State Bar of South Dakota

Ethics Opinion 88-6

May 31, 1988

FACTS

The law office in which you are involved is a nonprofit public interest law firm. It is run by a board of directors appointed by local Bar associations. Recently an attorney has been appointed to the board of directors of the law office and this same attorney represents a defendant in a lawsuit brought by a plaintiff represented by the public interest law firm. The lawsuit has been a difficult and complex case, and the defense attorney/proposed board member has threatened the public interest law firm and the attorney representing the plaintiff with Rule 11 sanctions based on accusations of improper filing and misconduct.

You inquire as to whether the defense counsel who has threatened the public interest law firm with Rule 11 sanctions could appropriately serve as a member of the board of directors while the particular case is pending, or whether such would constitute a conflict of interest, or an appearance of impropriety so as to prevent the defense attorney from becoming a board member.

OPINION

Apparently the By-laws of the corporation are silent on this matter, but we would think that is the place to start your review to determine whether there are specific procedures and instructions contained therein. If not, it might be well for the corporation to amend its By-laws to prevent such obvious conflicts in the future.

It is the general Rule that the governing board of a nonprofit public interest law firm has moral and ethical obligations to the community to determine policy matters, selection of various services the firm will make available, setting priorities and determining the type of cases that will be handled and the types of clients that will be represented. The board does not interfere with an assigned attorney’s independent professional judgment in handling the matters of the client. As such, service on the board of a non-profit public interest law firm does not include involvement in the handling of any particular case. While a member of the board may serve notwithstanding that he might have interests adverse to the client served by the nonprofit public interest law firm, the board member should avoid conflicts of interest with the corporation. That is, of course, subject to Model Rule 6.3 and the comments thereto. See also, ABA formal opinions 324, 334 and 345 regarding members of the boards of legal services programs.

If a board member does represent parties in an action adverse to clients represented by a public interest law firm, extra care must be exercised by the board member to insure that there is no undue influence, conflict of interest or constraint on the full and independent action on behalf of either client, or the appearance of any impropriety.

In the circumstances you set forth, defendant’s counsel has made broad and serious allegations of misconduct against the public interest law firm, which are likely to be a matter of interest and concern to the board of directors. That appearance of conflict of interest and impropriety should prevent the board member from serving. If the defense counsel is presently a member of the board of directors he should withdraw from the board until final resolution of the pending case.

We would also suggest that board members attempt to avoid conflicts of interest with a non-profit corporation such as is involved herein. Additionally, if an attorney has a grievance against the corporation, he or she would be generally better served by resolving it through judicial or bar association activities, and when the matter is completed, he or she would then be eligible for membership on the board.

Robert C. Riter, Jr.
Chair, Ethics Committee