Can a lawyer who sits on a public defender organization's board contract to represent clients the office can't take because of conflicts?

Plain-English summary

The inquiry concerned ethical questions raised by persons serving as members of the board of directors of a public defender organization. On the first question, the committee could give no opinion regarding whether nonlawyer board members could also be members of governmental agencies with which the public defender's office commonly has an adversarial relationship, because the Rules of Professional Conduct do not govern the conduct of nonlawyers.

The committee was of the opinion that an attorney may undertake a contractual obligation to represent clients whom the public defender's office may not represent because of conflicts of interest, although the board member's participation in the decisions or actions of the public defender's office must be limited in accordance with RPC 6.3.

Finally, the committee was of the opinion that the pertinent authority for resolving potential conflicts when a board member presides as a judge pro tem in cases involving clients of the public defender's office is the Code of Judicial Conduct, because in that instance the board member would be acting as a judge, not a lawyer, and his or her conduct would not be governed by the Rules of Professional Conduct.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rule then numbered RPC 6.3, governing a lawyer's membership in a legal services organization, corresponds to Model Rule 6.3 and has since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a board member of a public defender office take cases the office can't, due to conflicts?

A: Per the opinion, yes. The committee was of the opinion that an attorney may undertake a contractual obligation to represent clients the public defender's office may not represent because of conflicts of interest.

Q: What limit applies to that board member?

A: The committee was of the opinion that the board member's participation in the decisions or actions of the public defender's office must be limited in accordance with RPC 6.3.

Q: Could the committee address nonlawyer board members serving on adverse government agencies?

A: No. The committee could give no opinion on that question because the Rules of Professional Conduct do not govern the conduct of nonlawyers.

Q: What governs a board member who sits as a judge pro tem on the office's cases?

A: The committee was of the opinion that the Code of Judicial Conduct is the pertinent authority, because in that instance the board member acts as a judge, not a lawyer, and is not governed by the Rules of Professional Conduct.

Background and rules framework

The opinion applies the rule then numbered Washington RPC 6.3, corresponding to Model Rule 6.3, which governs a lawyer's membership in a legal services organization whose interests may differ from those of the lawyer's clients. The committee used RPC 6.3 to limit the board member's participation in the office's decisions, while noting two questions outside the Rules: the conduct of nonlawyer board members, and a board member acting as a judge pro tem (governed by the Code of Judicial Conduct).

Citations and references

Rules of Professional Conduct:

• Washington RPC 6.3 (membership in a legal services organization), corresponding to Model Rule 6.3.

Other authority:

• Code of Judicial Conduct (cited as the authority governing a board member sitting as a judge pro tem).

See also

• WSBA Ethics Op. 1002: a city attorney on the board of a civic body adverse to the city
• WSBA Ethics Op. 990: a firm hiring a lawyer from a public defender office that represented an adverse co-defendant
• WSBA Ethics Op. 934: a prosecutor's conflict in support-enforcement and paternity cases

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=274

Original opinion text

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

Advisory Opinion: 1194
Year Issued: 1988
RPC(s): RPC 6.3
Subject: Conflict of interest: lawyer on board of public defender organization and under contract to represent clients when organization has conflict

The Committee reviewed your inquiry concerning ethical questions raised by persons serving as members of the Board of Directors of your defender organization. The Committee could give no opinion regarding whether non-attorney board members could also be members of governmental agencies with which the public defender's office commonly has an adversarial relationship because the Rules of Professional Conduct do not govern the conduct of non-attorneys.

The Committee was of the opinion that an attorney may undertake a contractual obligation to represent clients whom the public defender's office may not represent because of conflicts of interest, although the Board member's participation in the decisions or actions of the public defender's office must be limited in accordance with RPC 6.3. Finally, the Committee was of the opinion that the pertinent authority for resolving potential conflicts when a Board member presides as a judge pro tem in cases involving clients of the public defender's office is the Code of Judicial Conduct because in that instance the Board member would be acting as a judge, not a lawyer, and his or her conduct would not be governed by the Rules of Professional Conduct.