Freedom to Pursue Law Reform

Law Reform and Client Interests

Freedom to Pursue Law Reform

Model Rule 6.4 lets a lawyer serve as a director, officer, or member of an organization involved in reform of the law or its administration, even when the reform may affect a client's interests.¹ The rule's second sentence imposes a disclosure duty when the lawyer knows that a client may be materially benefitted by a decision in which the lawyer participates; the next section takes that duty up. The first sentence is a grant of freedom, and its reasons explain both its reach and its limits.

Law reform covers more ground than the phrase suggests. Lawyers advocate for changes in the law or its administration through public education and contributions to public debate. They draft or comment on proposed court rules, agency rules, and legislation, and on other potentially authoritative sources such as the Restatements adopted by the American Law Institute. They write articles and books that urge reform, prepare amicus curiae briefs for public interest organizations, and lobby legislatures and agencies.²

The first reason for the permission is that a lawyer doing this work is usually not representing anyone. A lawyer who acts as a public citizen, or who participates with a law reform organization, ordinarily has no client in that role, and the ethics rules apply to the conduct less straightforwardly and less strictly than they apply to client work.³ Rule 6.4 confirms that the conflict-of-interest rules generally do not reach this activity merely because a reform proposal could touch a client.

The second reason concerns what loyalty requires. Rule 1.2(b) provides that a lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social, or moral views or activities.⁴ A lawyer who defends a landlord therefore has not adopted landlords' views on tenancy law. The same principle frees the lawyer to take positions on public issues without espousing a client's views and without weighing how a proposed change might affect a client.⁵

Two practical consequences follow. A lawyer need not conduct a conflicts check each time the lawyer speaks or participates as a public citizen on law reform. And a client who is unhappy with that activity ordinarily has no legitimate complaint that the lawyer breached a formal professional duty.⁶ The rule gives the lawyer a sphere of political freedom in which to take part in public life without answering to a client who disagrees with a reform proposal, or who would be affected by it, so long as the proposal does not directly harm an ongoing representation.

The committee member advocates about a statute as a whole, in a setting where no client's matter is being decided. The harder question is where reform activity stops being general participation and becomes something else.

Both lawyers did something that could be called law reform, but only the first falls comfortably within the permission. The freedom described above covers reform that does not directly harm an ongoing representation, and the amicus brief does exactly that. Comment 1 to Rule 6.4 marks the same boundary: in deciding the nature and scope of their participation in reform activities, lawyers should be mindful of their obligations to clients under other rules, particularly Rule 1.7.⁷ The permission is therefore qualified in the ways the following sections develop: by the disclosure duty in the second sentence of Rule 6.4, by the conflict rules of Rule 1.7, and by the client's right to discharge the lawyer.