Can one lawyer in a firm present the administration's case to a school board while another lawyer in the same firm advises the board?

Plain-English summary

The opinion addresses a firm that represents a school board and its administration. When a suspended student or a dismissed employee appeals to the board (which sits in a quasi-judicial capacity), one firm lawyer presents the administration's position while another firm lawyer advises the board on legal and procedural issues during the hearing. The question is whether this dual representation creates a conflict of interest.

The opinion concludes there is no conflict. Rule 1.7(a) makes a concurrent conflict turn on representation directly adverse to another client, or materially limited by responsibilities to another client, and Rule 1.10 imputes one firm lawyer's conflict to the others. Here both lawyers, whether presenting or advising, represent the school board, not the student or employee. Because the firm owes no duty of loyalty to the respondents appearing before the board, there is no conflict relative to them and nothing for Rule 1.10 to impute.

Even so, the opinion strongly urges lawyers to avoid the arrangement. Drawing on Rule 0.1 (Preamble) and its comments about a lawyer's duty to uphold the legal process and further public confidence in the justice system, the opinion observes that respondents who learn the board is advised by a lawyer from the same firm presenting the administration's case perceive the process as biased and unfair, undermining confidence in the proceeding. The committee therefore recommends the board obtain separate counsel to either advise it or present the administration's position. In an end note, the opinion adds that if firm lawyers do not heed that advice, they should avoid communicating with each other about the pending proceeding and should screen themselves, consistent with Rule 3.5(a)'s bar on improper communications with an adjudicative official and the screening definition in Rule 1.0(l).

In practice

Under the North Carolina rules as they stood at the time of the opinion, the dual arrangement is not a conflict of interest, because the firm's only client in the proceeding is the school board and no loyalty is owed to the respondent, so Rule 1.10 imputation does not apply. Per the opinion, the concern is not conflict but the appearance of unfairness, and the committee urges lawyers to avoid the arrangement and recommend separate counsel for the board.

Per the opinion, where a firm nonetheless keeps both roles, the lawyers are urged to refrain from communicating with each other about the pending matter and to screen themselves, consistent with Rule 3.5(a) and the screening procedures described in Rule 1.0(l).

Common questions

Q: Is it a conflict for one firm to both prosecute and advise the board in a school hearing?

A: No. The opinion concludes there is no concurrent conflict under Rule 1.7 because both lawyers represent the school board and owe no duty of loyalty to the student or employee appearing before the board, so Rule 1.10 imputation does not apply.

Q: If there is no conflict, why does the opinion say to avoid the arrangement?

A: Because of how it looks. The opinion concludes the dual representation creates a perception of unfairness that undermines public confidence in the proceeding, and on that basis strongly urges lawyers to avoid it and to recommend the board obtain separate counsel.

Q: What should the firm do if it keeps both roles anyway?

A: Screen the lawyers from each other. The opinion's end note recommends the lawyers avoid communicating about the pending proceeding and screen themselves, consistent with Rule 3.5(a) and the screening definition in Rule 1.0(l), to protect the integrity of the process.

Background and rules framework

The opinion applies North Carolina Rule 1.7(a) (concurrent conflicts of interest) and Rule 1.10 (imputation of one firm lawyer's conflict to the firm), and concludes neither is triggered because the firm represents only the board. It then turns to Rule 0.1 (the Preamble) and its comments on a lawyer's duty to uphold the legal process and public confidence in the justice system, and to Rule 3.5(a) (improper communications with an adjudicative official) and Rule 1.0(l) (definition of screening). These track Model Rules 1.7, 1.10, 3.5, and 1.0.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / NC Rule 1.7(a) (concurrent conflict of interest)
• MR 1.10 / NC Rule 1.10 (imputation of conflicts within a firm)
• MR 3.5 / NC Rule 3.5(a) (improper communication with an adjudicative official)
• MR 1.0 / NC Rule 1.0(l) (definition of screening); NC Rule 0.1, cmts. [5]-[6] (Preamble)

Cases:

• Hope v. Charlotte-Mecklenburg Board of Education, 110 N.C. App. 599 (1993), cited for the due process question the opinion expressly declines to decide.

See also

• ABA Formal Op. 510: Avoiding Imputation of a Prospective-Client Conflict
• ABA Formal Op. 509: Confidential Government Information and Disqualification
• ABA Formal Op. 497: Conflicts Involving Materially Adverse Interests

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2008-formal-ethics-opinion-2/

Original opinion text

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

Inquiry:

A student who is suspended from public school for more than ten days may appeal the suspension to the school board. Similarly, when a certified employee of a school system is dismissed, the employee may appeal the dismissal to the school board. An administrative hearing is held, with the board sitting in a quasi-judicial capacity, to determine whether the decision of the administration should be upheld.

Lawyers with ABC Law Firm have extensive experience and special expertise in education law. School Board retains Law Firm to provide all legal representation to the board and, through the board, to the administration of the school system.

Lawyer A and Lawyer B are both education lawyers employed by ABC Law Firm. May Lawyer A represent the administration in a suspension case against a student in an appeal to the board while Lawyer B advises the board on the legal and procedural issues that arise during the hearing? Similarly, may Lawyer A represent the administration in a dismissal case against an employee in an appeal to the board while Lawyer B advises the board?

Opinion:

This inquiry presents an interesting technical issue of professional responsibility relative to whether there is a conflict of interests created by this form of dual representation. The opinion concludes there is no conflict of interests but that this form of dual representation should be avoided to foster the public's perception of the integrity and fairness of the process.

Rule 1.7(a) provides, in part, that it is a concurrent conflict of interest if the representation of one client will be directly adverse to another client or the representation of one or more clients may be materially limited by the lawyer's professional responsibilities to another client or a former client. Under Rule 1.10, a conflict of interest for one lawyer in a firm is imputed to the other lawyers in the firm unless it is a personal conflict of interest.

It is not a concurrent conflict of interest for one lawyer in a firm to present the administration's position to the school board while another lawyer in the same firm advises the board on the legal and procedural issues that arise during the hearing. Both lawyers, whether acting in the role of prosecutor or the role of advisor, represent the school board and not the student or employee appearing before the board. The arrangement described in the inquiry, therefore, does not present a conflict of interest relative to the student or the employee because no duty of loyalty is owed to them by the lawyers with ABC Law Firm.

Although it is assumed that there is no due process prohibition on the dual representation described in this inquiry and no opinion is expressed on this legal issue, see Hope v. Charlotte-Mecklenburg Board of Education, 110 N.C. App. 599 (1993), it is clear that the dual representation creates a perception of unfairness in the minds of students (and their parents) and employees appearing before the board. During the public comment period on this proposed opinion, numerous commentators stated that respondents, upon learning that the board will be advised by a lawyer who works in the same firm as the lawyer who will be presenting the administration's position, conclude that the board will receive legal advice that is biased in favor of the administration and, for this reason, the proceeding cannot be fair and impartial.

In Rule 0.1, Preamble: A Lawyer's Professional Responsibilities, it is observed that "[w]ithin the framework of [the] Rules [of Professional Conduct],..., many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional moral judgment guided by the basic principles underlying the Rules." One of the basic principles underlying the Rules is the duty of a lawyer, as an officer of the court, to uphold the legal process and to seek improvement in the administration of justice. Rule 0.1, cmts. [5] - [6]. As noted in comment [6] to the Preamble, "a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in constitutional democracy depend on popular participation and support to maintain their authority." This admonition applies to administrative proceedings as well as to judicial proceedings. The dual representation described in this inquiry creates a perception of unfairness that undermines the public's confidence in the rule of law and the fairness of the proceeding. For this reason, lawyers are strongly urged to avoid such dual representation and to recommend that the school board obtain other legal counsel to either advise the board or represent the administration.1

End Notes

• In the event lawyers in the same firm do not heed the admonition of the Ethics Committee to avoid this form of dual representation, it is recommended that the lawyers protect the integrity of the adjudicative process by avoiding communications between themselves about a pending disciplinary or employment proceeding. Screening the lawyers from each other would avoid the appearance that the lawyer presenting the administration's position may influence the lawyer advising the board of education and would be consistent with the prohibitions on improper communications about a pending matter with a judge or other adjudicative official or body in Rule 3.5(a). See Rule 1.0(l) ("'screened' denotes the isolation of a lawyer from any participation in a professional matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.")