Ezel / Ethics Opinions / OHBPC
OHBPC June 3, 2016

Are a law-clinic intern's client conflicts imputed to the law firm where the intern also works as a clerk?

Short answer: The opinion concluded that a law student with a Gov. Bar R. II legal intern certificate is engaged in the limited practice of law and bound by the Rules, so conflicts from the intern's current or former clinic clients are imputed under Prof. Cond. R. 1.10 to all lawyers in a private firm where the intern is simultaneously a clerk. Those conflicts can sometimes be cured by screening or client consent, except matters in which the intern had substantial responsibility. Conflicts from the clerk job are not imputed back to the clinic's interns or supervising lawyers. Once the certificate expires and the former intern joins a firm as a lawyer, the intern-practice conflicts are not imputed to the firm, but the new lawyer must be screened from matters in which they had substantial responsibility.

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This page answers the general question as of 2016. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2016
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.
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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 as a PDF) is the authoritative source for any reliance.
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Plain-English summary

A law school legal clinic asked whether conflicts arising from a legal intern's clinic representation are imputed to a law firm where the intern is also employed as a law clerk. The Board explained that a law student holding a legal intern certificate under Gov. Bar R. II is engaged in the limited practice of law (meeting clients, advising, appearing before tribunals) and has sworn to be bound by the Rules of Professional Conduct, so the intern is treated as a lawyer, not a nonlawyer assistant, for conflict analysis under Prof. Cond. R. 1.10.

Because of that, conflicts from the intern's current or former clinic clients are imputed to the lawyers of the firm where the intern clerks. For example, if the intern represents Client A in the clinic and the firm represents Client B who is adverse to A, the intern's conflict imputes to the whole firm under Rule 1.7, and the former-client rule (Rule 1.9) bars the firm from a same or substantially related adverse matter. Many of these conflicts can be cured by timely screening the intern with written notice (Rule 1.10(d)) or by client consent/waiver (Rule 1.10(e)), but not where the firm is adverse to a former client for whom the intern had substantial responsibility in the same matter (Rule 1.10(c)).

The Board added two points. Conflicts from the clerk job do not impute back to the clinic's other interns or supervising lawyers, though the clinic should screen the intern to prevent inadvertent disclosure of confidential information. And once the legal intern certificate expires and the former intern joins a firm as a newly admitted lawyer, the intern-practice conflicts are not imputed to the firm, but the new lawyer must be screened from any matter in which they had substantial responsibility for a former adverse client.

In practice

The opinion holds that, under the Ohio rules as they stood at the time, a certified legal intern is treated as a lawyer for conflict purposes, so the intern's clinic-client conflicts impute to a firm where the intern clerks under Prof. Cond. R. 1.10. Per the opinion, screening or client consent can cure many of these conflicts, except matters in which the intern had substantial responsibility; conflicts do not impute in the other direction to the clinic; and after the certificate expires, a former intern joining a firm as a lawyer triggers screening rather than firm-wide imputation.

Common questions

Q: Is a certified legal intern treated as a lawyer or a nonlawyer for conflicts?

A: The opinion concluded a legal intern is engaged in the limited practice of law and is treated as a lawyer, not a nonlawyer assistant, for conflict analysis under Prof. Cond. R. 1.10.

Q: Do the intern's clinic conflicts spread to the firm where the intern clerks?

A: The opinion concluded yes; conflicts from the intern's current or former clinic clients are imputed to the lawyers of the firm under Rules 1.7 and 1.9.

Q: Can those conflicts be screened or waived?

A: The opinion concluded screening (Rule 1.10(d)) or client consent (Rule 1.10(e)) can cure many of them, but not matters in which the intern had substantial responsibility for a former adverse client (Rule 1.10(c)).

Q: What happens after the intern becomes a licensed lawyer at a firm?

A: The opinion concluded the intern-practice conflicts are no longer imputed to the firm, but the new lawyer must be screened from any matter in which they had substantial responsibility.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 1.7 (current-client conflicts), 1.9 (former clients), and 1.10 (imputation and its screening and consent provisions) (Model Rules 1.7, 1.9, 1.10), read together with Gov. Bar R. II, which authorizes and governs legal interns.

Citations and references

Rules of Professional Conduct:

  • Ohio Prof. Cond. R. 1.7 (conflict of interest: current clients) (Model Rule 1.7)
  • Ohio Prof. Cond. R. 1.9 (duties to former clients) (Model Rule 1.9)
  • Ohio Prof. Cond. R. 1.10 (imputation of conflicts), including 1.10(c)-(e) (Model Rule 1.10)
  • Ohio Gov. Bar R. II (legal intern certificate)

Other references:

  • Restatement (Third) of the Law Governing Lawyers, Section 123
  • Peter Joy & Robert Kuehn, Conflict of Interest and Competency Issues in Law Clinic Practice, 9 Clinical L. Rev. 493 (2004)

See also

Source

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov

PAUL M. DE MARCO RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL

                                                                               HEIDI WAGNER DORN
                                                                                     COUNSEL



                                   OPINION 2016-4
                                  Issued June 3, 2016

        Imputation of Conflicts Involving Current and Former Legal Interns

SYLLABUS: A law student holding a legal intern certificate, issued by the Supreme
Court under Gov.Bar R. II, is engaged in the limited practice of law and bound by the
Rules of Professional Conduct. Conflicts of interest arising out of a legal intern’s current
or former representation of clients are imputed to all lawyers in a private law firm when
the intern is employed simultaneously as a law firm clerk. The conflicts of a former legal
intern, newly employed as a lawyer, are not imputed to the lawyers in a law firm, but
necessitate the screening of the lawyer from any matter he or she had substantial
responsibility.

QUESTION PRESENTED: Whether conflicts of interest arising from a legal intern’s
limited representation of clients in a law school legal clinic are imputed to the lawyers of
a law firm where the legal intern is simultaneously employed as a law clerk.

APPLICABLE RULES: Prof.Cond.R. 1.7, 1.9, 1.10; Gov.Bar R. II.

OPINION:

Background

   A law school legal clinic has asked the Board to consider whether conflicts arising

out of an intern’s legal practice are imputed to the lawyers in a law firm when a legal
intern is employed there as a law clerk. The legal clinic asks whether imputed conflicts
may disqualify both law firms and legal clinics from representing certain clients.

   Ohio law school legal clinics, public defender and prosecutor offices, legal aid, and

legal services organizations may retain law students, who possess a valid intern
Op. 2016-4 2

certificate issued by the Supreme Court of Ohio pursuant to Gov.Bar R. II, to perform
legal services. 1 Legal interns are authorized by Gov.Bar R. II to engage in the limited
representation of persons who qualify for free legal assistance, and the state of Ohio, or a
municipal corporation in the handling and prosecution of civil and certain criminal
matters. With client consent, and the approval of a judicial or administrative hearing
officer, a legal intern may appear before a court or administrative agency without the
presence of a supervising lawyer. A legal intern also is permitted to sign correspondence,
pleadings, and legal documents on behalf of a client, with the designation “legal intern.”
Gov. Bar R. II, Section 4(D). A law student seeking certification as a legal intern swears
or affirms an oath agreeing to be bound by the Rules of Professional Conduct. Gov.Bar
R. II, Section 3. A legal intern is supervised by a lawyer who is admitted or temporarily
certified to practice law in Ohio. Gov.Bar R. II, Section 7.

   Because legal interns are engaged in the limited practice of law, employment as a

clerk with a law firm, during or after their representation of clinic clients, may give rise
to conflicts of interest that must be analyzed and resolved under the Rules of Professional
Conduct.

Analysis

    For all practical purposes, a legal intern is a lawyer engaged in the limited practice

of law and is governed by the Rules of Professional Conduct. Gov.Bar R. II. A legal intern
performs the essential functions of a lawyer, including meeting with clients, analyzing
clients’ legal problems, giving advice, and appearing before tribunals with or without the
supervision of an admitted lawyer. Because a legal intern is bound by the Rules of
Professional Conduct, a legal intern must analyze conflicts of interest that arise between
his or her practice in a legal clinic and employment as a law clerk in a private law firm.2

    1         A law student attending an ABA accredited law school outside Ohio may apply for an

Ohio legal intern certificate. Gov.Bar R. II, Section 3. If an Ohio-certified legal intern is employed as a law
clerk in another jurisdiction or later admitted and working as a lawyer in another jurisdiction, any conflicts
arising from his or her limited practice as a legal intern must be analyzed under the professional conduct
rules of the jurisdiction in which he or she is working or admitted.

    2  Bar Assn. of the City of New York, Opinion No. 79-37 (1980) (treating a clinic student certified

under the student practice rule as a lawyer for the purpose of a conflict of interest analysis because “[h]e
or she will be functioning as a lawyer” and “the clients involved justifiably will regard the student as a
lawyer”). See also, Peter Joy and Robert Kruehn, Conflict of Interest and Competency Issues in Law Clinic
Practice, 9 Clinical Law Review 493 at 511 (2004) (students permitted to practice law under student practice
rules should assume that as clinic students they will be treated as lawyers.)
Op. 2016-4 3

    The legal intern certificate issued under Gov.Bar R. II permits the limited practice

of law with only those entities enumerated in the rule. Gov.Bar R. II, Section 1(B)(3).
However, a law firm clerk, in possession of a legal intern certificate, is not permitted to
practice law, sign pleadings, advise law firm clients, or appear on behalf of a law firm
client before a tribunal, and is not considered a nonlawyer for purposes of analysis under
Prof.Cond.R. 1.10.3

Law firm employment of legal interns

   The employment of a law clerk who is or was engaged in the limited practice of

law as a legal intern raises potential conflict of interest issues for the law firm. When the
law clerk is simultaneously working as a legal intern in a clinic, the law clerk and the firm
must carefully review any conflicts that may exist due to the clerk’s current or former
representation of clients in the legal clinic. This is similar to a process law firms utilize to
analyze conflicts when hiring a lawyer engaged in private practice who has both current
and former clients.

    Conflicts created by a legal intern’s current or former representation of clients in a

law clinic are imputed to the lawyers in a firm, even if the legal intern is employed as a
law clerk. See Prof.Cond.R. 1.10. See Peter Joy and Robert R. Kruehn, Conflict of Interest
and Competency Issues in Law Clinic Practice, 9 Clinical Law Review 493 at 534 (2004) (“law
clinic students who have duties on cases comparable to admitted lawyers may be treated
as lawyers for imputation purposes and not as nonlawyer assistants.”). For example, if a
legal intern is representing Client A in a matter through the legal clinic, and the law firm
where she works as a law clerk is representing Client B, who is directly adverse to Client
A in any matter, the intern’s conflict is imputed to all members of the law firm.
Prof.Cond.R. 1.7(a). Using the same example, the legal intern’s former representation of
Client A equally prevents the law firm from representing Client B in the same or
substantially related matter, when Client B’s interests are materially adverse to former
Client A. Prof.Cond.R. 1.9.

   Conflicts arising from a legal intern’s current or former clinic practice when

employed as a law firm clerk may be resolved under procedures set forth for ameliorating
conflicts through an appropriate screening method. Prof.Cond.R. 1.10(d). When a legal
intern is disqualified personally under Prof.Cond.R. 1.9, the law firm can timely screen
the intern from any participation and give written notice as soon as practicable to the

    3 The Board acknowledges that Prof.Cond.R. 1.10, cmt. [4] addresses conflicts that arise from the

employment in a law firm of nonlawyers, such as paralegals and secretaries, but the Board does not
consider a legal intern simultaneously employed as a law clerk as a nonlawyer for the purposes of conflict
analysis.
Op. 2016-4 4

former client. Prof.Cond.R 1.10(e) also removes the disqualification of the firm if a
current client of the legal intern waives a conflict under Prof.Cond.R. 1.7. However,
conflicts cannot be ameliorated through screening or client consent when the law firm is
representing a person in a matter whose interests are materially adverse to the interests
of a legal intern’s former client, for whom the intern had substantial responsibility in the
same matter. Prof.Cond.R. 1.10(c).

Conflicts arising for legal interns employed as a law firm clerk

    No conflicts are imputed to other legal interns or supervising lawyers of a legal

clinic by virtue of a legal intern’s dual employment as a law firm clerk. Nonlawyer
employees of a law office, including law clerks, owe duties of confidentiality by reason
of their employment, but the duty of confidentiality is not imputed to others so as to
prohibit representation of other clients at a current or subsequent employer like a legal
clinic. Restatement of the Law (Third), The Law Governing Lawyers §123(f) (2016).
Prof.Cond.R. 5.3, cmt. 2. To avoid the inadvertent disclosure of confidential client
information, a legal clinic should implement screening methods sufficient to prevent a
legal intern from participating in a matter being handled by the clinic that he or she also
participated as a law firm clerk.

Conflicts after expiration of legal intern certificate

   After the legal intern certificate expires pursuant to Gov.Bar. R. II, Sec. 4 and the

former legal intern, now a new lawyer, joins a law firm, no conflicts arising from the legal
intern’s limited practice are imputed to lawyers in the firm. However, the new lawyer
must be screened from participation in any matter that he or she had substantial
responsibility for a former adverse client in the same matter. Prof.Cond.R. 1.10, cmt. [4].

CONCLUSION: A legal intern certificate allows a law student to engage in the limited
practice of law subject to the Rules of Professional Conduct. If a legal intern engages in
simultaneous or future employment as a law firm clerk, any conflicts arising from his or
her practice as a legal intern are imputed to the lawyers of the firm. Some imputed
conflicts arising from a legal intern’s practice may be waived with client consent, but
matters in which the legal intern had substantial responsibility cannot be waived under
Prof.Cond.R. 1.10. Conflicts that may arise from a legal intern’s simultaneous
employment as a law clerk in a law firm are not imputed to the legal interns or
supervising attorneys in a legal clinic. Proper screening methods should be employed to
prevent the exchange of confidential information possessed by the law clerk to the staff,
legal interns, and supervising lawyers in the legal intern’s clinic. Once a legal intern’s
certificate expires, and the former law student joins a law firm as a new lawyer, no
Op. 2016-4 5

conflicts from the lawyer’s limited practice as an intern are imputed to the lawyers in the
firm, but screening of the lawyer is required.

Advisory Opinions of the Board of Professional Conduct are informal, nonbinding
opinions in response to prospective or hypothetical questions regarding the
application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Rules of Professional
Conduct, the Code of Judicial Conduct, and the Lawyer’s Oath of Office.

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