Opinion 89-29
(1989)

You have raised certain questions relating to a possible conflict of interest arising out of the following situation:

We understand that, as a staff attorney for Community Legal Services (CLS), you represent a parent in a child's dependency proceeding. Those proceedings are expected to be subject to court review for a period of years. The other parent, who opposes your client's position, has obtained court-appointed counsel. That other attorney is a member of the Board of Trustees of CLS. The Board member has no specific Board duties concerning CLS personnel. In general, the CLS staff and Board members have no contact with each other, and you have only met the Board member involved briefly at a CLS holiday party.

You have inquired whether, in this situation, you have a conflict of interest. Further, you have asked whether, in the event such a conflict is present, full disclosure to and consent by the parties would permit the continued representation. If not, you have inquired whether one or both attorneys must withdraw from the case.

Discussion


An analysis of these questions should begin with Rule 1.7 of the Rules of Professional Conduct as adopted in Pennsylvania. Paragraph (b)1 of Rule 1.7 provides as follows:

A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after full disclosure and consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

Pursuant to this rule, unless certain conditions are met, you may be disqualified from continuing to represent your client.

Subject to the conditions stated in the rule, Rule 1.7(b) prohibits a lawyer from representing a client "if the representation of that client may be materially limited . . . by the lawyer's own interest." (emphasis added). Here, it appears that your representation of the client comes within this description, since your opposing counsel is a member of the board2 that, we assume, has ultimate responsibility for approving your employment, including salary and other terms. Assuming this is correct, you may not continue to represent your client unless both conditions stated in paragraph (b) of Rule 1.7 are fulfilled.

Those conditions require (1) that you reasonably believe the representation will not be adversely affected by the circumstances, and (2) that your client consents after full disclosure and consultation. Given the apparently limited involvement of the Board member in CLS personnel matters, and absent any other facts suggesting that he or she has or will have an opportunity directly to affect your employment, it would appear that you could reasonably believe that the representation will not be adversely affected under the circumstances. You must, however, consider the matter and independently decide whether that is in fact your belief. If it is, you should make full disclosure to your client and obtain his or her consent to your further representation.

In the event the two conditions discussed in the preceding paragraph are met, you may continue representing the client. Otherwise, you are required by Rule 1.16(a) (1) of the Rules of Professional Conduct to withdraw from further representation of the client. This is mandatory unless the court orders you to continue the representation. Rule 1.16(c). If you are required to withdraw, you should also consider the duties which Rule 1.16(d) imposes under the circumstances.

Notes

  1. Paragraph (a) of the Rule concerns circumstances where a lawyer has two clients with differing interests. This paragraph thus appears not to apply to the inquiry since only one of the parents is a CLS client.

  2. This opinion addresses only the issues directly affecting you. Consequently, it does not address what duties or conflicts of interest, if any, apply with respect to counsel for the other parent. See Rule 6.3 of the Rules of Professional Conduct (membership in legal services organization). See also Estep v. Johnson, 383 F. Supp. 1323 (D. Conn. 1974) (attorney required under previous Code of Professional Responsibility to withdraw as counsel or resign from board of legal services agency).

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.