Ezel / Ethics Opinions / NYSBA
NYSBA 2006-03-17

If a private firm's lawyer supervises one project of a law school legal clinic, are the clinic's other conflicts imputed to that lawyer's firm?

Short answer: Yes. Where the clinic's students share common workspace and physical files, the whole clinic is one law firm, so the conflicts of the entire clinic are imputed to the supervising lawyers' firms and vice versa. The proposed screening did not prevent this because students still shared workspace and files.
Currency note: this opinion is from 2006
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 794: When a law school clinic's conflicts reach the supervising lawyers' firms

Short answer: So long as a clinic's students work in a common space with shared access to physical files, the entire clinic is treated as one law firm, so the conflicts of all of its projects are imputed to the private firms of lawyers who supervise even a single project, and vice versa.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A law school clinic ran several projects grouped by practice area (a civil rights project, a low-income tax project, and a new "Consumer Project"). The Consumer Project enlisted two private-bar lawyers as supervisors: a faculty member who is "of counsel" to a firm and a partner at another firm serving as clinical instructor. The clinic asked whether the supervising lawyers' participation would impute the entire clinic's conflicts to their firms (and the firms' conflicts to the clinic's other projects), and whether a set of segregation measures (separate supervisor offices outside the common space, separate electronic databases, project-specific conflict checking, separate letterhead, and confidentiality training) could prevent that imputation.

The committee concludes the measures are not sufficient, because the students assigned to the different projects still work side by side in a common space and the client files are physically located together in that space. Under the Code, a law school legal clinic is a "law firm" (a qualified legal assistance organization under DR 2-103(D)), so the vicarious-disqualification rule of DR 5-105(D) applies. The committee notes that DR 5-110 carves out lawyers who serve as a director, officer, or member of a not-for-profit legal services organization, but that exception covers administering, making policy, or teaching, not representing the organization's clients; lawyers who actually represent clinic clients remain fully subject to DR 5-105(D).

The committee analogizes to its contract-lawyer and office-sharing opinions (N.Y. State 715, N.Y. State 583, and others), where the controlling question is whether confidences and secrets are protected. With appropriate safeguards, merely sharing a leasehold, library, or receptionist does not merge separate practices. Here, though, the physical proximity of students from different projects in a shared space, with no physical barrier to the files, created the risk that confidences would be shared and that independent judgment could be subtly influenced. On those facts the clinic, including the Consumer Project, must be treated as a single law firm, so the disabilities of any clinic personnel are imputed both to the rest of the clinic and to the firms with which the supervising lawyers are associated.

In practice

Under the New York Code as it stood at the time, the opinion holds that a law school clinic whose students share work space and physical file space is one law firm for conflicts purposes, so a private-firm lawyer who supervises a single clinic project takes on the clinic's full set of imputed conflicts (and brings the firm's conflicts into the clinic). The committee identifies physical proximity and shared file access, not the electronic-database wall or the separate letterhead, as the factor that defeated the proposed screen. The committee acknowledges this result may discourage some private practitioners from clinic work but declines to depart from what the Code and its prior opinions require.

Common questions

Q: Is a law school legal clinic treated as a law firm for conflict-of-interest purposes?

A: Yes. The committee treats the clinic as a "qualified legal assistance organization," which the Code's definitions include within "law firm," so the imputation rule of DR 5-105(D) applies to it.

Q: If a lawyer supervises only one clinic project, do only that project's conflicts impute to the lawyer's firm?

A: No. Where the clinic's students share common workspace and physical files, the committee treats the whole clinic as a single firm, so the conflicts of every project impute to the supervising lawyer's firm, and the firm's conflicts impute back to the clinic.

Q: Did the clinic's screening measures prevent imputation?

A: No. The committee found the separate offices, separate electronic databases, project-specific conflict checks, separate letterhead, and confidentiality training insufficient, because students from different projects still worked side by side and the files sat together in the common space.

Q: Does the DR 5-110 legal-services-organization exception help here?

A: Not for the lawyers representing clinic clients. The committee reads DR 5-110 to cover lawyers who serve as a director, officer, or member (administering, making policy, or teaching), not lawyers actively representing the organization's clients, who remain subject to DR 5-105(D).

Background and rules framework

The opinion applies New York's former Code of Professional Responsibility. The central rule is DR 5-105(D), the firm-wide imputation rule (analogous to Model Rule 1.10), read together with the Code's definition of "law firm" (analogous to Model Rule 1.0(c)) and DR 2-103(D), which lists qualified legal assistance organizations including law-school-sponsored legal aid offices. DR 5-110, the not-for-profit legal services organization provision (analogous to Model Rule 6.3), supplies the only relevant exception, and the committee reads it narrowly. The former-client imputation discussed runs through DR 5-108 (analogous to Model Rule 1.9).

Citations and references

Rules of Professional Conduct:

  • MR 1.10 (imputation of conflicts within a firm); NY DR 5-105(D)
  • MR 1.0(c) (definition of "firm"); NY Code "law firm" definition; NY DR 2-103(D) (qualified legal assistance organizations)
  • MR 6.3 (membership in legal services organization); NY DR 5-110
  • MR 1.9 (duties to former clients); NY DR 5-108

Other opinions cited:

  • N.Y. State 715 (1999): when a contract or temporary lawyer is "associated" with a firm for imputation
  • N.Y. State 688 (1997): applying conflict rules to a legal clinic
  • N.Y. State 583 (1987): office-sharing and DR 5-105(D)
  • ABA Formal Op. 88-356: temporary lawyers and conflicts
  • N.Y. State 793 (2006): imputation through an of-counsel relationship

See also

Source