ABA-AMRPC S 6.3
Ann. Mod. Rules Prof. Cond. s. 6.3
American Bar Association
Annotated Model Rules of Professional Conduct, Seventh Edition
2011
Copyright © 2011 by the American Bar Association
RULES
PUBLIC SERVICE
Rule 6.3 Membership in Legal Services Organization
Ellen J. BennettElizabeth J. CohenMartin WhittakerCenter for Professional Responsibility
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in
which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client
of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
(a) if participating in the decision or action would be incompatible with the lawyer’s obligations to a client under
Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a client of the
organization whose interests are adverse to a client of the lawyer.
COMMENT
[1] Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a
member of such an organization does not thereby have a client-lawyer relationship with persons served by the
organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer’s
clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization,
the profession’s involvement in such organizations would be severely curtailed.
[2] It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be
affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the
credibility of such assurances.
ANNOTATION
WHAT IS A “LEGAL SERVICES ORGANIZATION”?
The Model Rules do not define “legal services organization,” but the phrase seems to refer to pro bono organizations that
provide legal services for the disadvantaged. First, Rule 6.3 is part of the “public service” group of ethics rules (Rules 6.1
to 6.5). Second, the limiting construction is consistent with the use of the phrase elsewhere in the Model Rules and
comment. See Model Rule 7.2(b)(2) (categorizing legal services organizations together with not-for-profit lawyer referral
services); Model Rule 7.5(a) (“public or charitable legal services organization”); Model Rule 1.0, cmt. [4] (using “legal
aid” interchangeably with “legal services organization”); Model Rule 1.17, cmt. [3] (referring to lawyers “on the staff of a
… legal services entity that provides legal services to the poor”); Model Rule 6.5, cmt. [1] (“[l]egal services organizations,
courts and various nonprofit organizations”); see also Ky. Ethics Op. E-425 (2006) (“generally understood that [Rule 6.3]
applies to public or charitable organizations serving the poor, such as Legal Aid and the Public Defender”).
To encourage lawyers to serve as members, officers, and directors of legal services organizations, Rule 6.3 specifies that
such service is not to be used as ammunition to disqualify them from representing clients in the course of their practices.
Otherwise, membership in legal services organizations would expose lawyers to so many disqualifying conflicts that
recruitment would become very difficult.
Rule 6.3 codifies the holding of an ABA ethics opinion issued the year Congress created the Legal Services Corporation,
which provides funding for most of the nation’s legal services programs. ABA Formal Opinion 334 held that for conflicts
purposes, only the organization’s staff lawyers actually represent clients; board members do not. ABA Formal Ethics Op.
334 (1974). Legal services clients, the opinion noted, do not confer with or confide in board members. See N.Y. State
Ethics Op. 794 (2006) (rule “distinguishes between lawyers who, on the one hand, administer the organization, make
policy, or teach, and on the other hand, the lawyers who represent clients as part of the organization’s rendition of legal
services”); Utah Ethics Op. 06-05 (2006) (lawyers serving on organization’s ad hoc legal advisory panel are not
representing organization’s clients; they are functional equivalent of directors, officers, or members); see also Mo. Formal
Ethics Op. 121 (2006) (as related to unlicensed practice of law, nonprofit public interest organization whose staff lawyers
represent domestic violence victims is not “practicing law” if organization has no role in lawyer-client relationship); cf.
S.C. Ethics Op. 02-04 (n.d.) (nonlawyer board members’ participation in “general organizational policies that identify the
types of cases for which the organization is willing to provide representation” by its staff lawyers is not unlicensed practice
of law).
“PERSONAL” CONFLICTS
Membership in a legal services organization will not create multiple-representation conflicts, but it may still create
material-limitation conflicts. For example, a lawyer’s interest in successful board service may conflict with representation
of a particular client, or the lawyer’s responsibilities to others who serve on the organization’s board may be at odds with
the lawyer’s responsibilities to a client.
Consistent with the social policy goals of the public service rules, Rule 6.3 provides a relatively painless cure for these
material-limitation conflicts: When a lawyer who also belongs to a legal services organization is representing a client and
finds that participating in a particular organizational action or decision would be “incompatible” with the lawyer’s
obligations to that client under Rule 1.7, the lawyer simply is not allowed to participate in that action or decision.
Similarly, if the organization is considering doing something that would be adverse to a legal services client whose
opponent is being represented by the lawyer board member (in the course of his or her practice), the lawyer may not
participate in the organization’s decision. The cure for the conflict, in other words, is to remove the lawyer from the
organization’s decision-making process so the lawyer can continue to represent his or her client. See Utah Ethics Op. 06-05
(2006) (recommending that legal services organizations adopt written policies requiring advisory group members to
identify--and disqualify themselves from participating in-- group actions that could pose conflicts with their duties to their
clients). See generally Esther F. Lardent, Positional Conflicts in the Pro Bono Context: Ethical Considerations and Market
Forces, 67 Fordham L. Rev. 2279 (Apr. 1999); Norman W. Spaulding, The Prophet and the Bureaucrat: Positional
Conflicts in Service Pro Bono Publico, 50 Stan. L. Rev. 1395 (Apr. 1998).
STAFF LAWYER VERSUS BOARD MEMBER
Comment [1] to Rule 6.3 points out that a lawyer who serves on the board of a legal services organization does not
thereby represent the persons served by the organization. However, most decisional law analyzing board membership in a
legal services organization from a conflicts standpoint arises from situations in which a legal services staff lawyer
represents one party, and a private lawyer on the organization’s board represents the opposing party. In examining the
relationship between the staff lawyer and the board member--in the multiple-representation context just as in the personalinterest context discussed above--the key question is the board member’s role in the organization.
ABA Formal Opinion 345, the “other half” of ABA Formal Opinion 334, notes that the relationship between a staff lawyer
and a director of a legal services organization differs from the relationship between two staff lawyers in the same legal
services organization; the critical difference “is the absence of a general opportunity for shared knowledge by the board
member of the affairs of the staff attorney’s client.” ABA Formal Ethics Op. 345 (1979). But even though a board member
may have no contact with a particular case, the board member does have long-term authority over staff salaries and
promotions. More subtly, there may be a “whole network of relationships between a director and the staff … that would
give some pause to the director’s client [opposing] the organization’s [client].” Id.
ABA Formal Opinion 345 thus concludes that representation of opposing parties by a board member and a staff lawyer is
permissible if (1) the board member does not participate in the particular case, (2) there is no infringement of the staff
lawyer’s representation of his or her client, and (3) the board member does not have access to any confidential information
about the case by virtue of board membership. See Me. Ethics Op. 197 (2009) (family law practitioner serving as director
of legal clinic for domestic violence victims may represent client whose adversary is clinic client; directors have no access
to confidential information of clinic clients, and clinic staff not ““affiliated” with lawyer; lawyer must, however, inform
client of relationship with clinic and obtain informed consent if substantial risk that his clinic duties will materially and
adversely affect representation); Or. Ethics Op. 2005-66 (2005) (in “not likely” event that Legal Aid Society board
member’s representation of client whose opponent is represented by Legal Aid Society staff lawyer would be materially
limited by his responsibilities as board member, he may secure client’s informed consent; in any event, he may not
participate in board decisions that could materially adversely affect opponent’s representation); Phila. Ethics Op. 89-29
(1989) (if client consents, staff lawyer with Community Legal Services may represent one parent in dependency
proceeding even though court appoints Community Legal Services board member as counsel for other parent; given
board’s “minimal” involvement in personnel matters, staff member could reasonably conclude that representation would
not be adversely affected); S.C. Ethics Op. 90-08 (1990) (private lawyer on board of legal services corporation may
represent clients with interests adverse to those of staff lawyers’ clients if he is not involved in decisions concerning
specific cases, and has no access to confidential information about corporation’s clients).
In EEOC v. Luby’s, Inc., 347 F. Supp. 2d 743 (D. Ariz. 2004), the court decided that a lawyer’s past membership on the
Arizona Center for Disability Law (ACDL) board of directors did not disqualify her from defending an employer in a
discrimination suit brought by an employee represented by a staff lawyer for ACDL. As a board member, the lawyer did
not have a lawyer-client relationship with the plaintiff, and she had not acquired any confidential information about the
plaintiff during her board service. She received one e-mail message about the case but deleted it unread, and her
resignation from the board ensured that she would not be receiving any further information. The court rejected ACDL’s
argument that her service on the board and the legal committee, which reviewed litigation proposals, gave her access to
information about attorneys’ fees it received in case settlements, which in turn might give her insight into ACDL’s
litigation strategies and likely settlement position:
Rule 6.3 … reflects a strong policy of encouraging attorneys to serve on legal service organization boards provided that
they exercise care not to acquire confidential information about the organization’s clients. Disqualifying Fatica because
she had general information about ACDL litigation strategies would nullify Rule 6.3 because directors virtually always
acquire this kind of information from their organizations.
In B.A. v. L.A., 761 N.Y.S.2d 805 (Fam. Ct. 2003), a husband sought to disqualify the wife’s lawyer, who was president of
the Legal Aid Society, on the ground that the law guardian appointed to represent the couple’s children was a Legal Aid
Society employee. The wife’s lawyer, he argued, invoking DR 5-101 (New York’s provision on conflicts arising from a
lawyer’s financial, business, property, or personal interests), “wields power and influence over the Legal Aid attorney’s
salary, tenure and working conditions.” The court denied the motion to disqualify the wife’s lawyer, but granted a
subsequent motion made on the same grounds to disqualify the law guardian instead. The court ruled that the law
guardian’s professional judgment “reasonably may be influenced since her adversary is president of … the agency by
which she is employed.” The clients, the court noted, were children and so could not give the informed consent that might
otherwise have remedied the problem. See also Lovitch v. Lovitch, 884 N.Y.S.2d 430 (App. Div. 2009) (rejecting claim
that court-appointed lawyer from Children’s Rights Society should have been disqualified from representing children in
custody dispute because father’s lawyer was board member and later president of society).
In 2002, a New Jersey ethics opinion declared that it is not invariably improper for a legal aid lawyer to represent a client
in a matter adverse to a legal aid board member or to a client represented by the board member. N.J. Ethics Op. 693
(2002). The board member in question was also an executive of a nonprofit housing corporation that was the landlord for
some of the legal aid program’s tenant clients. Abandoning its earlier prohibition, the committee held that the materiallimitation analysis of Rule 1.7 must be made on a case-by-case basis. The committee noted that requiring the board
member to refrain from any direct involvement in or control over specific cases normally obviates any material-limitation
conflict. But because roles of board members can vary from organization to organization, the committee could not adopt a
general rule to that effect: “[I]t is possible to hypothesize situations in which an organization lawyer might feel ‘materially
limited’ by this conflict or even by other connections or conduct of a board member.” The opinion warns that “it is
improper for legal representatives of public entities and officials, and those officials themselves, to serve as board
members or staff of non-profit legal assistance organizations if those organizations periodically represent clients who have
such public entities or officials as adversaries.”
End of Document
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