Can a lawyer on a legal aid board, or the lawyer's firm, defend someone the legal aid client is suing?

Plain-English summary

The committee was asked whether a lawyer-member of a non-profit legal service organization's board of directors, or one of the lawyer's associates in private practice, could agree to defend a person sued by an indigent client of the organization. It answered no.

The committee noted the question was new in New York and that out-of-state committees were divided, canvassing a permissive Florida view, a strict New Jersey view, and an Idaho view limited to cases where both parties are indigent. Because only one of the two parties here was indigent, it did not reach the both-indigent scenario. It chose the rule that both promotes the availability of legal services for the indigent and secures their right to zealous counsel (Canon 7), reasoning that there is one standard for pursuing a client's interests whether the client is indigent or affluent, and that the appearance of impropriety is heightened when conflicting interests are entertained at the expense of those who cannot pay.

The committee acknowledged that the Code distinguishes the board from the organization's legal staff for some purposes, such as access to confidential information and control over the staff, and that where non-lawyers sit on the board the staff must not tolerate interference in handling individual cases (Canon 5, EC 5-24). But it held that distinction inapplicable here: every lawyer-member of the board owes a professional duty to the organization, and the staff, though somewhat insulated from board interference, is generally subordinate to the directors. In the eyes of the indigent clientele, the staff could not be seen as free of compromising influences if the lawyer-members of its board accepted retainers from affluent adverse parties. The committee therefore found it wholly inappropriate for a board member to accept such a private retainer. Because the board member could not accept it, the imputation rule of DR 5-105(D) barred any partner or associate from doing so as well (citing N.Y. State 426 (1976); DR 5-105(A), (B)). The question was answered in the negative.

Currency note

This opinion was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (concurrent conflicts are now governed by Rule 1.7, imputation by Rule 1.10, and a lawyer's service in a legal services organization by Rule 6.3). 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: Can a lawyer on a legal aid board defend someone the legal aid client is suing?

A: Under this opinion, no. The committee held it wholly inappropriate for a board member to accept a private retainer to defend a person sued by one of the organization's indigent clients.

Q: Does the bar extend to the board member's law firm?

A: Yes. The committee applied the imputation rule (DR 5-105(D)), so no partner or associate of the disqualified board member could accept the representation either.

Q: Does it matter that one party can pay and the other cannot?

A: The committee stressed that the same standard of loyalty applies to indigent and affluent clients alike, and said the appearance of impropriety is heightened when conflicts are entertained at the expense of those who cannot pay.

Background and rules framework

The opinion applies Canon 5 on loyalty and independent judgment (EC 5-15, EC 5-24; DR 5-105(A), (B), (C)) and Canon 7 on zealous representation, together with the imputation rule DR 5-105(D), in the setting of a legal service organization governed by a board. The current Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.10 (imputation), and Rule 6.3 (membership in a legal services organization).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.10 (imputation of conflicts of interest)
• MR 6.3 (membership in legal services organization)
• NY Canon 5, Canon 7; EC 5-15, EC 5-24; DR 5-105(A), (B), (C), (D)

Other opinions cited:

• N.Y. State 102 (1969): legal staff analogized to a law firm
• N.Y. State 426 (1976): imputed disqualification under DR 5-105(D)
• Fla. Op. 69-24 (1969), N.J. Op. 218 (1971), N.C. Op. 805 (1972): divided out-of-state views

See also

• NY State Bar Op. 490: Status reports to a legal aid board with nonlawyer members
• NY State Bar Op. 485: Legal Aid disclosing client confidences to a research group
• NY State Bar Op. 492: A part-time DA prosecuting a former private client

Source

• Landing page: https://nysba.org/opinion-489/