Ethics Opinion No. 305
Adopted December 18, 1992; Withdrawn: November 18, 1994
The Board voted to withdraw Legal Ethics Opinion No. 305 which was published in the May 28, 1994 issue of the Bar Journal, pages 1751-1753
If a lawyer is either an elected official or an employee (full or part-time) of a municipality or one of its departments, agencies or courts, may either such lawyer or another lawyer who is associated with the lawyer-official or employee in the practice of law, represent clients in connection with matters pending before the municipality or its departments, agencies or courts?
The inquiry is answered in the negative, for the following reasons.
The Preamble to the Oklahoma Rules of Professional Conduct states:
A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.
This issue reflects directly upon the lawyer’s special responsibility for justice. It is imperative that each lawyer’s judgment be unencumbered by a duty to competing interests; and such actions must be free from speculation regarding motivation.
The public servant, whether elected official or employee, is entrusted with the responsibility of administering and interpreting rules, regulations and ordinances in the community. The public servant acts as a representative of the citizens. The public should be regarded as occupying a position at least equivalent to that of a client of the public servant, who is bound not to accept employment inconsistent with such a relationship.1
Under the former Code of Professional Responsibility, Canon 9 of the Disciplinary Rules provided, “A lawyer should avoid even the appearance of impropriety.” The new Oklahoma Rules of Professional Conduct likewise prohibits representing a client if the representation will be directly adverse to another client.
The Oklahoma Rules of Professional Conduct, Rule 1.7(a), provides:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes representation will not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. (emphasis added)
Likewise, Rule 1.10(a) prohibits partners or associates from representing a client, if any lawyer in the firm, practicing alone, would be prohibited from such representation.
Loyalty and confidentiality are essential elements in the lawyer/client relationship. Loyalty may be compromised or impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for a client because of the lawyer’s other responsibilities of interests. Confidentiality may be impaired, or the client may feel precluded from full and complete discussions with counsel, where the third party’s interest becomes involved. Such a conflict effectively forecloses alternatives which would otherwise be available to the client.
A similar case was addressed by the American Bar Association in its Formal Opinion No. 186 (1938). A lawyer acting as a county attorney in civil matters only, had sought permission to represent and defend parties in criminal cases filed in the same county. In concluding that the lawyer could not represent criminal defendants, the committee opined:
(F) or the county attorney charged with public duties to accept employment adverse to this public employer, puts the county attorney in an unseemly situation likely to destroy public confidence in him as a public officer and bring a reproach to his profession.
A lawyer employed by a city, even though not performing the functions of an attorney, is governed by the same standards of conduct and ethical considerations required of him as an attorney.2 Any employment which may be unethical for one member of a law firm to undertake in a particular situation, does not render such employment ethical simply by permitting a partner or associate of the firm to do so.3
The OBA has also addressed a similar matter involving an attorney employed as an Assistant City Manager. In OBA Ethics Opinion No. 282 (1974), the Board of Governors concluded it was improper for an attorney to practice law before various municipal boards, commissions, courts and council, etc., when the attorney shares offices and associates on a number of cases with another attorney who is employed by the city in question as an Assistant Manager. Although this opinion predates the Oklahoma Rules of Professional Conduct, its sound and cogent reasoning is equally applicable to the matter at hand.4
In some specific cases, the Rules of Professional Conduct provide that a lawyer may represent multiple parties. Such multiple representation may only be authorized upon the express consent of each client, and only after they each have been fully informed of the conflict of interest, and its potential consequences upon the representation. However, an attorney involved in public service such as an elected official or employee of a governmental agency, is governed by a higher obligation than a lawyer facing a conflict of interest between private citizens.
Where an attorney serves in some public capacity, even though not performing the functions of a lawyer, a situation involving a conflict of interest cannot be cured simply by obtaining consent of the client whose interest is adverse to the public authority.5 The American Bar Association in its Informal Opinion No. 855 stated:
Generally speaking, any person in public office, including attorneys, have as their primary duty that of performing the function of the office in a wholly hones, impartial and ethical manner.
Because lawyers are before the public and being compensated by public tax money, they must avoid not only all evil but the mere appearance of it.
In most conflict of interest situations, the lawyer or his firm is under a duty to only inform the parties interested and to whom they represent and hopefully secure all persons’ consent. However, in public affairs it has been held that such consent cannot be utilized by persons standing in a public or quasi public position. (See ABA Formal Opinions 16, 34, 71, 77, 192; Informal C-691.) (emphasis added)
In the issue under consideration, where a lawyer serves a municipality or any of its departments, agencies or courts, as either an elected official or an employee, an impermissible conflict of interest exists in a situation where either such lawyer or such lawyer’s partner or associate represents a person in matters pending before the municipality, its agencies, departments or courts. It is not sufficient to cure the conflict for the official or employee to abstain from voting or other involvement in connection with the issue. By so doing, the public servant abrogates a responsibility and duty to the public, if such voting or involvement would otherwise be appropriate. But even if no involvement with the matter would have been required in any event, the public perception would still remain that not only the lawyer-official or employee, but a lawyer associated with the lawyer-official or employee, may gain some advantage from the knowledge on the part of other elected officials or fellow employees of the municipality or its agencies of this relationship, even if the lawyer-official or employee does not directly participate in or influence the decision.
However, the same policy considerations requiring a “bright line” exclusion do not apply where a lawyer’s involvement consists of part-time, voluntary service of an essentially uncompensated nature (which would allow nominal per-diem payments and expense reimbursement) as an appointee on municipal boards or agencies. Examples would be service on planning or zoning commissions, boards of adjustment, park and library boards, utility trusts, and similar activities. There, the relevant policy considerations must be weighed against the undesirability of discouraging lawyers as a group from participating in an important form of voluntary, essentially uncompensated, community service. In such cases it is sufficient to exclude the lawyer-member and lawyers associated with the lawyer-member from appearing in a representative capacity before the entity in question, but allowing such appearances before other municipal agencies, departments and courts.
This issue is not novel or one of first impression. The general policy of prohibiting the representation of multiple parties with conflicting interests traces its roots to the origins of our profession. The Oklahoma Bar Association, as well as associations in numerous other states, has consistently enforced policies to avoid even the appearance of a party’s rights being impaired, or potentially being impaired, as a result of a lawyer’s duty or obligation to a third person or entity. Although legal ethics opinions from Oklahoma and other states generally predate Oklahoma’s adoption of the Rules of Professional Conduct, such Rules are in no way inconsistent with the conclusions expressed herein or in such earlier opinions.
1 OBA Legal Ethics Opinion No. 279 (1974)
2 OBA Legal Ethics Opinion No. 274 (1973).
3 ABA Formal Opinion No. 33 (1931) and OBA Legal Ethics Opinion No. 282 (1974).
4 See: In Re: Vrdolyak, 560 N.E.2d 840 (Ill. 1990). The Illinois Supreme Court, in a lengthy and well reasoned opinion, has also found a conflict of interest exists under extremely similar facts.
5 OBA Legal Ethics Opinion No. 257 (1969).