Public service and system integrity - Serving in legal servi...

Learning Outcomes

After reading this article, you will be able to explain the ethical rules for lawyers serving in legal services organizations, identify when conflicts of interest arise, and apply the Model Rules to scenarios involving public service. You will also recognize the limits on lawyer participation in organizational decisions and understand the impact on client representation for MPRE-style questions.

MPRE Syllabus

For the MPRE, you are required to understand the professional responsibilities of lawyers engaged in public service, especially when serving in legal services organizations. This includes:

• Identifying when a lawyer may serve as a director, officer, or member of a legal services organization.
• Recognizing the conflict of interest rules applicable to such service.
• Distinguishing between permissible participation and prohibited involvement in organizational decisions.
• Understanding the effect of organizational service on duties to clients.
• Applying the Model Rules to scenarios involving legal services organizations and client representation.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. A lawyer serves as a board member of a nonprofit legal services organization. When must the lawyer refrain from participating in a board decision?
   1. When the decision could materially affect a client of the organization whose interests are adverse to a client of the lawyer.
   2. Only if the lawyer's own client is directly involved.
   3. Whenever the organization serves any clients with adverse interests.
   4. Never; the lawyer may always participate.
2. Which of the following is true about a lawyer serving in a legal services organization?
   1. The lawyer may never serve if the organization represents clients adverse to the lawyer’s own clients.
   2. The lawyer must always withdraw from the organization if a conflict arises.
   3. The lawyer may serve, but must avoid decisions incompatible with their obligations to their own clients.
   4. The lawyer must disclose all client identities to the organization.
3. If a lawyer’s participation in a legal services organization could have a material adverse effect on a client of the organization whose interests are adverse to a client of the lawyer, the lawyer:
   1. Must knowingly participate in the decision.
   2. Must not participate in the decision.
   3. May participate if the client consents orally.
   4. May participate if the organization consents.

Introduction

Lawyers often contribute to the public good by serving in legal services organizations that provide free or low-cost legal help to those in need. The Model Rules encourage such service but impose specific ethical limits to protect both the public and clients. Understanding these rules is essential for the MPRE.

Key Term: Legal Services Organization
An entity, often nonprofit, that provides legal assistance to individuals or groups, typically those unable to afford private counsel.

Lawyers may serve as directors, officers, or members of these organizations, even if the organization represents persons with interests adverse to the lawyer’s own clients. However, the Model Rules set boundaries to prevent conflicts of interest and to ensure that lawyers do not compromise their duties to their own clients or to the organization’s clients.

Lawyer Participation in Legal Services Organizations

The Model Rules permit lawyers to participate in legal services organizations, recognizing the value of public service. This participation may include serving on boards, committees, or as volunteers.

Key Term: Public Service
Professional activities undertaken by lawyers to benefit the community, including work with legal services organizations.

However, a lawyer must not knowingly participate in a decision or action of the organization if:

• The decision would be incompatible with the lawyer’s obligations to a client under the conflict of interest rules, or
• The decision 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.

Key Term: Conflict of Interest
A situation where a lawyer’s responsibilities to one client are materially limited by duties to another client, a third party, or the lawyer’s own interests.

Conflicts of Interest in Organizational Service

Lawyers must be alert to conflicts that may arise when the organization serves persons whose interests are adverse to the lawyer’s own clients. The Model Rules do not prohibit such service outright, but require the lawyer to avoid participating in decisions that would create a conflict.

For example, if a legal services organization is considering whether to accept a case against a corporation represented by a lawyer on the board, that lawyer must not participate in the decision to accept or reject the case.

Key Term: Material Adverse Effect
A significant negative impact on a client’s interests or representation, triggering conflict of interest concerns.

Worked Example 1.1

A lawyer is a director of a nonprofit legal aid group. The organization is considering whether to file a lawsuit against a landlord who is a client of the lawyer’s firm. The lawyer’s own client is not involved in the case, but the landlord is represented by another lawyer at the firm. May the lawyer participate in the decision to file the lawsuit?

Answer:
No. The lawyer must not participate in the decision because it could have a material adverse effect on the representation of the landlord, who is a client of the lawyer’s firm, and the interests of the organization’s client are adverse.

Worked Example 1.2

A lawyer serves on the board of a legal services organization. The board is voting on whether to change intake policies for certain types of cases. The change would not affect any of the lawyer’s clients or any current cases involving the lawyer’s firm. May the lawyer participate in the vote?

Answer:
Yes. If the decision does not affect the lawyer’s own clients or create a conflict under the Model Rules, the lawyer may participate.

Exam Warning

On the MPRE, do not assume that a lawyer must always withdraw from a legal services organization if a conflict arises. The key is whether the lawyer participates in a decision or action that would be incompatible with their obligations to a client or would materially affect a client of the organization whose interests are adverse to a client of the lawyer.

Revision Tip

When answering MPRE questions, look for facts showing the lawyer’s participation in a specific decision or action by the organization that could create a conflict. General membership or service is usually allowed.

Summary

Lawyers are encouraged to serve in legal services organizations, but must avoid participating in decisions that would conflict with their duties to their own clients or materially affect clients of the organization whose interests are adverse to their own clients. The Model Rules do not prohibit service, but require careful attention to conflicts of interest.

Key Point Checklist

This article has covered the following key knowledge points:

• Lawyers may serve as directors, officers, or members of legal services organizations.
• Service is permitted even if the organization serves persons with interests adverse to the lawyer’s clients.
• Lawyers must not participate in decisions or actions of the organization that are incompatible with their obligations to a client.
• Lawyers must not participate in decisions that 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.
• General participation is allowed, but specific conflicted actions are prohibited.

Key Terms and Concepts

• Legal Services Organization
• Public Service
• Conflict of Interest
• Material Adverse Effect