May a firm take pro bono work from Tribal entities when the firm represents clients litigating against those entities, and what must it weigh?

Plain-English summary

A lawyer asked about accepting pro bono work from Tribal entities while the firm represents clients actively litigating against such entities. The committee understood that the lawyer would not accept representation of a current or former adversary of the firm, and would not be involved in the same factual circumstances as any prior representation of a current or former client.

As to what factors to consider in deciding whether to accept the pro bono work, the committee was of the opinion that, pursuant to RPC 1.7(b), the lawyer should consider the duty of loyalty to existing clients as well as the RPC 1.6 prohibition on revealing confidences or secrets of a current or former client.

As to whether the pro bono client could be obtained from an Indian legal services organization that serves as counsel for a Tribal entity litigating against a current client, the committee was of the opinion that the lawyer would not be prohibited from accepting such representation, provided the lawyer does not represent the actual Indian legal services organization itself that is litigating against a current client.

Currency note

This opinion was issued in 1989, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 firm take pro bono work for a side adverse to its paying clients?

A: Under this 1989 opinion, it is not automatically barred; the lawyer should weigh loyalty to existing clients (RPC 1.7(b)) and confidentiality of current and former clients (RPC 1.6).

Q: Can the pro bono client be referred by the legal services organization opposing a current client?

A: Yes, provided the lawyer does not represent that legal services organization itself, which is litigating against a current client.

Q: What two rules frame the analysis?

A: RPC 1.7(b) (duty of loyalty to existing clients) and RPC 1.6 (confidences and secrets of current and former clients).

Background and rules framework

RPC 1.7(b), Washington's version of ABA Model Rule 1.7, addresses conflicts arising from a lawyer's responsibilities to other clients and requires consideration of the duty of loyalty to existing clients. RPC 1.6 (ABA Model Rule 1.6) protects confidences and secrets of current and former clients. The committee framed the pro bono decision around both duties and drew the line at representing the adverse legal services organization itself.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information)
• ABA Model Rule 1.7 (conflicts of interest: current clients)
• Washington RPC 1.6; RPC 1.7(b)

See also

• WA Ethics Op. 1268: Legislator-Lawyer Suing the State

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=369

Original opinion text

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

The Committee reviewed your inquiry concerning accepting pro bono work from Tribal entities when your law firm represents clients actively engaged in litigation against such Tribal entities. The Committee understood that you would not accept representation of a current or former adversary of your law firm and would not be involved in the same factual circumstances as in any prior representation of a current or former client. In response to your question as to what factors should be considered in deciding whether to accept such pro bono work, the Committee was of the opinion that pursuant to RPC 1.7(b), you should consider your duty of loyalty to existing clients as well as the prohibition in RPC 1.6 prohibiting revealing confidences or secrets of a current or former client. In response to your second inquiry of whether the pro bono client can be obtained from an Indian legal services organization that serves as counsel for a Tribal entity that is litigating against a current client, the Committee is of the opinion that you would not be prohibited from accepting such representation provided that you cannot represent the actual Indian legal services organization itself that is litigating against a current client.