Ethics Committee Formal Opinion #1988/9-24

Municipal Representation:  Appearances Before Town Land Use Board, Actions Against the Town, or Representation of Criminal Defendants Arrested by the Town’s Police Department by Members of a Firm in Which Another Member of the Firm Represents the Town in its Collective Bargaining Negotiations

August 10, 1989

ANNOTATIONS:

There is no “per se” prohibition preventing an attorney who represents the town in collective bargaining negotiations from either representing (1) clients in land use board matters; (2) clients in unrelated civil litigation against the town or (3) criminal defendants.  The particular facts and circumstances must, however be carefully examined in each case to determine if the attorney could reasonably proceed to represent both clients after proper consultation.

Representation of a client under circumstances directly adverse to another client is prohibited by Rule 1.7 unless the lawyer reasonably believes the representation will not adversely affect the relationship with the other client and both clients consent after consultation and full disclosure.  (Rule 1.7)

Under Rule 1.10(a), each lawyer in an attorney’s firm would be prohibited from undertaking representation of private parties in matters involving a municipal client, whenever one attorney in the firm would be prohibited from doing so under Rule 1.7.  (Rule 1.7; Rule 1.10(a))

The present Rules of Professional Conduct contain no direct counterpart to the prohibitions against the “appearance of impropriety.”  (Canon 9)

A lawyer generally may not represent an individual or entity whose interests are adverse to an existing client even when the matters are wholly separate and distinct.  This is based on the lawyer’s duty of undivided loyalty to the client and the lawyer’s duty to zealously represent the client.  (Rule 1.7)

A lawyer may not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client.  (Rule 1.7(b))

Neither the prohibition against simultaneous representation of clients in matters of Rule 1.7(a) direct adversity nor the prohibition against simultaneous representation of one client involving Rule 1.7(b) material limitation of the lawyer’s responsibilities to another client, are always absolute.  Representation may occur if the lawyer reasonably believes the representation will not adversely affect either client and both clients consent to the dual representation after full consultation and with knowledge of the consequences.  (Rule 1.7(a); Rule 1.7(b).)

QUESTION:

  1. May the inquiring attorney or other members of that lawyer’s firm appear before land use boards of a town which is represented in its collective bargaining negotiations by the inquiring attorney?
  2. May the inquiring attorney or other members of that lawyer’s firm represent private parties in civil actions against the town which is represented in its collective bargaining negotiations by the inquiring attorney?
  3. May the inquiring attorney or other members of that lawyer’s firm represent criminal defendants arrested by a town’s police department when that town is represented in its collective bargaining negotiations by the inquiring attorney?

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