Can I serve on the board of a law-reform organization when my firm represents a client (a board of elections) that the organization has filed complaints against?

Plain-English summary

The inquiring attorney was named to the board of a not-for-profit organization involved in elections law and elections-law reform. The attorney will not represent the organization in court, prepare legal documents, or otherwise provide legal services to it. A client of the attorney's law firm is a board of elections, and over the prior five years the organization had filed two administrative complaints against that client (one about access to public records, one about open meetings). The attorney had disclosed a potential conflict to the organization and agreed that, if the board planned to discuss matters involving the firm's client, the attorney would neither attend the meeting nor receive its minutes.

The panel concluded the attorney may serve on the board. It grounded that conclusion in the public-service rules, principally Rule 6.4 ("Law reform activities affecting client interests"), which permits a lawyer to serve as a director, officer, or member of an organization involved in law reform even though the reform may affect a client's interests. The rule and its comment make clear that lawyers who serve law-reform organizations generally do not have a lawyer-client relationship with the organization, and here the attorney expressly provides no legal services to it. The panel noted that conflicts in this context are generally "positional" rather than case-specific, and that actual conflicts requiring client consent should rarely arise under Rule 6.4 (citing Hazard, Hodes & Jarvis, The Law of Lawyering).

The panel observed that Rule 6.4's only requirement is disclosure within the organization when the lawyer knows a decision would materially benefit a client; the rule does not require the lawyer to identify the client and does not restrict participation in the decision. Reading Rule 6.4's comment, the panel added that the lawyer must remain mindful of obligations under other rules, particularly Rule 1.7. On these facts there were no adverse claims by the organization against the firm's client, but the panel cautioned that should such claims arise, the attorney's board position could present a limiting interest within the meaning of Rule 1.7(a)(2), to be judged case by case (citing its own Opinion 89-22). The panel also noted its guidance is limited to the Rules of Professional Conduct and does not reach the State Ethics Code.

In practice

Under this opinion, a lawyer may serve as a director, officer, or member of a law-reform organization even though the firm represents a client whose interests the organization's reform work may affect, because Rule 6.4 expressly permits it and the lawyer has no client-lawyer relationship with the organization. The panel held that the lawyer's only affirmative duty is to disclose within the organization when a decision would materially benefit a client, without naming the client. It further held that if adverse claims later arise between the organization and the firm's client, the board seat could become a limiting interest under Rule 1.7(a)(2), and whether the firm's representation of the client may proceed would then depend on the specific facts.

Common questions

Q: Can I sit on a law-reform organization's board when my firm represents a client the organization opposes?

A: The panel said yes. Rule 6.4 permits a lawyer to serve as a director, officer, or member of a law-reform organization notwithstanding that the reform may affect a client's interests, and the lawyer here provides no legal services to the organization.

Q: What must I disclose?

A: Per the panel, Rule 6.4 requires only that the lawyer disclose within the organization when the lawyer knows a decision would materially benefit a client. The lawyer need not identify the client and is not barred from participating in the decision.

Q: When would Rule 1.7 change the analysis?

A: The panel said Rule 1.7 could apply if actual adverse claims later arise between the organization and the firm's client, because the board position could then be a limiting interest under Rule 1.7(a)(2). Whether the firm could continue would depend case by case on the nature of the claims.

Background and rules framework

The opinion interprets the public-service rules. Rule 6.3 (Model Rule 6.3, membership in a legal services organization) permits a lawyer to serve a legal services organization even though it serves persons with interests adverse to a client, subject to limits on participating in decisions incompatible with Rule 1.7. More directly on point is Rule 6.4 (Model Rule 6.4, law reform activities affecting client interests), which permits service in law-reform organizations and imposes only a disclosure duty when a decision would materially benefit a client. The panel read these against Rule 1.7 (Model Rule 1.7, conflict of interest: current clients), whose materially-limited prong, Rule 1.7(a)(2), could be triggered by future adverse claims.

Citations and references

Rules of Professional Conduct:

• MR 6.4 (law reform activities affecting client interests)
• MR 6.3 (membership in a legal services organization)
• MR 1.7 (conflict of interest: current clients; materially-limited prong 1.7(a)(2))
• RI RPC 6.4, 6.3, 1.7

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• RI EAP Op. 89-22 (1989) (a lawyer's board seat could constitute a limiting interest for a partner's representation of a client in a claim against a doctor on the board's hospital staff)

Secondary authority:

• Hazard, Hodes & Jarvis, The Law of Lawyering section 56.03 (4th ed. 2015) (conflicts under Rule 6.4 are generally positional; actual consent-requiring conflicts should rarely arise)

See also

• RI EAP Op. 89-22: Partner's Hospital Board Seat as a Limiting Interest
• RI EAP Op. 2025-06: Lawyer-Board-Member May Represent Nonprofit If Not Materially Limited
• RI EAP Op. 87-01: Attorney Board-Member Recusal Conflicts

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2017-03.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2017-03
Issued June 8, 2017

FACTS

The inquiring attorney was recently named to the board of a not-for-profit organization that is involved in elections law and elections law reform. The inquiring attorney states that he/she will not represent the organization in court, prepare legal documents, or otherwise provide legal services to the organization. A client of the inquiring attorney's law firm is a board of elections.

Over the last five-year period the organization has filed two administrative complaints against the law firm's board-of-elections client, one relating to access to public records, and the other relating to open meetings. The inquiring attorney has disclosed a potential conflict of interest to the organization. Should the organization's board plan to discuss at a board meeting matters involving the board-of-elections client, the organization and the inquiring attorney have agreed that the inquiring attorney would neither attend the meeting nor receive minutes of the meeting.

ISSUE PRESENTED

The inquiring attorney asks whether he/she may serve on the board of an organization involved in elections law and elections law reform where the inquiring attorney's law firm represents a board of elections.

OPINION

Rule 6.4 of the Rules of Professional Conduct permits the inquiring attorney to serve on the board of an organization involved in elections law and elections law reform where a board of elections is a client of the inquiring attorney's law firm. Rule 1.7 may apply should future claims arise between the organization and the client.

REASONING

The public service provisions of the Rules of Professional Conduct permit lawyers to participate as board members of legal services organizations and organizations whose activities relate to law reform. Rule 6.3, entitled "Membership in legal services organization," states:

Rule 6.3. Membership in legal services organization. A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
(a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.

In addition and more pertinent to the inquiry attorney's inquiry is Rule 6.4, entitled "Law reform activities affecting client interests," which states:

Rule 6.4. Law reform activities affecting client interests. A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

The Comment to Rule 6.4 is instructive. It states:

Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. See also Rule 1.2(b). For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefited.

Rule 6.4 addresses private lawyer participation in organizations that are involved in law reform activities. The rule and its comment make clear that lawyers who serve as directors, officers or members of organizations seeking law reform do not have a lawyer-client relationship with the organization. In the instant inquiry, the inquiring attorney expressly states that he/she will provide no legal services to the organization. Generally, the conflicts of interest that may arise in this context will be "positional" conflicts rather than conflicts over a specific case or matter. Hazard, Hodes, & Jarvis, The Law of Lawyering, at section 56.03 (4th ed. 2015.) Actual conflicts of interest that can only be waived with client consent should rarely arise under Rule 6.4. Id.

The Panel believes that the inquiring attorney may serve as a member of the organization's board, notwithstanding the law firm's representation of a board of elections. Rule 6.4 expressly permits lawyers to serve as directors, officers, or members of organizations involved in law reform even if the reforms may affect the interests of a client. The only requirement of the rule is that a lawyer must disclose to the organization if the lawyer knows that a decision of the organization would benefit a client of the lawyer. Rule 6.4 does not require a lawyer to identify the client, and does not restrict participation in such a decision.

The comment to Rule 6.4, however, reminds lawyers to consider obligations to clients under other Rules, particularly Rule 1.7. Rule 1.7 provides:

Rule 1.7. Conflict of interest: Current clients. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.

Under the facts presented in this inquiry, there are currently no adverse claims by the organization against the law firm's board-of-elections client. Should claims arise, the Panel believes that the inquiring attorney's position in the organization could present a limiting interest within the meaning of Rule 1.7(a)(2). See Rhode Island Supreme Court Ethics Advisory Op. 89-22 (1989) (lawyer's position on hospital's board of directors could constitute limiting interest for partner's representation of client in claim against doctor on hospital's staff). The nature of the future claims and the specific facts will determine on a case-by-case basis whether the representation of the board of elections by the law firm can proceed. See e.g. Rhode Island Supreme Court Ethics Advisory Panel Op. 89-22 (1989) (lawyer whose partner is on hospital board may represent client in claim against doctor on hospital's staff if client and hospital consent.)

The Panel concludes that the inquiring attorney may serve on the board of an organization involved in elections law and elections law reform where a board of elections is a client of the inquiring attorney's law firm. Rule 1.7 may apply should future claims arise between the organization and the client.

The Panel's guidance is restricted to interpretations of the Rules of Professional Conduct and does not extend to issues under the State Ethics Code or any other rules, regulations or laws that may have bearing on the issues raised by this inquiry.