State Bar of South Dakota

Ethics Opinion 86-2

July 30, 1986

FACTS

You were recently elected to serve on the local school board and as your office has previously performed services for teachers, certain questions have arisen. They are, with the appropriate responses, as follows: 

1. Whether other lawyers in the office may continue to represent teachers in matters before the board where the engagement was taken prior to your having been elected? 

The Committee believes that your firm is precluded from representing teachers before the School Board while you are a member of the School Board and sitting on the same. Where the engagement was taken prior to you having been elected, if the client consents and the number is small, we would permit your firm to complete that representation so long as you excuse yourself from the proceedings. As regards new clients, it is our view that your firm may not accept clients with matters to be submitted to the Board, so long as you serve thereupon. 

2. Whether other lawyers in the office should accept engagements on new matters which are expected to be brought before the Board for Board action? 

The Committee would answer that, no. If you are a member of the Board, your partners should not be representing third parties before it. 

3. Whether the answer to one or two would be different if you were to abstain from taking part in the matter as a Board member? 

As mentioned above, the Committee felt that if the engagement had taken place prior to your having been elected to the Board, there might be a basis for a distinction. If the number of cases is small, such as one or two, the interest of justice and client’s concern may be best served by your firm continuing to represent the same, but you excusing yourself from taking any part in the proceedings involving those clients. If, however, the number is large your firm should probably not be involved in representation. If your firm is going to represent the parties in those couple of cases that were commenced prior to your election, the matter should be discussed with the client, and the client be given an opportunity to secure other counsel and have the benefit of action by the Board with the full complement of members. As regards new clients, the Committee felt that mere exclusion of yourself from the Board would not adequately handle the situation, and as such, your firm should not represent parties before the School Board. 

You should see DR 5-105(d), which supports the conclusions above expressed. 

Robert C. Riter, Jr.
Chair, Ethics Committee