Ethics Committee Formal Opinion #1988/9-3
Letterhead Listing – Affiliated Law Firms
February 9, 1989
ANNOTATIONS:
There is no outright prohibition against an attorney who is town moderator also representing clients before the local land use boards of that municipality. However, the attorney should be alert to particular situations which may require that the attorney decline representation of a particular client, call for the appointment of a moderator pro tempore, or both.
Conflict of interest questions must be resolved by resorting to the general conflict of interest rule (Rule 1.7), the listing of prohibited transactions in Rule 1.8, and with respect to potential conflicts in the public sector, the rules governing successive government and private employment and the conduct of lawyer officials (Rule 1.7, Rule 1.8; Rule 1.11; Rule 1.11A).
Generally, a lawyer-moderator may discharge responsibilities to both the town and to clients in matters involving the town’s zoning board of adjustment or planning board, without: 1) direct adversity or material limitation; or 2) entering into prohibited transactions (Rule 1.7; Rule 1.8)
Rule 1.11A would not prevent a lawyer-official from functioning both as an attorney for private individuals appearing before local land use boards of a town and serving as a moderator for the town, in most circumstances. (Rule 1.11A.)
Rule 1.11A(b)(3) speaks only of appointed officials and is inapplicable to elected land use board members. (Rule 1.11A; Rule 1.11A(b)(3)).
A lawyer-official must take great care to avoid conflicts of interest. (Rule 1.7; Rule 1.11A(b)(5).)
A lawyer-official must not state or imply an ability to influence government in derogation of Rule 8.4(d). (Rule 8.4(d).)
QUESTION:
May an attorney who is a town moderator represent clients before the planning board and zoning board of adjustment of the town in which he or she serves as moderator?