Ethics Opinion

Opinion 2004-3

March 2004

Summary: It is normally permissible for a municipal Solicitor to represent the municipality before its Zoning Board of Appeals even though the Solicitor represents the Zoning Board of Appeals in other matters. However, there are circumstances, such as a conflict of interest or a personal relationship with Board members, that may preclude such representation.

Facts: The Mayor of a municipality has requested its Solicitor to represent the municipality before the Board of Zoning Appeals in connection with variances it needs in order to sell land owned by the municipality. The municipal charter provides that the Solicitor is the lawyer for all Boards, Commissions, and officers of the municipality. As such, the Solicitor has previously represented the Zoning Board of Appeals and rendered opinions to it. The Solicitor inquires whether representation of the municipality is permissible under the Rules of Professional Conduct.

Discussion: Under the Disciplinary Rules in effect prior to January 1, 1998, this Committee addressed whether a town counsel could undertake litigation on behalf of a board of selectmen against a subordinate agency at the same time town counsel was representing the agency in an unrelated matter. Opinion 94-2; see also Opinion 89-2. Noting Supreme Judicial Court decisions holding that the conflict of interest rules ought not be applied with the same rigor when government agencies are involved as when private parties are involved, we advised in Opinion 94-2 that such representation was permissible when town counsel had no relevant confidential information of the subordinate agency and the two matters were unrelated, when the agency representation involved a question of law in an appellate setting, and when neither representation involved issues of performance or credibility of the agency members.

We believe that the Supreme Judicial Court would reach the same result under the current Massachusetts Rules of Professional Conduct (MRPC). One indication of the Supreme Judicial Court’s position can be found in Comment [4] of the Scope Note to the Massachusetts Rules of Professional Conduct, which states that “lawyers under the supervision of [certain government law officers] may be authorized to represent several governmental agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients.” Another indication appears in special Massachusetts Comment [8A] to Rule 1.7, which states more broadly that with respect to government lawyers, “public policy considerations may permit representation of conflicting interests in some circumstances where representation would be forbidden to a private lawyer.”

The present inquiry, unlike our prior Opinions, does not involve simultaneous adverse representations. It involves representation of the municipality before the Zoning Board in its adjudicatory capacity when the Solicitor has previously represented the Zoning Board and rendered opinions to it. The first issue is whether the Zoning Board is a current client. We do not know all the facts of the Solicitor’s representations of the Zoning Board of Appeals. However, it seems quite likely from the continuing pattern of representations of the Zoning Board of Appeals and the rendering of opinions to it that the Zoning Board is a current client, even if the Solicitor is not actually doing any work for it at the present moment. See IBM v. Levin, 579 F.2d 271 (3d Cir. 1978); Opinion 89-2. Indeed, the municipal Charter may make the Board a current client without more.

The Solicitor will therefore be appearing as an advocate on behalf of the municipality before a Zoning Board that is the Solicitor’s client on other matters. The Zoning Board will be acting as a “tribunal” when the Solicitor appears before it since it meets the MRPC’s definition of a tribunal as an “adjudicatory body.” Rule 9.1(o). A private attorney could not represent a judge or tribunal and appear before the same judge or tribunal on behalf of another client at the same time, at least not without disclosure to, and consent of, all parties. Where a private attorney is concerned there is also the additional consideration that Section 3E of the Code of Judicial Conduct would seem to prohibit a judge from sitting on a case, at least without consent of the parties, when his or her personal lawyer appeared for one of the parties. That would raise a reasonable fear of partiality, and lawyers are prohibited from knowingly assisting “a judge . . . . in conduct that is a violation of applicable rules of judicial conduct.” Rule 8.4(f).

We believe that this case, however, is different for several reasons. The Solicitor’s representation of the Board and his appearance before it are both contemplated by, indeed mandated by, the municipal Charter. Moreover, the Solicitor represents the Board is in its official and not in any personal capacity, and so any fear of partiality seems less reasonable. Finally, the dual role the Solicitor is filling – representing the agency and appearing before it -- is a common and generally accepted feature of agency lawyering. We conclude, therefore, that it is normally permissible for the Solicitor to appear before a client agency even though the Solicitor represents the agency in unrelated matters.

We say that such an appearance would “normally” be permissible because there might be circumstances where the Solicitor would be prohibited from an appearance before the Board. In our opinion, an appearance would be prohibited by MRPC Rule 1.7(b) if, for example, the Solicitor believes that his relationship to members of the Board would materially limit his ability to attack the Board on an appeal from an unfavorable ruling. The Solicitor is in a better position than the Committee to know whether any such problem exists here.

Another disabling conflict could arise if representation of the municipality required the Solicitor to urge a view of variance law that is contrary either to advice the Solicitor had previously given the Zoning Board or to advice he would give the Board if the Board consulted him about another matter that raised similar legal issues. The Solicitor is the only one with sufficient knowledge to address this problem, for we do not know enough about the facts of the inquiry to know whether any such problem is presented here or whether this is a matter in which the variance law is clear and the issue is the applicability of the law to the facts. If the municipality’s case did require the Solicitor to contradict advice he has given or would give to the Zoning Board in other matters, it seems to us that the conflict could not be cured under MRPC 1.7(a)(1) or 1.7(b)(1).

A final issue might arise if the Zoning Board routinely asks the Solicitor for his view about the applicability of variance law in all cases or if the Solicitor believes that this is the kind of problem where his views would be sought even if there does not seem to be a disputed legal issue. The question would be whether the municipality has the power to direct the Solicitor to represent it and not the Zoning Board in such a situation. Assuming that the municipality is not seeking to direct the Solicitor to attack his own prior work, we believe that such a power contest does not involve a question of professional responsibility but rather a question of substantive law about which this Committee is not permitted to give advice.

Our advice in this Opinion is based on our reading of the Supreme Judicial Court’s opinions cited in Opinion 89-2 and the special language relating to government lawyers that the Supreme Judicial Court has inserted into its Rules. We would only add that we are in somewhat uncharted waters here, and there do not seem to be any clear precedents. Good practice suggests that the Solicitor may wish to make it clear, if it is not clear already, that he is appearing as an advocate for the municipality and is not providing legal advice to the Zoning Board in this matter.

This response is that of a committee without official governmental status.

This opinion was approved by the Massachusetts Bar Association House of Delegates on September 29, 2004 for publication.