Ethics Committee Advisory Opinion #2005-06/04
By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors.
This opinion addresses whether an attorney may act as both Town manager and Town counsel. The Committee reviewed the situations where the legal advice related to issues implicating actions the attorney took as Town Manager and those where such actions was not implicated. The Committee concluded, that simultaneously holding the position of Town Manager and Town Counsel would make it extremely difficult to comply with Rule 1.7, raises further concerns under Rule 2.1, and may run afoul of either RSA 37:9 and 669:8 and the common law doctrine of incompatibility of offices.
Pursuant to Rule 1.7, the Town Manager/Counsel could not involve himself in issues clearly implicating his personal interests, such as preparation and approval of his own employment contract.
The concerns raised by this inquiry are not limited to those situations in which the attorney’s pecuniary or other interests are directly involved. The Committee is reluctant to conclude that there is a per se unwaivable conflict of interest in acting as Town Manager and Town Counsel for the same town. However, under the harsh reality test, it is difficult to conceive of a situation in which a conflict would not arise.
The Committee raised concerns about Rule 2.1’s requirement that “a lawyer shall exercise independent professional judgment ….” See N.H. Prof’l Conduct R. 2.1, ABA Model Code cmt. (“A client is entitled to straightforward advice expressing the lawyer’s honest assessment.”).
In general, a person who simultaneously holds two positions can avoid a possible conflict of interest by recusing himself or herself in an appropriate situation. See, e.g., Town of Littleton v. Taylor, 138 N.H. 419, 423-24 (1994). In this case, however, the question remains whether Town Counsel would be able adequately to identify all situations in which a possible conflict of interest is presented.
While not an issue arising pursuant to the Rules of Professional Conduct, this situation raises questions concerning the application of RSA 37:9 and 669:8 and the common law doctrine of incompatibility of offices. See N.H. Rev. Stat. Ann. § 37:9 (2004)