UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 90-08
Can a private attorney who is a member of the board of directors of the public defender corporation represent an individual on a criminal charge in a situation where the public defender corporation is unable to represent that individual due to a conflict created by the fact that it is representing another individual who is a co-defendant?
Questions:
1. Does membership on a public defender or legal services board by an attorney create a conflict of interest with respect to the representation of a client who may have interests adverse to a client of the organization?
2. What safeguards are necessary to prevent conflicts from arising between the private practice of a board member and the representation by the legal services or public defender staff of their clients?
Summary:
A private attorney who is a member of the board of directors of a public defender or legal services corporation may represent clients whose interest are adverse or potentially adverse to the clients of the agency, provided the attorney insures that in his or her role as board member he or she does not have access to confidential information concerning the corporation's client(s) or is involved in decisions concerning the specific handling of individual cases.
Opinion:
Attorneys are often called upon to serve on the boards of not for profit corporations providing civil and criminal representation to indigents. Were these boards members viewed as members of a firm with respect to these agencies it would have the potential of creating large scale conflict of interest problems since one agency may handle several thousand cases a year generating a mass of adverse parties. Rule 6.3 addresses this problem by holding:
"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, not-withstanding that the organization serves persons having interests adverse to a client of the lawyer." In this instance the co-defendant is the client with a potentially adverse interest to the client of the defender corporation. The rule recognizes that while the attorney gives policy guidance to the corporation the role of corporate directors is not that of a partner in a firm that would have access to privileged information concerning the client or case strategy.
ABA Formal Ethics Opinion 345 (July 12, 1979) in holding that board members of legal services organizations could represent clients adverse to those represented by the program stated:
"On balance, the Committee concludes that the compelling need for resources, not the least of which is strong interest in legal services and participation on program boards by active practitioners, to provide legal services for the indigent outweighs the risk of any possible appearances of impropriety in those cases where adequate representation is provided by board members (or members of their firms) for one side and program staff attorneys for the other. The Committee is confident that there will be no actual impropriety provided the strictures contained in this opinion are followed conscientiously." In that opinion the ABA Standing Committee on Ethics and Professional Responsibility noted that to maintain this ability to represent potentially adverse parties board members must not have access to confidential client information and not be involved in attempts to influence staff of the program on individual cases. In Formal Opinion 334 (August 10, 1974) in ABA stated:
"...the board of directors of a legal services office could require staff lawyers to disclose to the board such information about their clients and cases as was reasonably necessary to determine whether the board's policies were being carried out. Procedures to preserve the anonymity of the client approved in Informal Opinions 1081 and 1287 should be followed. It should be noted, however, that the information sought must be reasonably required by the immediate governing board for a legitimate purpose and not used to restrict the office's activities, and that in many contexts a request for such information by a board may be the practical equivalent of a requirement. Hence, a legal services lawyer may not disclose confidences or secrets of a client without the knowledgeable consent of the client." As a board member of an agency serving indigents, an attorney has the responsibility of obtaining the information necessary to execute his or her fiduciary duty to insure that the corporation is properly fulfilling its purpose while insuring the staff maintains client confidences and its responsibility to exercise their independence or professional judgment as required by Rules 5.4(c) and 1.6.
It should be noted that the private attorney in this instance is by serving on the public defender board meeting the ethical obligation imposed by Rule 6.1:
"A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means."