appearance of impropriety exists, even though no actual impropriety may exist (ABA Formal Opinion 345).

Accordingly, full disclosure of the situation should be made, and if in the course of representation it becomes apparent that the lawyer's independent judgment is being affected, he should withdraw.

Although problems may exist with a Board member in this situation, there are compelling reasons for allowing such representation. By doing so, Legal Service Programs benefit because active and experienced practitioners are able to serve on the Board. Otherwise, such practitioners would be forced to choose between service on a Board and representation of the clients. Also, in smaller communities it would be very difficult to secure qualified members for a Board who would not, at one time or another, represent a client adverse to a program client. Additionally, it is in the best interest of the indigent client to offer competent volunteer legal counsel.

Although this Committee did not feel that compelling reasons were presented in KBA E-242, it is the Committee's feeling that in situations where the Board members do not directly participate in the representation of program clients, the compelling need for available competent legal counsel outweighs any possible appearance of impropriety in cases where the Board member represents a client adverse to a client represented by an attorney of the same Legal Service Program.

The lawyers on both sides must be sensitive and alert to all ethical problems and if in the course of representation it becomes apparent that independent representation is not being afforded on both sides or one or other of the clients perceives that it is not afforded no matter what the reality then the Board lawyers should assist in change of counsel for the client.

In those situations where the firm of the Board member is large enough to provide a lawyer other than the Board member to represent a client who is in dispute with a client of the program, the Committee feels that this would be preferable to having the Board member directly involved in the presentation.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.