Does representing a trade association make every member a client, barring the lawyer from later opposing a member?

Plain-English summary

The Committee considered whether a lawyer who represents a trade association may also represent interests adverse to the association's individual members. It concluded there is no per se rule disqualifying the lawyer from future litigation adverse to a member; the conflict analysis is driven by the particular facts and turns on the nature of the lawyer's dealings, if any, with the member whose interests would be adverse.

The threshold question is whether an individual member is the lawyer's client at all. The opinion drew on EC 5-18, under which a lawyer for an entity owes allegiance to the entity, not to its constituents, so there is no per se rule of derivative representation for the members of an unincorporated trade association. Whether an attorney-client relationship with a member has nonetheless formed depends on the circumstances, and such a relationship can arise without an express agreement. The Committee identified the relevant factors as the nature of any disclosures the member made to the lawyer, the member's expectations, and the reasonableness of those expectations, citing federal disqualification cases such as Westinghouse Electric Corp. v. Kerr-McGee Corp. and Glueck v. Jonathan Logan, Inc.

The Committee aligned its approach with ABA opinions on representing trade associations (ABA Op. 365 and ABA Op. 390), which look to whether the lawyer affirmatively assumed a duty to the member, whether the member had separate counsel, whether the lawyer represented the member before representing the association, and whether the member relied on the lawyer for its individual interests. It added that the size of the association bears on reasonableness: a member of a large association is less likely to reasonably expect that the association's lawyer represents its individual interests. Where the facts establish an attorney-client relationship with a member, the conflict rules (then DR 5-105 and DR 5-108) would govern any adverse representation.

Currency note

This opinion was issued in 1999, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. 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 Treat this page as historical context, not current guidance.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 representing a trade association make every member the lawyer's client?

A: No. The opinion concluded there is no per se rule of derivative representation; a member becomes a client only where the facts establish an attorney-client relationship with that member.

Q: When does a member of the association become the lawyer's client?

A: The opinion identified the key factors as the nature of any disclosures the member made to the lawyer, the member's expectations, and whether those expectations were reasonable, noting such a relationship can form without an express agreement.

Q: Can the lawyer represent a client adverse to a member of the association?

A: The opinion concluded the lawyer may do so where no attorney-client relationship with that member has formed; where one has, the then-governing conflict rules (DR 5-105 and DR 5-108) would control.

Q: Does the size of the association matter?

A: Yes. The opinion concluded that the larger the association, the less reasonable a member's expectation that the association's lawyer represents the member's individual interests.

Background and rules framework

The opinion interpreted New York's then-governing DR 5-105 (declining or continuing employment when interests conflict, the analog of Model Rule 1.7) and DR 5-108 (conflicts involving former clients, the analog of Model Rule 1.9), informed by EC 5-18 on the lawyer's allegiance to an entity rather than its constituents (the concern now addressed by Model Rule 1.13). The analysis turned on whether an attorney-client relationship with a member had formed.

Citations and references

Rules of Professional Conduct (then in effect):

• DR 5-105 (conflicting interests; analog of Model Rule 1.7)
• DR 5-108 (conflicts with former clients; analog of Model Rule 1.9)
• EC 5-18 (allegiance to the entity; concern of Model Rule 1.13)

Cases:

• Westinghouse Electric Corp. v. Kerr-McGee Corp., 580 F.2d 1311 (7th Cir. 1978), implied attorney-client relationship and disqualification
• Glueck v. Jonathan Logan, Inc., 653 F.2d 746 (2d Cir. 1981), adverse representation of an association member

Other opinions cited:

• ABA Formal Opinion 365 (1992) and ABA Formal Opinion 390 (1995): representing trade associations and their members

See also

• ISBA Ethics Op. 07-01: State Agencies as Separate Clients
• NYC Bar Op. 2001-2: Conflicts in Corporate and Transactional Matters

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1999-01-lawyers-ability-to-represent-a-trade-association-as-well-as-clients-with-interests-adverse-to-individual-members-of-the-association/