When Reform Creates a Conflict

When Reform Creates a Conflict

Rule 6.4 lets a lawyer serve as a director, officer, or member of a law reform organization even though the reform may affect a client's interests.¹ That permission does not switch off the conflict rules. Comment 1 directs a lawyer, in deciding the nature and scope of reform participation, to stay mindful of obligations to clients under the other rules, particularly Rule 1.7.² This section asks when that reminder has teeth: when does reform work that Rule 6.4 would otherwise shelter become a conflict the lawyer must confront?

The permission is the default, and the exception turns on actual harm to the representation. In some circumstances the representation may be materially harmed such that a true conflict of interest has arisen and the lawyer must withdraw.³ Reform work can cause that harm in two ways. The first is a concrete injury to the representation, caused by the lawyer's public association with advocacy contrary to a client's material interests. The second is a personal conflict of interest, created when the lawyer's reform efforts breed antipathy toward the client and impair the lawyer's ability to provide zealous and diligent representation.⁴ The first injury comes from outside the lawyer, through what the lawyer says in public. The second comes from inside, through a loss of the independent judgment the client is owed. The two subsections that follow take them in that order.

Concrete Injury to the Representation

Rule 6.4 shelters reform service, and the Restatement of the Law Governing Lawyers marks where the shelter ends. A comment states that “a lawyer may not publicly take a policy position that is adverse to the position of a client that the lawyer is currently representing if doing so would materially and adversely affect the lawyer’s representation of the client in the matter.”⁵ Two limits are built into that sentence. The client must be a current one, and the effect must fall on the representation in the matter, so a position that merely displeases the client does not qualify. The comment therefore asks what the lawyer's public stance does to the work the client hired the lawyer to do.

The mechanism is association. When a lawyer becomes publicly associated with a position antithetical to the client's on a subject directly related to the representation, the representation may be weakened and the client's faith in the lawyer may be shaken.⁶ The client hired the lawyer to advance specific objectives, and the lawyer is now pushing publicly against them. Nothing adverse need be filed in the client's own matter. The weakness lies in the lawyer's public identification with the opposing side. Comment 1's pointer to Rule 1.7 matters for exactly this reason: the permission protects the lawyer's participation in reform, but it does not protect the harm that participation can do to a particular client's matter.

The cleanest illustration is a lawyer who represents a casino on regulatory compliance while becoming prominently involved in a campaign to abolish gambling in the state. The reform activity necessarily injures the representation, because the lawyer is effectively working to destroy the client's business through changes in the law.⁷ The example contains no adverse filing against the casino, and the lawyer may complete the compliance work competently on paper. The injury comes from the public link between the lawyer and a position that attacks the client's business, on a subject that is also the subject of the engagement.

The two lawyers share a client, a compliance engagement, and a role in law reform. What separates them is how directly the reform position attacks the client's interests in the matter the lawyer is handling. A campaign to abolish gambling aims at the casino's existence, while a study of hearing efficiency aims at no particular client. Between those poles the question stays the one the Restatement comment poses: would this public position, taken by this lawyer while representing this client, materially and adversely affect the representation in the matter?

The third and fourth steps do the real work, because the first two only establish that a client and a reform activity exist. Two instincts fail at those steps. One treats every reform activity that touches a client's industry as a conflict, which would erase the freedom Rule 6.4 grants. The other treats Rule 6.4 as complete immunity, which ignores Comment 1's direction to remain mindful of Rule 1.7. When the harm to the representation is serious, the conflict is a true one, and the lawyer may have to withdraw.⁸

Personal-Interest Conflict

Rule 6.4 protects the lawyer's reform service, and Rule 1.7(a)(2) asks a different question: what has that service done to the lawyer's own loyalty? Under that provision a lawyer has a conflict of interest if there is “a significant risk” that the representation “will be materially limited” by “a personal interest of the lawyer.”¹⁰ The first route to a conflict began with the effect of the lawyer's public advocacy. This second route begins with the lawyer's state of mind.

If a lawyer has a personal stake, interest, belief, position, or relationship that might compromise independent professional judgment on a client's behalf, a conflict of interest exists and the lawyer may not proceed, at least without the client's informed consent.¹¹ The rule asks about risk, and not about visible harm, for a practical reason. Much of diligent representation is discretionary and unobserved: which arguments to press, how hard to negotiate, how much time to give a matter no one is checking. A lawyer who has come to disdain a client could shortchange all of these without a word, and neither the client nor an outsider would see the shortfall until the damage was done.

The firearms illustration shows the route in action. If the lawyer, during the course of reform activities, were to develop repugnance toward firearms retailers, regarding them as unsavory weapons dealers whose trade harms society, a conflict of interest may arise, and the lawyer may be unable to continue representing that client.¹² Picture such a lawyer handling a gun-shop owner's supplier contracts and tax filings. Nothing in the reform proposals would change those matters, and the lawyer has filed nothing adverse. What has changed is the lawyer's feeling toward the client, and that feeling threatens the loyalty the client is owed.

The two lawyers share a client, a set of routine matters, and the same reform goals. The deciding fact is whether the reform work has changed the lawyer's attitude toward the client in a way that undermines loyalty. Holding strong views on firearms policy creates no conflict, because Rule 6.4 protects the freedom to serve in reform. A conflict arises when those views harden into repugnance toward the client's trade and begin to threaten the lawyer's continuing loyalty. Exam stems push toward two wrong answers. One treats any reform activity aimed at a client's industry as a conflict, which would strip Rule 6.4 of content. The other treats Rule 6.4 as an immunity that ends the inquiry, which ignores the personal-interest analysis. Look for statements that the lawyer has come to despise, resent, or lose patience with the client or the client's business, because those facts reveal the personal interest.

Finding a personal-interest conflict does not by itself end the representation. The client is the person whose interests are at risk, and once told about the lawyer's attitude, the client may accept that risk through informed consent.¹³ Consent has a ceiling, however. Rule 1.7(b)(1) requires that the lawyer reasonably believe the lawyer will be able to provide competent and diligent representation, and when the personal interest is so compelling that the lawyer could not hold that belief, the conflict is nonconsentable.¹⁴ Consent can accept a risk, but it cannot create diligence. A client's agreement cannot make a lawyer try harder, and a lawyer who doubts the ability to perform cannot honestly assure the client otherwise. The other conditions of consent in Rule 1.7(b) belong to the general study of conflicts of interest.