Ethics Opinions

ETHICS OPINION NO. 99
OF THE MISSISSIPPI BAR

RENDERED Friday, October 05, 1984

CONFLICT OF INTEREST- An attorney may serve as a member of the Board of Trustees of a non-profit religious corporation and as Attorney for the Board.

The Ethics Committee of the Mississippi State Bar Association has been requested to render an opinion on the following facts:

An Attorney serves as an elected member of the Board of Trustees of a non-profit religious corporation and from time to time is called upon to render legal assistance and offer legal opinions, which services in the past have been considered and received by the Attorney as donated services to the Board. It has now been proposed that the Attorney receive a retainer fee for services rendered, and the question is posed as to the propriety of the Attorney's serving as both a member of the Board of Trustees and as Attorney for the Board.

EC 1-1 of Canon 1 of the Code of Professional Responsibility admonishes that each lawyer has an ethical obligation to do his or her part to assure and assist in making quality representation, advice, and counsel fully available to all who need it. The Committee certainly feels that decision-making Boards of Trustees of non-profit corporations could require the services of lawyers with integrity and competence.

Justice James L. Robertson of the Mississippi Supreme Court has recently reminded the Bar that members of the legal profession have a responsibility and obligation to serve the public:

Accepting of the title "lawyer" carries with it a substantial obligation to render public service. Opportunity to play a leadership role in one's community, state, and nation regularly devolve upon the lawyer . . . Leadership roles in charity, civic, religious, and other non- profit organizations are very much in need of the ability and services most lawyers have to offer. Robertson, "The Lawyer as Hero," 53 Mississippi Law Journal 431 at 442 (September, 1983).

The Committee further notes that Ethics Opinion E-60 of the Kentucky Bar Association, rendered in July 1972, states that when a lawyer's firm represents the Board of Trustees of a College, there is no prohibition per se against the lawyer's accepting an appointment as a Trustee of the College, through individual situations could conceivably arise creating a conflict of interest or impropriety. The Kentucky Opinion stated in part:

This question arose because a member of an auditing firm was in a similar fact situation and felt compelled to resign. There is no parallel between attorneys and CPA's in these situations in that the respective fields involve different duties and obligations with regard to clients. Lawyers have a responsibility demanding undivided loyalty and fidelity to their clients. CPA's have no such fiduciary obligation. Indeed, an auditor is frequently required by the very nature of his duties to be at "opposite poles" from his employer, and to view the employer's fiscal activities with a certain amount of aloofness, possibly even suspicion. Thus, since the respective natures of the service rendered can and must be distinguished, this distinction is the basis for finding no conflict of interest per se for an attorney's serving on a college board of trustees.

Finally, it is noted that DR 2-101(A)(3) concerning publicity and advertising states that a lawyer is not prohibited from identification as a lawyer as well as by name: ". . . in routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer." The Committee is of the opinion that this provision, coupled with the obligation of the legal profession to render public service and legal counsel where needed, suffices to indicate that a lawyer may serve as a director or board member of a non-profit organization and as the attorney for such organization without any conflict of interest per se.