Recusal in Practice

A lawyer-director has to sort every agenda item into one of two piles: decisions to join and decisions to leave alone. Rule 6.3 draws that line in two paragraphs. Paragraph (a) bars the lawyer from knowingly participating in a decision or action if participating would be incompatible with the lawyer's obligations to a client under Rule 1.7.¹ Paragraph (b) bars knowing participation 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.² Neither paragraph lists the decisions that qualify, so the lawyer must ask, item by item, what the vote does to a particular matter. The work has three parts: separating the decisions the lawyer may join from those the lawyer may not, doing the abstaining properly in an actual meeting, and recognizing what the organization can do to make the separation dependable.

The decisions a lawyer-director may join are the general managerial and policymaking ones: setting the budget, adopting general employee policies and supervision practices, and adopting the organization's goals and initiatives. Such actions may indirectly make legal help available to someone who is adverse to a client of the lawyer, and that indirect effect does not disqualify the lawyer.³ The two paragraphs explain why. Paragraph (a) asks whether taking part would compromise loyalty to a particular client. Paragraph (b) asks about a material adverse effect on the representation of a particular client. A vote on the annual budget or on a staff leave policy is aimed at no one's matter, so it triggers neither. If background adversity between a firm client and the program's clients were enough to require abstention on general governance, the lawyer would sit out nearly every vote and the permission to serve would mean very little.

The lawyer must abstain when the action or decision bears directly on a specific matter in which a client of the program is in conflict with a client of the lawyer. The screen reaches any matter the lawyer knows has put a client of the lawyer, and presumably a client of the lawyer's firm, in an adverse position to a person the program serves.⁴ A decision of that kind has the matter itself as its subject, as when the board votes whether to settle a case, fund it further, or drop it. It is also the kind of decision that could materially affect how the program client is represented, which is the threshold in paragraph (b).

Hypothetical Illustration

A director's firm represents a regional hospital system. At one board meeting the director votes on the annual budget, on a set of general employee policies, and on a new strategic goal of expanding the organization's health-law practice, even though each of those actions may eventually help patients who dispute bills with the hospital. The last item asks whether to authorize a staff attorney to take a pending billing dispute against that hospital to a hearing, and the director knows the hospital is the firm's client. The director says nothing, does not vote, leaves the room while the item is discussed, and later avoids any conversation about the dispute with other directors or staff. The director took part fully in the three general decisions and abstained correctly on the last.

Abstaining means more than skipping the vote, because a vote is only the most visible way to influence a decision. A director who sits through the discussion hears how the program assesses its own case, which is confidential information belonging to a person who is not the director's client and whose opponent is. A director who talks with colleagues in a hallway can shape the outcome without ever raising a hand. The director therefore withholds formal comment and the vote at the meeting, and probably should leave the room when the matter is taken up, both to avoid learning confidential information and to avoid any appearance of influence over the subject.⁵ The director should also carefully avoid discussing the specific matter with other board members, managers, or staff.⁶ The rule's text bars knowing participation in the decision. Leaving the room and avoiding side conversations are the prudent practices that make sure no participation occurs and that no one can later say it did.

The second director cast no vote and still failed to separate from the decision. By staying, the director remained positioned to learn how the program was evaluating its own case, and by asking the managing attorney, the director reached for more. The program client could not be sure that its representation was free of the firm client's pull. The first director's conduct is the model: silence, no vote, absence from the room, and no later conversation about the matter. An answer that treats the missing vote as the whole duty stops one step short.

Because the director's duty turns on what the director knows and on a judgment made in the middle of a meeting, the organization has its own part in making recusal routine. The recommended step is a written policy that gives further direction to lawyers serving as directors, officers, or members, so that they recuse themselves when appropriate, and that sets out procedures for separating the lawyer from further participation.⁷ A policy settled in advance replaces improvised choices about who may speak with the director and who may not. The policy is a recommendation to the organization and no term of Rule 6.3, so a director whose organization has none remains bound by paragraphs (a) and (b) in full. A second tool speaks to the program client directly. A person whose case is opposed by a client of a director's firm may fear that the program's handling of the case will bend toward the director's loyalties. Comment 2 to Rule 6.3 advises that in appropriate cases it may be necessary to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board.⁸ Reassurance carries weight only if the recusal behind it is real, so the director's abstention and the organization's policy come first and the explanation to the client follows from them.

Recusal in Practice

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