Opinion #188. Conflict Analysis For Attorney Member of Municipal Planning Board

Issued by the Professional Ethics Commission

Date Issued: February 2, 2005

Question

An attorney who was recently appointed to a municipal planning board has asked for guidance regarding his participation in certain matters before the planning board and his ethical obligations under the Bar Rules, specifically Bar Rule 3.2(d)(1) which reads as follows:

A lawyer who holds public office shall not . . . [u]se that public position to influence, or attempt to influence, a court or other public body engaged in adjudicatory proceedings to act in favor of the lawyer, any partner or associate, or any lawyer affiliated with them, or of a client of any of them.

The lawyer’s request came in the form of a series of seven hypothetical questions based on these simple introductory facts:

Lawyer A is a member of Law Firm X and also is a member of a municipal planning board. The planning board reviews a variety of land use-related applications, including site development plan applications, conditional use applications and subdivision applications. Lawyer B is a member of Law Firm X but is not a member of the planning board.

Initially, for purposes of analysis under Rule 3.2(d)(1), the Commission concludes that as a member of a municipal planning board, Lawyer A “holds public office” on a “public body engaged in adjudicatory proceedings.” Furthermore, the Commission would note that any planning board member who engages in deliberations or votes on an application before the board is, almost by definition, using his or her public office to influence or attempt to influence that public body. That is, in fact, the role of a member of a public body engaged in adjudicatory proceedings. The first six hypothetical questions we are asked to consider concern Lawyer A’s role as a public official rather than his/her professional role as an attorney when not sitting as a public official. [1]

Question 1: Lawyer B represents Client C on an application presently pending before the planning board. Does Bar Rule 3.2(d)(1), or any other Bar Rule provision, prohibit Lawyer A from participating in the planning board's consideration of, and voting on, Client C's application?

We answer the first hypothetical question in the affirmative. The question concerns a planning board application brought by a party represented by Lawyer B, a partner or associate of Lawyer A. If Lawyer A participates in the discussion of that application, he would be using his public position as a planning board member to influence, or at the very least attempt to influence, the planning board. Similarly, merely voting on the application, even absent other participation, would be a use of his/her public position to influence the planning board as a public body. While the Rule only prohibits participation where the influence or the attempt to influence would be in favor of the application brought through Lawyer B, it is hard to visualize any participation, other than unwavering and unreserved opposition to the application, that would not be seen as an attempt to influence the planning board in favor of Lawyer B’s position.

It may be impossible for a planning board member to know at the outset of deliberations whether his or her initial opposition to an application may waver during the debate, and in Opinion No. 45, the Commission noted how difficult it can be to determine whether even a non-participating lawyer/public official “has exercised a subtle influence over the decisions of the public bodies of which the lawyer is a member.” Rather than tread on this dangerous ground, Lawyer A should simply recuse him or herself from participation in or voting on the application.

Question 2: Lawyer A represents Client C on other matters. Client C has an application presently pending before the planning board but either is unrepresented or is represented by counsel outside of Law Firm X on the application. Does Bar Rule 3.2(d)(1), or any other Bar Rule provision, prohibit Lawyer A from participating in the planning board's consideration of, and voting on, Client C's application?

The Commission also answers this question in the affirmative. The only factual difference between this hypothetical and the one presented in Question 1 is that the application before the planning board is brought by a current client of Lawyer A rather than a partner, associate, or affiliated lawyer. The prohibition in Rule 3.2(d)(1) is not limited to matters in which Lawyer A’s partners, associates, or affiliated attorneys participate before the planning board. It applies equally when the participation is by clients of any of those attorneys. The hypothetical implies that Client C is a current client of Lawyer A, as opposed to a former client, and the Commission reads Rule 3.2(d)(1) as referring solely to current clients of Lawyer A or of any partners, associates, or lawyers affiliated with Lawyer A.

Question 3: Lawyer B represents Client C on other matters. Client C has an application presently pending before the planning board but either is unrepresented or is represented by counsel outside of Law Firm X on the application. Does Bar Rule 3.2(d)(1), or any other Bar Rule provision, prohibit Lawyer A from participating in the planning board's consideration of, and voting on, Client C's application?

The Commission also answers this question in the affirmative. Rule 3.2(d)(1) makes no distinction between a client of Lawyer A and a client of a partner, associate, or affiliate of Lawyer A. Again, the question presumes, and the Rule covers, only current clients of Lawyer B.

Question 4: Lawyer B represents Client D in opposition to an application presently pending before the planning board. Does Bar Rule 3.2(d)(1), or any other Bar Rule provision, prohibit Lawyer A from participating in the planning board's consideration of, and voting on, the application to which Client D is opposed?

The Commission also answers the question in the affirmative. The Rule prohibits influencing or attempting to influence the public body in favor of the lawyer, any partner or associate, or any lawyer affiliated with them, or of a client of any of them whether they are presenting, supporting, or opposing an application.

Question 5: Lawyer A represents Client D on other matters. Client D is opposed to an application presently pending before the planning board but either is unrepresented or is represented by counsel outside of Law Firm X with respect to the pending application. Does Bar Rule 3.2(d)(1), or any other Bar Rule provision, prohibit Lawyer A from participating in the planning board's consideration of, and voting on, the application to which Client D is opposed?

The Commission answers the question in the affirmative for the reasons stated in response to Questions 2 and 4.

Question 6: Lawyer B represents Client D on other matters. Client D is opposed to an application presently pending before the planning board but either is unrepresented or is represented by counsel outside of Law Firm X with respect to the pending application. Does Bar Rule 3.2(d)(1), or any other Bar Rule provision, prohibit Lawyer A from participating in the planning board's consideration of, and voting on, the application to which Client D is opposed?

The Commission answers the question in the affirmative for the reasons stated in response to Questions 3 and 4.

Question 7: The municipality has an ordinance that prohibits a planning board member from recusing him/herself or abstaining unless the planning board first has determined that the member has a conflict of interest. A circumstance arises in which Bar Rule 3.2(d)(1), or another Bar Rule provision, prohibits Lawyer A from participating in the planning board's consideration of, and voting on, a particular application. The planning board, however, determines that Lawyer A does not have a conflict of interest and that Lawyer A must participate and vote. What should Lawyer A do?

The Commission presumes that this would be a rare occurrence, but the answer to the question is clear. If Lawyer A’s participation on the planning board would violate Rule 3.2(d)(1) or any other Bar Rule, Attorney A must refrain from participating. There is no exception made in Bar Rules 1(a), 2(c), and 3.1(a) for contrary determinations made by a planning board or similar public body.

As discussed in the Advisory Committee’s notes when Rule 3.2(d)(1) was substantially re-written in April 1990, the Rule attempted to resolve the policy dilemma between the need to avoid the appearance of impropriety and the public interest in encouraging lawyers to undertake public service. In our view, should a municipal board on which a lawyer sits require him/her to violate a Bar Rule as a condition of service, and the lawyer has exhausted all avenues of appeal relevant to that decision, then it would be time for the lawyer to consider public service in a different venue. [Back to Index]


Footnote

[1] Ethics Opinion No. 45, issued on 11/22/83, considered a series of hypothetical questions presented by a lawyer/city council member including a question about “the propriety of members of his law firm representing clients in proceedings involving agencies or employees of the city.” That Opinion considered questions similar to those raised herein, but from the point of view of an attorney representing clients before the public body rather than from the point of view of the lawyer in his/her role as public official. It was assumed in each of those questions that the lawyer/city council member would “refrain from voting on any such matters which were presented to the city council.”


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