Concept

Rule 6.4 Compared With Rule 6.3

Law reform activities affecting client interests

Rule 6.4 Compared With Rule 6.3

Rules 6.3 and 6.4 start from the same premise and part ways on the duty that follows. Each lets a lawyer serve as a director, officer, or member of an organization even though the organization's work touches a client's interests. Rule 6.4 permits service in an organization involved in reform of the law or its administration “notwithstanding that the reform may affect the interests of a client of the lawyer.”¹ Rule 6.3 permits service in a legal services organization “notwithstanding that the organization serves persons having interests adverse to a client of the lawyer.”²

Rule 6.4 attaches a single duty to that permission. When the lawyer knows that a client's interests may be materially benefitted by a decision in which the lawyer participates, the lawyer must disclose that fact, though not the client's identity.³ The rule asks for nothing further. Comment 1, however, reminds the lawyer to be mindful, in setting the nature and scope of the participation, of obligations to clients under other rules, particularly Rule 1.7.⁴

Rule 6.3 attaches a heavier duty: the lawyer steps aside from particular decisions. Under Rule 6.3(a), the lawyer may not knowingly participate in a decision or action of the organization if participating would be incompatible with the lawyer's obligations to a client under Rule 1.7. Under Rule 6.3(b), the lawyer may not knowingly participate 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.⁵ The board seat is not itself the problem. A lawyer who is an officer or member of the organization has no client-lawyer relationship with the persons it serves, and the lawyer faces no automatically disqualifying conflict merely because a client is adverse to someone the program represents.⁶ A rule that barred every such lawyer would leave a shallow pool of leaders, because lawyers in fields like real estate, retail, and health law, and lawyers in larger firms with diverse clienteles, would find service difficult or impossible.⁷ Because the duty attaches decision by decision, a vote that triggers neither clause leaves the lawyer free to take part. Rule 6.3 also carries machinery that the Rule 6.4 text does not mention. Comment 2 recognizes that it may be necessary to reassure a client of the organization that a board member's conflicting loyalties will not affect the representation, and the organization should adopt a written policy so that a lawyer recuses and is separated from further participation.⁸

The difference between the two duties follows the trigger each rule uses. Rule 6.3 responds to conflict with the lawyer's duties to a client and to an adverse effect on a client of the organization, a person the organization represents whose interests oppose the lawyer's client. Recusal removes the lawyer from the one decision where those interests collide and leaves the rest of the lawyer's service intact. Rule 6.4 responds to something else: a possible material benefit to the lawyer's own client. In reform work the lawyer acts as a public citizen and ordinarily represents no client, so the ethics rules reach that conduct less straightforwardly and less strictly.⁹ The Rule 6.4 remedy fits that setting. Disclosure tells the organization that a stake exists, and the rule does not require the lawyer to say whose it is.¹⁰

Hypothetical Illustration

A lawyer who represents a residential landlord sits on the board of a legal services organization and, separately, on a state commission drafting changes to the tenancy statute. At a board meeting, the organization is about to decide how to handle a pending eviction defense brought by a tenant against that very landlord, and the decision could materially adversely affect the organization's client. At a commission meeting, the vote concerns a general amendment on security deposits that would materially benefit landlords, including the lawyer's client. At the board meeting the lawyer must refrain from knowingly participating in the decision about that matter, while remaining free to join the board's other business. At the commission meeting the lawyer discloses that a client may be materially benefitted, without naming the landlord, and may then argue and vote, subject to Rule 1.7.

The lawyer, the client, and the client's stake are identical at the two meetings. What changes the answer is which trigger the decision pulls. The board decision could adversely affect an organization client whose interests oppose the lawyer's client, which is the Rule 6.3(b) trigger, and the commission vote may materially benefit a client, which is the Rule 6.4 trigger. The first calls for recusal from that decision. The second calls for disclosure.

Exam Analysis Steps

Because the rules answer different triggers, the choice between them is best made by asking what kind of organization is acting and what the pending decision does to a client. The steps are these:

Identify whether the organization provides legal services to clients or is involved in reform of the law or its administration.
Ask what the pending decision does to the lawyer's client, whether it could adversely affect a client of the organization whose interests are adverse to the lawyer's client, or may instead materially benefit the lawyer's client.
If the decision falls within Rule 6.3, ask whether participating would be incompatible with the lawyer's Rule 1.7 obligations or could materially adversely affect that adverse organization client. If either is true, recuse from that decision.
If the decision falls within Rule 6.4, ask whether the lawyer knows that a client's interests may be materially benefitted. If so, disclose that fact to the organization without identifying the client.
In either setting, check Rule 1.7 separately, because neither rule displaces it.

Exam answers usually go wrong by crossing the remedies. A student who demands recusal from a law reform vote asks more than the text of Rule 6.4 does, because that rule requires only disclosure. A student who offers mere disclosure when a legal services board is deciding a matter that could materially harm an organization client adverse to the lawyer's own client misreads Rule 6.3, which requires the lawyer to stay out of that decision. Ask first which trigger the decision pulls.

Rule 6.4 Compared With Rule 6.3

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