Duties to the Public · 2-4% of the exam
22.2.1Serving in legal services organizations and law reform activities (Rules 6.3, 6.4)
On this page
- Rule 6.3 — Legal services organizations.
- Rule 6.4 — Law reform activities.
Why
Legal services organizations and law reform bodies draw their usefulness from the lawyers willing to sit on them. Treating an outside seat as a conflict whenever a client's interests might be touched would push out the people best equipped to serve, and the organizations would lose the expertise they exist to apply.
Plain English
A lawyer may serve on the board of a legal services organization even when it represents people adverse to the lawyer's clients. Where the lawyer knows that taking part in a specific decision would be incompatible with the lawyer's duties to a client under Rule 1.7, or could have a material adverse effect on the organization's representation of a client whose interests oppose one of the lawyer's own clients, the lawyer steps aside from that decision alone — the board seat survives.
In a law reform body, knowing that a client stands to gain materially calls for disclosure rather than recusal, and the client's identity need not be revealed.
Rule
Rule 6.3 — Legal services organizations.
Rule 6.3 — Legal services organizations. An attorney is permitted to hold a directorship, officer position, or membership in a legal services organization outside the attorney's own firm, even where that organization takes on people whose interests run against the attorney's clients. What the attorney must not knowingly do is take part in a decision that:
Would clash with the attorney's duties to a client under Rule 1.7; or
Could produce a material adverse effect on representation of an organization client whose interests oppose one of the attorney's clients.
"Knowingly" here means actual awareness of the conflict; presumed knowledge does not count. Remedy: step aside from that particular decision — the board seat itself stays.
Example 1
Ex. 1
Dan is a partner at a commercial real estate firm and serves on the board of a nonprofit legal services organization. The organization's litigation committee votes on whether to file a new case on behalf of a residential tenant against a landlord. Dan recognizes the landlord's name — his firm currently represents that landlord in a separate zoning matter. He actually knows of the adversity. He must recuse from the vote on that specific case. He doesn't resign from the board. The remaining members vote without him, and he continues to participate in all other organizational decisions. Shrink Dan's remedy down to the single vote in front of him.
A lawyer may also join a law reform body even when a client's interests are affected. The remedy differs: not recusal, but disclosure.
Rule
Rule 6.4 — Law reform activities.
Rule 6.4 — Law reform activities. An attorney is free to hold a director, officer, or membership role in an organization pursuing reform of the law or its administration, even where such reform may help or hurt a client's interests. If the attorney actually knows that a client's interests stand to gain materially from a decision the attorney is taking part in, that fact must be disclosed — though the client's identity need not be revealed.
Contrast:
Rule 6.3 (legal services orgs): adversity conflict → recusal from the specific decision.
Rule 6.4 (law reform): material client benefit known → anonymous disclosure + continued participation. Recusal is not required.
Example 2
Ex. 2
Elena is an antitrust litigator who serves on a bar association committee drafting revised procedural rules for antitrust class-action cases. While working on a new rule that would streamline class certification, she realizes that a client's pending case would substantially benefit if the rule is adopted. She knows of the benefit. Rule 6.4 doesn't require her to leave the committee. It requires her to disclose to the committee that a client's interests may be materially benefited by the rule under discussion. She makes that disclosure without identifying the client by name. She participates in the vote. Trade the word "recuse" for the word "disclose" and Elena keeps her seat.
Tip
Questions · 2
Q 01ch22-e04
Question 1 of 2 · Rule 6.3
Attorney is a partner at a real estate firm and also serves as a director of a nonprofit legal services organization outside the firm. The organization regularly sues building owners on behalf of tenants who cannot pay for counsel. At a board meeting the directors vote on whether to bring a habitability suit against a particular building owner. Attorney recognizes the owner as a current client of the firm in a separate zoning matter and so knows the two sides are adverse. Attorney abstains from that vote, says nothing to the other directors about the zoning file, and takes part in the rest of the meeting. May Attorney remain a director of the organization?
Keys 1 to 4 choose.