If a lawyer joins a police organization's panel and handles cases for its members, when is the lawyer disqualified from representing criminal defendants or other adverse clients?

Plain-English summary

A general-practice lawyer who occasionally represented criminal defendants considered placing his name on a list maintained by PBA, a police officers' organization, of lawyers willing to represent PBA members in civil and criminal matters. Panel lawyers took no retainer, could accept or reject cases, and represented individual members though the statewide organization paid the fees. The inquiry asked, in three parts, how joining the panel and various PBA relationships would affect the lawyer's ability to represent other clients.

On the first question, the opinion concluded that merely listing his name would not automatically preclude the lawyer from representing all criminal defendants, but once he handled a PBA member's case he could be disqualified depending on the facts. Under Rule 5.1(a), accepting a member's case would bar him from any suit adverse to that member unless he reasonably concluded he could represent both and both clients consented after full disclosure. Under Rule 5.1(d), he would be permanently barred from representing a second client in a matter substantially related to the member's matter unless the member consented.

On the second question, the opinion concluded the same general analysis applied to handling occasional research for the local chapter, except that in research matters the client appeared to be PBA as an organization rather than an individual member, so the lawyer could not simultaneously do research for PBA and handle a matter adverse to PBA. On the third question, the opinion concluded that if the lawyer maintained a continuous relationship as PBA's local or state counsel, he could not simultaneously represent any client adverse to PBA or its members unless he reasonably believed he could adequately represent both and both PBA and the other client consented after full disclosure.

Currency note

This opinion was issued in 1989, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provisions it applies (Rule 5.1(a), concurrent conflicts, and Rule 5.1(d), the substantial-relationship bar) have since been renumbered and revised (the corresponding Model Rules are 1.7 and 1.9). 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 joining the panel automatically bar the lawyer from criminal defense work?

A: No. The opinion concluded that merely listing the lawyer's name does not automatically preclude representing criminal defendants.

Q: What happens once the lawyer handles a member's case?

A: The opinion concluded that a current-client conflict then bars adverse representation absent reasonable belief and consent, and a substantially related later matter is permanently barred without the member's consent.

Q: Who is the client when the lawyer does research for the organization?

A: The opinion concluded that in research matters the client appears to be the organization itself, so the lawyer cannot simultaneously do research for it and handle a matter adverse to it.

Q: What if the lawyer serves as the organization's standing counsel?

A: The opinion concluded the lawyer then cannot simultaneously represent any client adverse to the organization or its members absent reasonable belief and the consent of both.

Background and rules framework

The opinion applied North Carolina Rule 5.1(a), the concurrent-conflict provision (corresponding to Model Rule 1.7), and Rule 5.1(d), barring representation in a matter substantially related to a prior client's matter (corresponding to Model Rule 1.9). The analysis turned on identifying who the lawyer's client was in each arrangement, an individual member or the organization, and applying the consent and substantial-relationship limits accordingly.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.1(a) (concurrent conflicts of interest)
• North Carolina Rule 5.1(d) (substantially related later matters)
• MR 1.7 (concurrent conflicts of interest); MR 1.9 (duties to former clients)

See also

• NC Ethics Op. RPC 65: representation of codefendants by the public defender
• NC Ethics Op. RPC 176: conflict of interest involving a legal assistant

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-60/

Original opinion text

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

Inquiry #1:

Attorney A is engaged in the general practice of law in North Carolina and occasionally represents criminal defendants. PBA, an organization of police officers, maintains a list of attorneys willing to represent PBA members in civil and criminal matters. Attorneys on the PBA list are not paid a retainer fee, and may accept or reject cases as they arise. The attorneys represent the individual PBA members, although fees are paid by the statewide PBA organization.

If Attorney A places his name on the list of attorneys willing to represent PBA members, will he thereby be precluded from representing criminal defendants in any other matter?

Opinion #1:

Attorney A will not be automatically precluded from representing all criminal defendants simply by placing his name on PBA's list of attorneys willing to handle matters for PBA members. Once Attorney A handles a PBA case, however, he may thereafter be disqualified from representing either a criminal defendant or a PBA member, depending on the particular facts.

For instance, if Attorney A accepts a case on behalf of a PBA member, Rule 5.1(a) would prohibit Attorney A from accepting any suit in which the client's interests are adverse to those of the PBA member, unless (1) Attorney A can reasonably conclude that he can represent the PBA member and the new client and (2) both clients consent to the multiple representation after full disclosure of the risks involved.

Moreover, Rule 5.1(d) forever precludes Attorney A from representing a second client in a matter substantially related to the matter which Attorney A handled for the PBA member, unless the PBA member consents to the later representation.

Inquiry #2:

Will the answer be different if Attorney A simply agrees to handle occasional research projects for the local PBA chapter on matters of general interest, such as employment law?

Opinion #2:

The same general analysis applies if Attorney A agrees to handle research matters for PBA on a case-by-case basis. In the case of research, however, the client appears to be PBA as an organization, rather than an individual PBA member. Thus, Attorney A may not simultaneously do research for PBA and handle a matter for a client whose interests are adverse to PBA.

Inquiry #3:

Will the answer be different if Attorney A serves as state and/or local counsel to the PBA chapter as well as undertaking occasional representation as set out in question I?

Opinion #3:

If Attorney A maintains a continuous relationship with PBA, by serving as its local and/or state counsel, Attorney A may not simultaneously represent any client whose interests are adverse to PBA or its members unless Attorney A (1) reasonably believes that he may adequately represent both clients' interests despite the conflict and (2) both PBA and the other client consent after full disclosure of the conflict and the risks involved.