Ethics Opinion

Opinion No. 89-2

February 1989

Summary: Under DR 5-105, a municipal planning board may be a current client of Town Counsel where Counsel advises the board on a "fairly regular though not frequent" basis, even though he is not handling a matter for it at the present moment. Nevertheless, Town Counsel may represent the town's board of selectmen in opposing an appeal prosecuted by the planning board without obtaining the planning board's consent.

Facts: Town Counsel has inquired whether he may represent the town's board of selectmen in an appeal by the town's planning board to the superior court contesting the grant by the selectmen of a special permit to a property owner to conduct some business activities on his property. The planning board is independently elected at a general election. Town Counsel has been retained orally on an annual basis by the board of selectmen. There is no town bylaw specifying his duties but an informal practice has developed that has defined the work to be done under the retainer. This work includes advice given to various town agencies and officials, including the planning board. When, however, the advice sought relates to a matter not covered by the retainer, permission of the board of selectmen is required before Town Counsel undertakes the representation.
Pursuant to the arrangements described above, Town Counsel's firm advises the planning board on a fairly regular, though not frequent, basis. Relatively recently, the firm represented the planning board in litigation unrelated to the present matter, but that litigation had been settled by the time the present matter arose. In connection with the present appeal, the planning board sought permission to hire independent counsel but was turned down. It is being represented by one of its own members, who is an attorney.

Discussion: The relevant disciplinary rule is DR 5-105, which states that:
(A) A lawyer shall decline proffered employment if the exercise of his independent judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests, except to the extent permit
(B) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
The inquiry raises two questions under this rule: (1) Is the planning board a "current" client so that DR 5-105, which relates only to simultaneous representation of current clients, applies? (2) Assuming that the planning board is a current client, should DR 5-105 be applied so as to forbid the representation in this situation, as it would if the planning board and the board of selectmen were private clients?
(1) Question 1 is difficult on the facts presented. A client may be a "current" client for purposes of the conflict of interest rules even if the law firm is not presently handling a matter for the client if the pattern of past representation is sufficiently continuous and recent that the client can be said reasonably to rely on the firm as its present lawyer. See IBM v. Levin, 579 F.2d 271(3d Cir. 1978). The description of the firm's representation of the planning board as involving a pattern of "fairly regular" representation over a period of time may well constitute the planning board a current client for purposes of this rule. We do not have all the facts with respect to the representation of the planning board over the years, and we do not have a sense of the relationship that has been created by the pattern of representation. We therefore cannot resolve the factual issue. But if "fairly regular" connotes a relationship in which the planning board looks to Town Counsel as its regular lawyer, then that seems sufficient to constitute it a current client.
(2) Assuming that the planning board is a current client, then if the planning board and the Selectmen were private clients, DR 5-105(A) and (C) would prohibit the firm from representing the selectmen against the planning board unless it were obvious that the firm could adequately represent the interests of each and unless each consented after full disclosure. There has been no consent by the planning board to the representation of the selectmen.
The principles of DR 5-105 have been spelled out by the Supreme Judicial Court in the private client context. In The McCourt Company, Inc. v. FPC Properties, Inc., 386 Mass. 145 (1982), the court stated that concurrently representing and suing a client in unrelated matters was forbidden if it was done without consent. Moreover, quite recently, the Supreme Judicial Court has recognized that in some cases the "obviousness" test of DR 5-105(C) prohibits an attorney from representing a private client even with consent. Maddocks v. Ricker; Casson, 403 Mass. 592, 597 (1988). This committee has applied these principles in numerous cases involving private clients. See Opinions 80-1, 80-2, 80-10, 81-2, 84-4, and 87-1. Contrast 86-1.
The issue presented by the present inquiry, however, is the extent to which these principles would be applied to lawyers representing government agencies. It seems clear that the Disciplinary Rules, including conflict of interest rules, apply in general to government attorneys. In Pinshaw v. MDC, 402 Mass. 687, 700-01 (1988), the Supreme Judicial Court only recently indicated that conflict of interest rules apply to government lawyers. It noted that a conflict of interest might arise if the attorney general's office represented a governmental employee as a defendant in a civil rights action and then represented his governmental employer in an action opposing the employee's claim for indemnification, even if different lawyers handled the two cases.
The Supreme Judicial Court was even more explicit in Filippone v. Mayor of Newton, 392 Mass. 622 (1984). There a discharged municipal employee sued the mayor and the city. After first undertaking to represent both, the city solicitor withdrew from representation of the mayor. The major issue in the case turned on the city's indemnification ordinance as it applied to the city's determination to provide and pay outside counsel to defend the mayor. The court, however, also discussed the dilemma in which the city solicitor found himself. It first held that the city solicitor's determination that joint representation would lead to a conflict of interest was "appropriate in the circumstances." It then refused to construe the ordinance to defeat its intent to "provide outside counsel where ethical considerations preclude representation by the city solicitor. Given the myriad situations wherein disqualification is an ethical imperative, a contrary reading might mean that public counsel could fulfill the obligations imposed by ordinance only by violating the rules of the court." 392 Mass. at 631.
The Supreme Judicial Court went out of its way in Filippone to discuss the ethical issue and to make it clear that the city solicitor was subject to the conflict of interest rules. But it did not regard the city solicitor as disqualified from representing his primary client, the city, by reason of the fact that an issue for the city in answering the complaint was whether it should take a position adverse to another client, the mayor. That certainly would be an important issue under DR 5-105 were a lawyer for a private corporation to undertake such representation without the consent of a corporate employee-defendant who was also a regular client.
Perhaps even more to the point is Board of Public Works v. Wellesley board of selectmen, 377 Mass. 621 (1977). The Supreme Judicial Court, in holding that a particular municipal board of public works did not have power to retain counsel and litigate against third parties on its own, discussed problems of potential conflict of interest that might arise for town counsel who normally represented the board of public works. Id. at 629-31. It did not, however, suggest that the very case it was deciding, one in which town counsel took a position against the board as to the extent of its power, presented such a problem.
We also know that in the quite special situation of the powers of the attorney general with respect to representation of government officials, the Disciplinary Rules do not apply to lawyers for government in exactly the same way that they apply to lawyers for private parties. In Feeney v. Commissioner, 373 Mass. 359 (1977), the Supreme Judicial Court held that "the parameters of the traditional attorney-client relationship" did not apply to the Attorney General of Massachusetts so that he could prosecute an appeal from a judgment against state officials whom he had represented notwithstanding their objection. The court stated that the attorney general had both a statutory and a common law duty to represent the public interest as the chief law officer of the state. See also Secretary of Administration & Finance v. Attorney General, 367 Mass. 154 (1977).
What are we to make of all this? It seems apparent that in many, perhaps most, situations the Disciplinary Rules, including DR 5-105, are meant to apply to government lawyers in much the same way as they apply to private lawyers. See Opinion 86-2 of the committee, applying the "obviousness" test to attorneys in public service where one client was a municipal agency and the other an individual municipal employee. There is at least one situation, however, exemplified by the Wellesley case and this inquiry, where strict application of the provisions of DR 5-105 might well wreak havoc in the field of public representation. Municipal counsel are often directed to represent numerous public agencies and employees in their official capacities. In a real sense, all those agencies and employees are current clients. If municipal counsel cannot represent the municipality itself any time one of their other municipal clients objects, or if the "obviousness" test is rigorously applied, as in Maddocks, then municipal representation as it is practiced in this state will have to be completely restructured. We are unwilling to give advice with such consequences in the absence of any suggestion from the Supreme Judicial Court that it contemplated such a result when it adopted the Disciplinary Rules. Indeed, we infer from the cited decisions that the court would not interpret the consent and "obviousness" requirements of DR 5-105 as forbidding representation of the board of selectmen in the appeal taken by the planning board from the permit granted by the Selectmen even if the planning board objects. Accord, Committee on Professional Ethics, New York State Bar Assn., Opinion 385 (1975).
We conclude by stating that we have not considered whether the provisions of Chapter 268A have any bearing on the inquiry. Interpretation of that statute raises questions of substantive law that we are forbidden by our rules to address.

Permission to publish granted by the Board of Delegates on March 14, 1989. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.