Ethics Committee Formal Opinion #1988/9-12
Conflicts of Interest: Appearances Before City Land Use Boards or Actions Against the City by Members of a Firm When Another Member of the Firm Serves on the City Council
February 9, 1989
ANNOTATIONS:
The present Rules of Professional Conduct do not contain a mandate to avoid even the appearance of impropriety. (Rule 1.11A; Rule 1.11A(b)(3); DR 9; DR 9-101).
A lawyer who is also a member of a city council is clearly a lawyer-official, who may not appear before the city council nor before any body whose members have been appointed by the city council. (Rule 1.11A; Rule 1.11(b)(3).
Other members of a lawyer-official’s firm may appear before the city council or before governmental bodies composed of members appointed by the city council provided that lawyer-official publicly disqualifies himself or herself and refrains from participating in any related city council matters. This includes the lawyer-official’s public recusal from participation in the appointment process for all boards before whom members of the lawyer-official’s firm may appear. (Rule 1l11A; Rule 1.11A(b)(3); Rule 1.11A(c)).
A lawyer-official would be precluded from representing a client in litigation involving the city in which that lawyer-official sits as a city councilor, due to the lawyer-official’s responsibilities to a “third person”, the city, or by the lawyer-official’s own political interests. This is so, unless the lawyer-official reasonably believes that the representation would not be adversely affected and the client consented after consultation and with knowledge of the consequences. (Rule 1.7; Rule 1.7(b); Terminology-Consultation).
Appearances by members of a lawyer-official’s firm before the governmental body of which the lawyer-official is a part, or before governmental bodies whose members are appointed by the governmental body of which the lawyer-official is a part, should be scrutinized on a case-by-case basis by the attorneys involved to insure that no prohibited conflict exists and that the circumstances do not imply an ability on the part of either the lawyer-official or the members of the lawyer-official’s firm to improperly influence the outcome of a matter. (Rule 1.7; Rule 1.8; Rule 1.11A(c); Rule 8.4(d)).
Other members of a lawyer-official’s firm would be subject to the same limitations as the lawyer-official in representing clients in litigation with a governmental entity. (Rule 1.7; Rule 1.10(a)).
QUESTION:
- Does an impermissible conflict of interest arise when one member of a law firm is serving on the city council and another member of the same firm appears before a land use board in that city?
- Does an impermissible conflict arise when one member of a law firm serves on a city council and another member of the same firm represents the plaintiff in an action against the city?