NYSBA May 8, 1997

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?

Short answer: The opinion concluded yes, but only if the clinic attorney reasonably believes the trustee's or faculty member's role will not affect the attorney's professional judgment and, after full disclosure, the client consents; if it is not obvious judgment is unimpaired, the conflict is non-consentable and the attorney must decline.

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This page answers the general question as of 1997. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

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 Not binding precedent.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 on this page) is the authoritative source for any reliance.

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

Source

Landing page: https://nysba.org/opinion-688/

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