Can a lawyer who sits on a not-for-profit association's board also represent the association, including suing fellow members for unpaid dues?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer owned a lot in a private subdivision governed by a not-for-profit lake association, and was elected to the association's board of directors. The association funded itself through member dues, and a large number of members were delinquent. The committee was asked whether the lawyer, as a board member, could represent the corporation in collecting the delinquencies owed by other lot owners.
The committee concluded the lawyer could serve as the corporation's lawyer so long as he refrained from any board vote on his own employment, and cautioned that under former Rule 4-101(a) he had to maintain all of the client's confidences. Citing its Opinion 483, it noted that a lawyer who is both a director and counsel must advise the corporate client of the possible loss of the attorney-client privilege and must be unusually vigilant that his director role never infringes on his legal advice and representation; that guidance applied equally to a not-for-profit client.
Turning to the dues collection, the committee applied former Rule 5-101(a): absent the client's consent after full disclosure, a lawyer may not accept employment if his professional judgment will be or reasonably may be affected by his own financial, business, property, or personal interest. Because any compromise or settlement of the delinquency actions would enhance or diminish the lawyer's own interests as a lot owner, his independent judgment might be affected. The committee concluded that, with the client's consent, the lawyer may represent the corporation to collect the delinquencies even though he will be financially affected.
Currency note
This opinion was issued in May 1987, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 1.7, with Comment [35]), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.
Common questions
Q: Can a lawyer on a nonprofit's board also be its lawyer?
A: The opinion concluded yes, provided the lawyer abstains from any board vote on his own employment and maintains the client's confidences under former Rule 4-101(a).
Q: What did the committee warn about combining the director and lawyer roles?
A: Citing Opinion 483, it said the lawyer must advise the corporate client of the possible loss of the attorney-client privilege and must be vigilant that his director role never infringes on his legal advice and representation.
Q: Can the lawyer-director sue fellow members for unpaid dues?
A: Per the opinion, yes, but only with the client's consent after full disclosure, because his own interest as a dues-paying lot owner could affect his judgment on compromise or settlement under former Rule 5-101(a).
Background and rules framework
The opinion applied former Illinois Code Rule 4-101(a) (confidences and secrets) and Rule 5-101(a) (employment affected by the lawyer's own financial, business, property, or personal interest). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 1.7, with Comment [35], corresponding to ABA Model Rule 1.7 on conflicts, including a lawyer serving as a director of an organization the lawyer represents.
Citations and references
Rules of Professional Conduct:
- Illinois Code Rule 4-101(a) (confidences and secrets, applied in the opinion)
- Illinois Code Rule 5-101(a) (personal-interest conflict)
- Illinois RPC 1.7 with Comment [35] (2010 equivalent per the Board's affirmation)
- MR 1.7 (conflicts of interest, including lawyer serving as director)
Other opinions cited:
- ISBA Opinion 483: a lawyer serving as both director and counsel to a corporation
See also
- ISBA Ethics Op. 88-05: Board Seat and a Rival Client
- ISBA Ethics Op. 88-06: School Board Member vs. the District
- ISBA Ethics Op. 02-01: Lawyer on a Reinsurer's Board
Source
- Landing page: https://www.isba.org/ethics/opinions/8614
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