John Levin’s Ethics columns, which are published in each CBA Record, are now in-
dexed and available online. For more, go to http://johnlevin.info/ legalethics/.
BY JOHN LEVIN Legal Reform Activities T he CBA co-hosted a program on policing in Chicago under the con- sent decree recently entered by the District Court for the Northern District of Illinois. Attendees included a number of lawyers representing a variety of differ- ent interests, notably lawyers interested in reforming the criminal justice system.
strued as representation, then the provisions of Rule 1.7 may apply and prohibit the activities. However, Rule 1.7(b) permits dual rep- resentation if: “(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent.” In all likelihood, a lawyer’s involvement with a law reform organization will not require any action by the lawyer other than notifying the organization that clients of the lawyer may benefit from the reforms being considered. If the organization feels uncom- fortable with the lawyer’s involvement, the organization can simply refuse to accept it. In those instances in which a conflict of interest might be inferred, the safest course of action would be for the lawyer to obtain the consent of the both the organization and the affected client to the dual representation. As a footnote, Rule 1.2 provides: “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.” Thus, a lawyer’s reform activities are not limited by the actions or beliefs of his or her clients. In sum, the Rules encourage lawyers to participate in legal reform activities with the caveat to avoid impermissible conflicts of interest.
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Lawyers engaged in reform activities are covered by section 6.4 of the Rules of Profes- sional Conduct ― Law Reform Activities Affecting Client Interests: A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration not- withstanding that the reformmay affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client. While the Rule is seemingly straight- forward, the Comment to section 6.4 adds some complexity, stating in part: “In deter- mining the nature and scope of participation in such activities, a lawyer should bemindful of obligations to clients under other Rules, particularly Rule 1.7.” Rule 1.7 prohibits representing a client if it results in a conflict of interest. While many lawyers involved with organizations engaged in criminal justice reform do so solely out of civic interest, some may have criminal defense practices and some may be prosecutors. If their involvement in reform activities rises to a level that might be con- John Levin is the retired Assis- tant General Counsel of GATX Corporation and a member of the CBARecord Editorial Board.