Can a legal aid office set up a panel of volunteer lawyers to take clients it has to turn away because of a conflict of interest?

Plain-English summary

A bar association and a nonprofit jointly sponsored a pro bono project (a "legal aid office" under DR 2-103(D)(1)) that sometimes had to decline an eligible client because it already represented someone with differing interests. To serve those turned-away clients, the project proposed an independent panel of volunteer lawyers. A conflicted prospective client would be referred to the bar association, screened for eligibility, and matched with a conflicts panel lawyer who would represent the client independently of the project, would not share the client's confidences or secrets with the project, and would keep the file until the matter closed.

The committee saw no impropriety in the panel. So long as conflicts panel volunteers are independently engaged by, and independently render services to, their indigent clients, the panel lawyers are not part of the same firm as one another or as the project for conflict-of-interest purposes. On the intake screening, the committee reasoned that even if a prospective client's eligibility information is a confidence or secret under DR 4-101(A), the project's own staff could perform the screening, provided that information is neither communicated nor available to the lawyers serving the conflicting client. In a footnote, the committee cautioned the project to elicit only the minimum information needed and to withdraw and refer both individuals out if a relevant confidence surfaced despite precautions.

On the second and third questions, the committee found that covering the panel under the project's professional liability policy would not inhibit independent representation (DR 5-101(A), 5-107(A)(2)), and that storing closed conflicts-panel files at the sponsoring bar association is permissible if confidences and secrets are protected in a secure location accessible only to the client, the client's lawyer, or someone with the client's consent (DR 4-101(B)).

On the fourth question, the committee overruled N.Y. State 489 (1978), which had barred a lawyer-board-member (and the lawyer's firm) from opposing the organization's client. New York's adoption of DR 5-110 (effective September 1, 1990) permits a lawyer to serve as a director, officer, or member of a not-for-profit legal services organization even though it serves persons with interests differing from the lawyer's clients, subject to limits on participating in decisions that conflict with the duty of loyalty. Given DR 5-110, the committee held that a board member may represent an opponent of the organization's client for a fee, and a fortiori may do so pro bono.

Currency note

This opinion was issued in 1993, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The provisions on conflicts of interest, confidentiality, and service in legal services organizations have since been renumbered and revised. 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 legal aid office refer clients it has a conflict with to a separate volunteer panel?

A: Yes. The committee held that an independent conflicts panel is permissible, and panel lawyers are not treated as one firm with each other or with the office so long as they are independently engaged and render services independently.

Q: Can the volunteer panel share the legal aid office's malpractice insurance?

A: Yes. The committee found that shared professional liability coverage is a permissible administrative relationship that would not be expected to compromise independent professional judgment (DR 5-101(A), 5-107(A)(2)).

Q: Can a lawyer on the organization's board oppose the organization's client?

A: Yes. Following the 1990 adoption of DR 5-110, the committee overruled N.Y. State 489 and held a board member may represent an opponent of the organization's client, whether for a fee or pro bono, subject to DR 5-110's limits on participating in conflicting decisions.

Background and rules framework

The opinion interpreted New York's former Code: DR 2-103(D)(1) (legal aid offices), DR 4-101 (confidences and secrets), DR 5-101(A) and 5-105(A), (D) (conflicts), DR 5-107 (influence by others), DR 5-110 (service in a not-for-profit legal services organization), DR 6-101(A)(1) (competence), and EC 2-25 (pro bono). The closest Model Rule analogues are Rule 1.7 and Rule 1.10 (conflicts and imputation), Rule 6.3 (membership in a legal services organization), and Rule 6.5 (limited legal services programs). New York replaced the Code with the Rules of Professional Conduct in 2009; the provisions cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.10 (imputation of conflicts)
• MR 6.3 (membership in a legal services organization)
• MR 6.5 (nonprofit and court-annexed limited legal services programs)
• NY DR 2-103(D)(1), DR 4-101, DR 5-101(A), DR 5-105(A), (D), DR 5-107, DR 5-110, DR 6-101(A)(1); EC 2-25

Other opinions cited:

• N.Y. State 489 (1978): overruled; board member opposing the organization's client
• ABA Formal Op. 345 (1979): rejected N.Y. State 489's position
• ABA Formal Op. 334 (1974) and ABA Informal Op. 1309 (1975): legal services organizations and reporting

See also

• NY State Bar Op. 649: An executor's lawyer facing fiduciary misconduct
• NY State Bar Op. 651: Percentage fee to a bar referral service
• NY State Bar Op. 655: Zoning board member representing a plaintiff suing the town

Source

• Landing page: https://nysba.org/opinion-643/