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                                         11 N.J.L. 2156
                                        170 N.J.L.J. 439
                                        November 4, 2002


Appointed by the New Jersey Supreme Court

OPINION 693 (Supersedes ACPE Opinion 218)

Conflict of Interest -
Non-profit legal assistance organization -
Board member conflict with
client of legal assistance program

    Inquirer is a non-profit legal assistance organization. A board member of that organization also is an executive with a non-profit housing corporation which is a landlord for some of the legal assistance organization's tenant clients. Inquirer asks whether the conflict presented is controlled by RPC 1.7 (a) and (b). The inquiry also implicates the issue of whether Opinion 218 of this Committee, issued September 2, 1971, thirteen years before New Jersey's adoption of the Rules of Professional Conduct, remains applicable. Subject to the following cautions and comments, we conclude that RPC 1.7 (b) controls, and Opinion 218 no longer has applicability.
    While the specific situation presented _ conflict with a board member whose organization is an adverse party to a client represented by the legal assistance program _ is not expressly referenced in RPC 1.7, we must examine whether the circumstance is within the broad language of RPC 1.7 (b). The test is whether the representation “may be materially limited” by “the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests”.
    Board membership on non-profit legal assistance organizations must be consistent with the precepts of In Re Education Law Center, Inc., 86 N.J. 124 (1981), decided under the prior disciplinary rules, as well as current RPCs 5.4(b) (professional independence) and 6.3 (conflicts). In general, this precedent and rules preclude such board members from having any direct involvement in or control over specific legal cases handled by the legal assistance entity.
    Ordinarily, therefore, it might appear that an organization lawyer's representation of a client would not be “materially limited” by the board member's role outlined in the inquiry. We are unable to establish a general rule to this effect, however, because roles of board members can vary from organization to organization, and it is possible to hypothesize situations in which an organization lawyer might feel “materially limited”, by this conflict or even by other connections or conduct of a board member.
    In the first instance, then, the decision as to whether a board member's role _ or in the case of a lawyer board member that member's representation of an opposing client _ “materially limits” a lawyer's representation of a client is left to the sound professional discretion of the lawyer and the legal supervisory staff of the organization, given all the facts and circumstances. If such a limitation is perceived, but the lawyer “reasonably believes the representation will not be adversely affected,” then there must be “full disclosure of the circumstances and consultation with the client” under (2). The client then decides whether to consent to representation given the conflict. We do not choose to extend the appearance of impropriety doctrine expressed in RPC 1.7(c) to these situations. In cases where one of the clients is or is a representative of a public entity, there can be no consent to representation by or on behalf of that public entity. In this regard, we note that Opinion 567 of this Committee (August 15, 1985) remains in full force and effect. For the reasons set forth therein, it is improper for legal representatives of public entities and officials, and those officials themselves, to serve as board members or staff of non-profit legal assistance organizations if those organizations periodically represent clients who have such public entities or officials as adversaries.

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