Opinion #4. Zoning Board Opinion

Issued by the Professional Ethics Commission

Date Issued: October 17, 1979

Question

Lawyer A represented a client before a Town Board of Zoning Appeals whose neighbor had appealed the issuance of a building permit to A’s client. The Board revoked the building permit and Lawyer A took an appeal to the Superior Court.

While the appeal was pending, A’s partner, Lawyer B, was named as Town Counsel for the Town involved in the zoning appeal. Assuming that the Town will be required to engage other counsel to defend the appeal, the Commission is asked whether Lawyer A may continue to participate in the case. Additionally, we are asked if A has an ethical obligation to remain regardless of his own preference unless his client specifically releases him.

Opinion

Bar Rule 3.4(c) is relevant to our response to the first question. That rule provides that:

A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of such employment or if it would be likely to involve him in representing differing interests, except to the extent such employment is permitted by subdivision (d) of this rule.

In our opinion, Lawyer A is involved in “multiple employment” within the meaning of the rule since his partner (and thus, by extension, he) represents the Town on an ongoing basis. Indeed, we note that recognition of the ethical problem seems to have arisen a little late in the game since the multiple employment arose upon Lawyer B’s acceptance of employment with the Town. We cannot tell from the facts whether Lawyer A’s independent professional judgment will be adversely affected in the situation presented by the subtle pressures which may be generated as a result of his partner’s employment as Town Counsel.

Assuming that Lawyer A concludes that his ability to represent his client on the appeal will not be impaired by his partner’s new position, he may proceed with the appeal if the conditions of Rule 3.4(d) are met:

A lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer’s independent professional judgment on behalf of each.

It should be noted that the rule imposes an objective test of “obviousness” which requires more than a subjective judgment by the attorney that his professional judgment will not be impaired by the multiple employment. See Reporter’s Note to Rule 3.4(b). In the present instance, Lawyer A must take into account that although the Town will be represented by other counsel on the appeal, it may nevertheless be apprehensive that its affiliation with Lawyer B will in some way give A an advantage. In addition, A’s client, for obvious reasons, may lose confidence in A’s independence of judgment when advised that A’s partner has become Town Counsel. Although not required by the rule, it would be preferable that the disclosure be in writing.

The Commission believes that Opinion #17 of the Professional Ethics Committee of the Maine Bar Association is not necessarily inconsistent with the conclusion indicated. In that case, it was determined that an attorney whose partner was a Trustee of the State University should not represent faculty members in litigation with the University. In concluding that even with client consent the multiple representation would not be proper, the Committee stated that:

The University is state supported. Its Trustees are appointed by the Governor. The public interest is involved to such a degree that we consider this to be a case where the attorney’s representation of clients with claims against the University would be improper even if the consent of the University and the clients were to be obtained.

The present case is distinguishable because it does not raise, at least in the same degree, the questions of public interest and public visibility which led to the conclusion that the appearance of a conflict affecting public confidence in the system would be presented.

The Committee has also been asked whether, if Lawyer A may continue to represent his client on the appeal, he is ethically bound to do so. Bar Rule 3.5(c) sets forth the grounds upon which a permissive withdrawal from employment is proper. A lawyer may not withdraw on a whim or simply because of a lack of interest in the case. By accepting the case in the first place, he impliedly agrees to see it through to completion except for good cause. It would obviously be unfair to abandon his client to the delay, expense, and prejudice which may result from having to educate some other lawyer regarding the background, legal problems, and advisable strategies to be pursued.

In the present instance, there would be no problem about Lawyer A’s withdrawing if he determined, for the reasons stated above, that it would be unethical for him to pursue the multiple employment. Rule 3.5(c) states that permissive withdrawal is proper where:

(7) His continued employment is likely to result in a violation of these rules.


Enduring Ethics Opinion