Does representing a homeowners association in a land-use case conflict with the same lawyer enforcing the association's assessments against its members?

Plain-English summary

The committee was asked whether a lawyer's representation of a homeowners association in a land-use matter precluded the lawyer from representing the association in enforcing its assessments and covenants against the association's members. The perceived conflict was that the members the lawyer would be enforcing against are the people whose funds financed, and continued to finance, his fees in the land-use litigation.

The committee answered no. The lawyer's client is the homeowners association. His agreement to represent the association in the land-use matter does not conflict with representing the association in enforcing its assessments and covenants.

On the financial concern, the committee reasoned that although a lawyer may have to turn down employment where the representation may be materially limited by the lawyer's own interests, a lawyer's interest in being paid ought not be considered a limiting factor in the typical case, because no one but the client is paying the fee. The committee located the real ethical consideration elsewhere: the lawyer's duty to avoid misleading the members of the association as to the nature of his relationship with them.

Currency note

This opinion was issued in 1987, before the 2006 revisions to the Washington Rules of Professional Conduct. The conflict rule then numbered RPC 1.7 corresponds to Model Rule 1.7 and was rewritten in the current rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can the association's lawyer enforce assessments against members while also handling the association's land-use case?

A: Per the opinion, yes. The committee was of the opinion that the lawyer's agreement to represent the association in the land-use matter does not conflict with representing it in enforcing assessments and covenants.

Q: Is it a conflict that the members being pursued are the ones funding the lawyer's fees?

A: No. The committee reasoned that a lawyer's interest in being paid ought not be considered a limiting factor in the typical case, because no one but the client (the association) is paying the fee.

Q: What did the committee say the lawyer should watch out for?

A: The committee identified the lawyer's duty to avoid misleading the members of the association as to the nature of his relationship with them.

Background and rules framework

The opinion applies the conflict rule then numbered Washington RPC 1.7, corresponding to Model Rule 1.7, which can require a lawyer to decline employment where the representation may be materially limited by the lawyer's own interests. The committee held that the single client (the homeowners association) meant there was no adverse-client conflict, and that the lawyer's interest in being paid out of member-derived funds did not materially limit the representation in the typical case. The remaining concern the committee identified was the entity-constituent relationship: the lawyer's duty not to mislead members about the nature of his relationship with them.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.7 (conflict of interest; representation materially limited by the lawyer's own interests), corresponding to Model Rule 1.7.

See also

• WSBA Ethics Op. 957: representation adverse to an entity the lawyer formed
• WSBA Ethics Op. 1014: third-party payment of a lawyer's fee and the duty to the client
• ABA Formal Op. 514: advising an organization on constituent legal risk

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=220

Original opinion text

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

Advisory Opinion: 1140
Year Issued: 1987
RPC(s): RPC 1.7
Subject: Conflict of interest; lawyer representing homeowners association in both land use matter and in matters against individual members of association

The Committee has been asked if the fact that a lawyer is representing a homeowners association in a land use matter is reason to preclude the lawyer from representing the association in enforcing its assessments and covenants against the members of the association. The perceived conflict lies in the lawyer's recognition that the members against whom he would be enforcing the association's assessments are people whose funds financed and are continuing to finance his fees in the land use litigation. Has the inquiring lawyer described a conflict of interest which may materially limit his representation of a client? No. The lawyer's client is the homeowners association. His agreement to represent the association in the land use matter does not conflict with representing the association in the enforcement of its assessments and covenants. Although a lawyer may be required to turn down employment if the representation may be materially limited by the lawyer's own interests, a lawyer's interest in being paid ought not to be considered a limiting factor in the typical case. In the typical case, a lawyer's interest in being paid does not conflict with the duty to one's client because no one but the client is paying the lawyer's fee. That appears to be the case submitted by the inquiring lawyer. The ethical considerations of which the inquiring lawyer should be aware arise from his duty to avoid misleading the members of the association as to the nature of his relationship with them.