Contrast With Law Reform Boards

A lawyer on a legal services board must sometimes stand aside from a vote; a lawyer on a law reform board generally need not. Rule 6.4 supplies the permission: a lawyer "may serve as a director, officer or member of 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 The seat looks like the one the earlier sections examined, but the safeguards attached to it differ, and the reason lies in what the lawyer is doing there.

On a reform board, the lawyer speaks and participates as a public citizen, and the conflict-of-interest rules generally do not apply to that activity. A lawyer therefore need not run a conflicts check each time the lawyer speaks or participates on a law reform question.² Loyalty to a client does not change this. The duty of loyalty does not require the lawyer to adopt a client's ideology or political views, and Rule 1.2(b) provides that representing a client "does not constitute an endorsement of the client's political, economic, social or moral views or activities."³ A lawyer ordinarily remains free to take positions on public issues and to join legal reform work without espousing a client's views or weighing how a change in the law might affect that client.⁴

That freedom has an edge. A lawyer's law reform work can still produce a conflict of interest in two ways. First, the lawyer may advance a reform that directly contradicts a client's objectives in an ongoing representation, so that the lawyer's public association with the contrary cause injures that representation. Second, the reform work may breed in the lawyer an antipathy toward the client that impairs the lawyer's ability to represent that client zealously and diligently.⁵ Both injuries fall on the lawyer's own relationship with the client, so the ordinary conflict-of-interest analysis governs them.

A legal services organization has a different structure. It has clients of its own, and a board decision can reach one of them. When a 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, the lawyer must stay out of it.⁶ The inquiry here runs through the organization's client. On a reform board it runs through the lawyer's own client.

Hypothetical Illustration

A lawyer represents a large landlord. She also sits on the board of a law reform organization and, separately, on the board of a legal aid organization.

The reform organization takes up a model statute on tenant remedies that would affect landlords like her client. She may serve and take part in the discussion, because Rule 6.4 permits service even though the reform may affect a client's interests. She need not run a conflicts check each time she speaks on the proposal. Suppose, though, that she began leading a campaign for a measure that directly contradicts the landlord's objectives in a case she is handling for him. A conflict of interest could then arise, because her public advocacy would work against her own client.

The legal aid board then votes on whether to stop funding a tenant's pending defense against that same landlord. She knows the tenant is the organization's client and the landlord is her own. The funding decision could materially harm the tenant's representation, so she must not participate. She cannot cure the problem by announcing her relationship with the landlord and then voting.

The lawyer, the landlord, and the subject matter stay the same across both boards, yet the tests differ. On the reform board, the question is whether the lawyer's advocacy injures her own representation or sours her attitude toward her own client. On the legal aid board, the question is whether the decision could materially harm the representation of someone the organization serves against her client. Nothing in that limit turns on what the lawyer discloses; it turns on what the decision could do.⁷ Two errors recur. One demands abstention from every law reform vote, which overstates the rule, since a lawyer participating as a public citizen need not run a conflicts check each time. The other treats a legal aid funding vote as an ordinary policy discussion, which ignores that an organization client may be materially harmed.

Contrast With Law Reform Boards

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