6.3 Membership in Legal Services Organization

A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:

(a) if participating in the decision or action would be incompatible with the lawyer’s obligations to a client under Rule 1.7; or

(b) 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.


COMMENT

[1] Lawyers should be encouraged to support and participate in legal service organizations. A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer’s clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession’s involvement in such organizations would be severely curtailed.

[2] It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the board. Established, written policies in this respect can enhance the credibility of such assurances.


REPORTER’S NOTES:

Model Rule 6.3 (2002) addresses the issues raised when a lawyer serves on the board of directors of a legal services organization. It is designed to neutralize the risk of disqualification as a result of a conflict-of-interest between a lawyer’s clients and the clients of a legal services organization, in order to encourage attorneys to serve on boards of these organizations. This Rule provides a relaxed remedy for what might be considered a conflict-of-interest because board members of legal services organizations are commonly not involved in decisions about particular cases. Rather, such board decisions generally address broad policy issues and general fiscal matters. If a decision of a legal services board is inconsistent or incompatible with a lawyer/board member’s obligations to his or her client under Rule 1.7, however, the lawyer must recuse himself or herself from taking part in such decision. For example, when a policy matter engenders an apparent conflict for a lawyer/board member (such as the establishment of case acceptance priorities), a lawyer is prohibited from participating in such matter. When however, a lawyer/board member represents one party to a conflict and a staff attorney of the legal services organization represents an opposing party, this may result in a classic conflict-of-interest, as described in Rule 1.7(b). In such a case, the conflict can only be cured by the informed consent of both parties.

Although there is no comparable provision under the Maine Bar Rules, the Task Force thought Model Rule 6.3 (2002) offers lawyers useful guidance, and thus recommended its adoption as written.