Can a lawyer who sits on a legal aid society's board represent a client opposing someone represented by one of the legal aid society's own staff lawyers?

Plain-English summary

Lawyer A serves on the board of directors of a Legal Aid Society. Lawyer A proposes to represent a client in a proceeding where the opposing party will be represented by Lawyer B, a Legal Aid Society staff lawyer. The opinion asks whether Lawyer A and Lawyer B may each represent their respective clients as proposed.

The opinion answers yes, qualified, applying Oregon RPC 6.3 and RPC 1.7. RPC 6.3 lets a lawyer serve as a director, officer, or member of a legal services organization even though the organization serves persons whose interests are adverse to the lawyer's client, but it bars the lawyer from knowingly participating in an organization decision that would be incompatible with the lawyer's RPC 1.7 duties to a client, or that could have a material adverse effect on the organization's representation of a client whose interests are adverse to the lawyer's client.

The opinion concludes that, in the ordinary case, Lawyer A's board responsibilities are not likely to materially limit Lawyer A's representation of the client within the meaning of RPC 1.7(a)(2), and likewise Lawyer B's representation of the legal aid client is not likely to be limited by Lawyer B's responsibilities to the board. If such a limitation did exist, the lawyers could still proceed if each affected client gave informed consent, confirmed in writing, as RPC 1.7(b) requires.

The opinion adds that Lawyer A must remain mindful of the RPC 6.3(b) obligation not to participate in board decisions that could have a material adverse effect on Lawyer B's representation of the legal aid client in the matter. As long as the conditions in these rules are met, both lawyers may proceed.

In practice

The opinion holds that a lawyer's service on a legal aid society's board does not, in the ordinary case, disqualify the lawyer from representing a client opposite a legal aid staff lawyer, nor disqualify the staff lawyer. The analysis turns on RPC 1.7(a)(2): whether the board role creates a significant risk of materially limiting either representation. Where it does not, both may proceed; where it might, the lawyers may still proceed with each affected client's informed consent, confirmed in writing. The board-member lawyer must also abstain, under RPC 6.3(b), from board decisions that could materially affect the staff lawyer's representation in the matter.

Common questions

Q: I sit on a legal aid board. Can I take a case against a client represented by that legal aid office?

A: Yes, qualified. The opinion concludes that in the ordinary case the board role does not materially limit the representation, so the lawyer may proceed, subject to the RPC 1.7 conflict check and the RPC 6.3(b) abstention duty.

Q: Does the legal aid staff lawyer have a conflict because a board member is on the other side?

A: Not in the ordinary case. The opinion concludes the staff lawyer's representation of the legal aid client is not likely to be materially limited by the staff lawyer's responsibilities to the board.

Q: What if there is a material limitation in a particular case?

A: The lawyers may still proceed if each affected client gives informed consent, confirmed in writing, as RPC 1.7(b) requires.

Q: What must the board-member lawyer avoid?

A: Per RPC 6.3(b), the board member must not participate in any board decision or action that could have a material adverse effect on the staff lawyer's representation of the legal aid client in the matter.

Background and rules framework

The opinion interprets Oregon RPC 6.3 (membership in a legal services organization) and RPC 1.7 (current-client conflicts of interest), corresponding to Model Rules 6.3 and 1.7. RPC 6.3 permits board service for a legal services organization that serves clients adverse to the lawyer's own clients, while channeling the limit into RPC 1.7's material-limitation test and into a duty to abstain from conflicting board decisions.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 6.3 / Model Rule 6.3 (membership in a legal services organization)
• Oregon RPC 1.7 / Model Rule 1.7 (conflicts of interest, current clients)

See also

• NYSBA Ethics Op. 489: Legal Service Organization Adverse Party
• NYSBA Ethics Op. 643: Conflicts Panel for a Legal Services Organization

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-66.pdf