Permission to Serve

Serving Legal Services Organizations

Permission to Serve

Rule 6.3 of the Model Rules of Professional Conduct grants a permission first and restricts it afterward. 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."¹ Three phrases carry the grant. "Director, officer or member" names governance roles, the seats from which a lawyer helps run the organization rather than handle its cases. "Apart from the law firm in which the lawyer practices" separates the service from the firm's own practice. "Notwithstanding" lets the permission survive the one fact that might otherwise raise an alarm: the people the organization serves may have interests adverse to a client of the lawyer.

The rule belongs to the profession's concern with equal access to justice, and it encourages lawyers to serve organizations that offer legal services to the disadvantaged.² Those programs need lawyers to help manage and govern them as well as to represent people of limited means, and time spent on the managing board of a legal aid or pro bono program is itself a significant form of pro bono publico service, meaning service given for the public good.³ A program that serves many people will sometimes find one of them adverse to a client of a lawyer on its board. If that adversity disqualified the lawyer, the pool of people eligible to lead these programs would shrink sharply, and lawyers in larger firms with diverse clienteles would find board service nearly impossible. The rule clears that barrier by treating board service as a role that does not produce the conflict in the first place.

The mechanism is simple: board or membership service creates no client-lawyer relationship with anyone the organization serves. Comment 1 to Rule 6.3 says so directly: "[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."⁴ The point matters because conflicts of interest of the familiar kind grow out of what a lawyer owes a client. A tenant whom the program defends is a client of the organization, and she is not a client of a director who sits on its board. With no client-lawyer relationship running to the tenant, the director is not torn between two clients merely because the tenant's interests collide with those of a client of the director's firm. A lawyer who serves as a director, officer, or member therefore does not encounter an automatically disqualifying conflict simply because a client of the lawyer is adverse to a person the program represents.⁵

An exam stem that places a lawyer on a legal aid board and then mentions that the organization sues clients of the lawyer's firm is testing whether you will mistake the adversity for the conflict. Standing alone, it is not one, and the analysis should start from the permission. The permission has a boundary, and the boundary follows from the same mechanism that supports it. Board service creates no client-lawyer relationship, so a lawyer who goes further and takes on a person's matter has created one.

In that second scene the lawyer is representing a person rather than serving as a director, and the board permission no longer answers the question. A current client of the firm and a new client of the lawyer now sit on opposite sides, so the ordinary conflict-of-interest rules decide the matter. The office is the same in both scenes, but the role differs. A board seat is permitted whatever the organization's clients are doing, while personal representation is judged by the usual conflict rules. The permission is also qualified by the rule's second sentence, which bars the lawyer from knowingly participating in certain decisions or actions of the organization; the next sections take up those limits. They leave the lawyer in the office and remove the lawyer from particular decisions, so the grant is where the analysis begins and the limits come second.