Can a law school clinic's supervising attorney represent a client against a lawyer who is on the law school's board of trustees or faculty?
NY State Bar Ethics Opinion 688: A law school clinic against a trustee's client
Short answer: The opinion concluded that a law school clinic's supervising attorney may represent a clinic client against a lawyer who sits on the school's board of trustees or faculty, but only if the attorney reasonably believes that lawyer's role will not affect the attorney's professional judgment and the client consents after full disclosure; where it is not obvious judgment is unimpaired, the conflict cannot be cured by consent.
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.
Plain-English summary
A law school operated a clinical program providing pro bono representation to indigent clients, supervised by attorneys the school employed and staffed by students. The school's board of trustees, many of whom were practicing attorneys in the area, set overall policy. The clinic asked whether it could represent a client adverse to a party represented by a trustee. The committee noted it had not addressed this in New York, and distinguished its 1993 opinion (N.Y. State 643) about a lawyer who serves on a legal services organization's board, which turned on DR 5-110. The present question instead arose from the clinic lawyer's standpoint, so the governing rule was DR 5-101(A).
The committee framed the essential question as whether the clinic attorney's professional judgment for the client would be, or reasonably may be, affected because the opposing attorney might wield power or influence over the clinic attorney's salary, tenure, or working conditions. Whether that is so depends on many factors: the board's involvement in clinic personnel matters, whether the clinic attorney looks to the board for contract renewal or tenure, the particular trustee's role, the relationship between the clinic and the board, the clinic's legal structure, and the significance and contentiousness of the matter. A parallel analysis applies if the opposing lawyer is a faculty member who could influence tenure, contract renewal, or the dean.
The committee concluded that if the clinic attorney reasonably believes professional judgment will not be adversely affected, and it is obvious the attorney can adequately represent the client, the DR 5-101(A) conflict may be solved by the client's consent after full disclosure of the risks. It cautioned that clinic clients may be unsophisticated and may consent for fear of having no other counsel, so the attorney should where possible identify alternative representation and obtain written consent. If it is not obvious that judgment will be unimpaired, meaning there is a reasonable, objectively viewed probability the attorney's interests will adversely affect the advice or services, the conflict is non-consentable and the attorney must decline.
Currency note
This opinion was issued in 1997, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 clinic lawyer ever oppose a lawyer who sits on the school's board?
A: The opinion concluded yes, if the clinic attorney reasonably believes the trustee's role will not affect professional judgment and the client consents after full disclosure.
Q: When is the conflict non-consentable?
A: The opinion concluded the conflict cannot be waived where it is not obvious the attorney's judgment will be unimpaired, that is, where there is a reasonable, objectively viewed probability the attorney's interests will adversely affect the representation.
Q: Does the same analysis apply if the opposing lawyer is on the faculty rather than the board?
A: The opinion concluded a parallel analysis applies, turning on whether the faculty member could influence the clinic attorney's tenure, contract renewal, or standing with the dean.
Background and rules framework
The opinion interpreted DR 5-101(A) (the lawyer's own interests) of New York's former Code, with reference to DR 5-104(A), DR 5-107, DR 5-110, and EC 2-25 (pro bono service). The Model Rule analogues are Rule 1.7 (personal-interest conflicts) and Rule 6.3 (membership in a legal services organization). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (conflict of interest; personal interests)
- MR 6.3 (membership in a legal services organization)
- NY DR 5-101(A); DR 5-104(A); DR 5-107; DR 5-110; EC 2-25
Other opinions cited:
- N.Y. State 643 (1993): lawyer on a legal services organization's board representing an adverse client
- N.Y. State 635 (1992), 595 (1988): the "obviousness" limit on consent under DR 5-101(A)
- Philadelphia Op. 89-29 (1989): board member's limited personnel role and consentability
See also
- NY State Bar Op. 687: Lawyer-insurance broker selling to clients
- NY State Bar Op. 712: Lawyer as trust beneficiary holding client stock
- NY State Bar Op. 711: Selling long-term care insurance to estate clients
Source
- Landing page: https://nysba.org/opinion-688/