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New Jersey’s legal ethics regulators have jettisoned a 31-year-old stricture that disqualified Legal Services lawyers from representing a client against a public entity an employee of which serves on the legal services board. In Opinion 693, the Advisory Committee on Professional Ethics adopts a more flexible approach, permitting the representation if the client consents and if the conflict of interest has no adverse impact. The ACPE found that Rule of Professional Conduct 1.7(b) governs the situation. The rule bars representation that may be “materially limited” by the lawyer’s responsibilities to another client or to a third person, unless the lawyer “reasonably believes the representation will not be adversely affected” and the client consents after full disclosure. As the committee explained, “roles of board members can vary from organization to organization, and it is possible to hypothesize situations in which an organization lawyer might feel ‘materially limited,’ by this conflict or even by other connections or conduct of a board member.” The issue was left to “the sound discretion” of the legal services lawyer and his or her supervisors. The ultimate arbiter may be Melville Miller Jr., executive director of Legal Services of New Jersey, who is, coincidentally, chairman of the ACPE. Miller’s committee also expressly rejected applying the appearance of impropriety rule, RPC 1.7(c), to the scenario. “Given the difficulty of finding representation for people, some hard and fast rule that you shall never represent doesn’t make a lot of sense. It means that the person might often go unrepresented,” William Matrician, who heads Morris County Legal Services, says in support of Opinion 693. He notes that “board members are considerably removed from the ongoing day-to-day operations of the program, with no access to files.” Cases where a board member has represented the other side occur infrequently, says Matrician. The response has been to line up another attorney to take the case pro bono. “Lawyers should be more comfortable serving on legal services boards now,” knowing they are less likely to create conflicts, says Michael Griffinger, a past chairman of Essex County Legal Services and a partner with Gibbons Del Deo Dolan Griffinger & Vecchione in Newark. While the predecessor ruling, Opinion 218, extended disqualification to any litigation against the lawyer’s firm, the ACPE declined in Opinion 693 to adopt a general rule about whether it would materially limit a legal aid lawyer’s representation to litigate against a trustee or someone from the trustee’s firm.

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