2014 Formal Ethics Opinion 6: Duty to Avoid Conflicts When Advising Members of Nonprofit Organization

Photo Courtesy of the North Carolina State Bar

View the Formal Ethics Opinion in Full Here.

The Ethics Committee voted to publish 2014 Formal Ethics Opinion 6 at its meeting on July 25, 2014.  The opinion examines the issue of a lawyer offering her services to a nonprofit organization on a volunteer basis.  Members of the nonprofit organization would have the opportunity to consult with the lawyer concerning their legal questions. The members would also have the option to retain the lawyer to represent them in personal matters, thus requiring the lawyer to conduct a conflicts check.  Rule 6.5(a) of the North Carolina Rules of Professional Conduct governs a lawyer’s duty to avoid conflicts in limited legal services programs.  Thus, the question arises whether the lawyer is subject to this rule in the initial consultation, thereby implicating Rules 1.7 and 1.9(a) only if she knows that the representation of the client involves a conflict of interest.

The opinion holds that a lawyer who provides free, brief consultations to members of a nonprofit organization must screen for conflicts prior to conducting consultations.  Rule 6.5 does not apply in this scenario because the Rule concerns circumstances in which it would be infeasible for a lawyer to systematically screen for conflicts of interest, as noted in Comment 1 to the Rule.  Under these hypothetical facts, the lawyer would have advanced notice prior to conducting the initial consultation, allowing her enough time to complete a conflicts check beforehand. Therefore, she has a duty to screen for conflicts of interests.