Can a lawyer give pro bono bankruptcy advice to debtors at a legal clinic when the lawyer's firm represents creditors of those debtors?

Plain-English summary

A lawyer asked about potential conflicts for lawyers providing pro bono debtor bankruptcy advice as part of a group neighborhood legal clinic, when the lawyer or law firm may represent creditors of the debtor. The committee was of the opinion that if the lawyer or the firm does not represent any creditors of the debtor client, they do not have a conflict of interest. Conversely, if they do represent such a creditor, they have an actual conflict of interest, requiring compliance with RPC 1.7.

The committee was of the opinion that the lawyer's firm could not avail itself of the screening devices of RPC 1.10(b) to later represent a creditor, and would have to obtain consent for such representation pursuant to RPC 1.7(a)(2) and/or RPC 1.9(a).

The committee suggested that such conflicts might be avoided by requiring the debtor client to list the debtor's creditors before meeting with a prospective attorney. It noted, however, that this might not prevent problems under the conflicts rule, since in many instances debtors may not know the actual identity of their creditors.

Currency note

This opinion was issued in 1994, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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: Is there a conflict in giving pro bono debtor advice at a clinic?

A: The committee said there is no conflict if neither the lawyer nor the firm represents a creditor of the debtor, but an actual conflict requiring RPC 1.7 compliance if they do.

Q: Can the firm screen the clinic lawyer and later take a creditor?

A: No. The committee said the firm could not use the RPC 1.10(b) screening devices for this and would have to obtain consent under RPC 1.7(a)(2) and/or RPC 1.9(a).

Q: How might the clinic avoid these conflicts?

A: The committee suggested requiring the debtor to list creditors before meeting an attorney, while cautioning that debtors often do not know the actual identity of their creditors, so problems might still arise.

Background and rules framework

The opinion applied RPC 1.7 (current-client conflicts), RPC 1.9(a) (former-client conflicts), and RPC 1.10(b) (imputation and screening on a lawyer's departure), each corresponding to the same-numbered ABA Model Rules. The committee treated a clinic lawyer's pro bono debtor as a client whose interests are directly adverse to any creditor the firm represents, and held that the screening path of RPC 1.10(b) was unavailable, leaving informed consent as the route.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.7 (conflict of interest; current clients); Washington RPC 1.7, 1.7(a)(2)
• ABA Model Rule 1.9 (duties to former clients); Washington RPC 1.9(a)
• ABA Model Rule 1.10 (imputation; screening); Washington RPC 1.10(b)

See also

• WA Ethics Op. 1540: Conflict Waiver Must Be Written
• WA Ethics Op. 1529: Taking Referrals From a Defunct Nonlawyer Business

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=626

Original opinion text

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

Advisory Opinion: 1545
Year Issued: 1994
RPC(s): RPC 1.7; 1.9(a); 1.10(b)
Subject: Conflict of interest; bankruptcy lawyer for creditors provides pro bono advice to debtors at law clinic

The Committee reviewed your inquiry concerning potential conflicts of interest for lawyers providing pro-bono debtor bankruptcy advice as part of a group neighborhood legal clinic when the lawyer or law firm may represent creditors of the debtor. The Committee was of the opinion that if the lawyer or his or her law firm do not represent any creditors of the debtor client, they do not have any conflict of interest; conversely, if they do represent such a creditor, they have an actual conflict of interest, thus requiring compliance with RPC 1.7. The Committee was of the opinion that the law firm of the attorney could not avail itself of the "screening devices" of RPC 1.10(b) to later represent a creditor, and it would have to obtain consent for such representation pursuant to RPC 1.7(a)(2), and/or RPC 1.9(a). The Committee suggested that such conflicts might be avoided by requiring the debtor client to list the debtor's creditors before meeting with a prospective attorney. However, the Committee did note that this might not prevent problems from arising under the conflicts rule since, in many instances, debtors may not know the actual identity of their creditors.