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Legal Activism and Client Relations

In the course of day to day business, lawyers may be asked to do things, which - though completely legal and permitted by the Rules of Professional Conduct – conflict with the lawyer’s personal ethical standards or beliefs. It does not take too much imagination to think of several examples. In most cases, the lawyer can simply refuse to handle such matters. But sometimes the pressure of business may require that the lawyer, or members of the lawyers firm, deal with these issues.

The question I want to address is: to what extent may a lawyer ethically advocate for issues of law reform that may conflict with the interests of clients? (But first, a lawyer need not be concerned under the Rules simply because he or she does not agree with a client. Illinois Rule 1.2(b) states: “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”)

As an example, can a lawyer be active in the Sierra Club and represent coal mining interests at the same time? Illinois Rule 6.4, Law Reform Activities Affecting Client Interests, directly addresses the question. Rule 6.4 states:
A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.

Comment 1, however, contains the caveat that “[i]n determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other Rules, particularly Rule 1.7.”

So the general rule seems to be that a lawyer is permitted to engage in law reform activities that may conflict with a client’s interests unless the Rules otherwise prohibit such activities. So where do you draw the line?

Some issues are clear. Under Rule 1.6, a lawyer cannot “reveal information relating to the representation of a client unless the client gives informed consent”. So there can be no telling of tales. [See also Rule 1.8(b), Conflict of Interest: Current Clients, prohibiting using information relating to the representation of a client.]

Other issues are harder. Rule 1.7, the general prohibition of conflicts of interest, states that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” However, Comment 1 to Rule 6.4 states that lawyers “involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization.” So it is unlikely that mere involvement with a law reform group will create a conflict under Rule 1.7.

However, what if there is more activity? Here the Comments to Rule 1.7 plunge the lawyer into a grey area. Somewhere in that grey area is a line past which involvement with law reform activities may create “a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests.” In that case there might be a prohibited conflict. In such a situation the lawyer should read the Rules and Comments carefully and come to a reasoned decision.