Opinion #45. Accepting Claims Against City by a Municipal Officer (or his Firm)

Issued by the Professional Ethics Commission

Date Issued: November 22, 1983

Questions

A member of a city council who is also a lawyer has posed a number of questions concerning the propriety of members of his law firm representing clients in proceedings involving agencies or employees of the city. The inquirer indicates that he would refrain from voting on any such matters which were presented to the city council. Additionally, his firm would disclose his position on the city council to any clients who had matters involving the city. The specific questions are as follows:

  1. Council member himself or another member of the firm handles a criminal case in which the city’s police are the arresting or investigating officers. The City Council has no involvement with hiring, firing, disciplining or promotions and all are done through the Civil Service Commission.

  2. A firm member other than the council member appears before the council for licensing purposes, industrial revenue bonds, land leasing or bidding on behalf of a client. The council member abstains from voting on the issue.

  3. A client of the law firm appears before the City Council. The law firm’s only involvement is clerk of the client’s corporation. There is no appearance by a member of the firm and the firm has no involvement with the particular issue. The council member abstains from voting.

  4. A firm member appears before the Planning Board, Civil Service Commission or other city agency. The City Council appoints boards and commissions and there may not be an appeal to the City Council.

  5. A workers’ compensation claim by a municipal employee is handled by a firm member. The City Council is not involved. The City has retained an independent administrative agent to handle all compensation matters.

  6. A firm member brings suit against the city. The council member does not participate in executive session or participate in discussion or vote on the issue.

  7. A firm member other than the city council member represents municipal employees in employee grievances under a collective bargaining contract. There is no City Council involvement in the steps to the grievance procedure. The grievance procedure steps are from department head to City Manager and then to independent arbitrator.

  8. A firm member negotiates a collective bargaining agreement on behalf of municipal employees. The council member does not participate in council action on the contract.

  9. A business firm is represented by the council member’s firm on some matters. The client appears before the council without representation or with separate representation. Council member does not participate in voting.

Opinion

It should be noted at the outset that the Commission’s opinion is limited to consideration of the questions posed under the Maine Bar Rules. We note but do not construe the existence of conflict of interest statutes regulating the consideration of matters by municipal bodies in which a member has a pecuniary interest. See 30 M.R.S.A. § 2251.

Question 1

The Commission has recently had occasion to render an advisory opinion concerning the propriety of a county commissioner undertaking criminal cases in which deputy sheriffs in his own country were complaining witnesses or arresting officers. See Opinion #29 (2/4/82). There, analogizing the county commissioner’s public duty to that which is owed to a private client, we held that the county commissioner in such cases would be inhibited in providing the independent judgment required of him in his dual role because of his conflicting loyalties in violation of Rule 3.4(c) prohibiting multiple employment.

Our decision in Opinion #29 is controlling here. There is no meaningful distinction between the case of a city councilman/layer who undertakes the defense of a criminal case prosecuted by a city’s police officers whose salaries are set by the city council and one in which a county commissioner defends a case in which deputy sheriffs are prosecution witnesses.

Similar conclusions have been reached in other jurisdictions on somewhat different rationales. In Los Angeles County Bar Association Op. #273, it was held that:

The lawyer may be tempted to use the influence of his public office to the benefit of private gain and his client’s cause. The police officer, as a material witness, is subject to investigation by the council, and may be tempted to slant his testimony in favor of the council member’s client. Under the circumstances it might seem to the public that the council member has utilized the influence of his public office to further his private practice. See also Drinker, Legal Ethics 119 (1953); Arizona Bar Association Op. No. 75‑8 (1975) (city council member may not represent criminal defendant where complaining witnesses are local police officers); Florida Bar Association Op. No. 71‑12 (1971) (city council members “may not . . . put themselves in a position where they must contest the evidence of the city police”).

Question 2

The second question concerns the appearance of a member of the inquirer’s law firm before the city council seeking a license or other similar property arrangement with the city for a private client. The lawyer/city council member would recuse himself.[1]

Rule 3.2(d) states that a lawyer who holds a public office shall not:

(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.

It has elsewhere been held that the term “tribunal” should be interpreted broadly to include administrative agencies, boards, and commissions. See e.g. A.B.A. informal op. no. 1182; State ex rel. Nebraska State Bar v. Holscher, 193 Neb. 729, 230 N.W.2d 75, 80 (1975). The Commission accepts this interpretation of the term as it is used in Rule 3.2(d)(2) at least in cases in which the City Council is acting in an adjudicative rather than a legislative capacity.[2]

A more difficult question is presented as to whether the attorney seeking the license would violate the rule if he made no overt attempt to influence the city council by reference to his partner’s public position. In A.B.A. informal op. no 1182 (1971), it was held that the mere appearance of a lawyer‑legislator before an administrative board appointed by the legislature would not violate DR 8‑101(A)(2), the counterpart of Rule 3.2(d)(2), even though it acknowledged that the attorney’s “very appearance before such a board may be circumstantial evidence of such influence or attempt to influence.”

The Commission acknowledges that it may be difficult in any given case to establish whether or not a lawyer/councilman has exercised a subtle influence over the decisions of public bodies of which the lawyer is a member. It would ordinarily be impossible to prove what conscious or subconscious effect the appearance of the lawyer/city council member or his partner would have upon the objectivity of the city council itself. Even though he did not participate in the council’s deliberations, the lawyer member would be in a position to coach his partner as to how individual members of the council could most effectively be influenced. Council members might be reluctant to openly vote against granting the requested license for fear of losing the lawyer/council member’s vote on some other issue thought to be more important in the long run.

Although the Commission is sympathetic with these concerns, it is not persuaded that the drafters or Rule 3.2(d) intended that the mere appearance of an attorney/council member before the legislative body of the municipality or one of its subordinate agencies would constitute a per se violation of the rule. The wording suggests that evidence of an overt attempt to influence the decision‑maker through the attorney’s public position must be shown in order to establish a violation. It would have been easy enough to outlaw all such appearances by a lawyer who is also a public officer if this had indeed been the drafters’ intention. Moreover, the effect of such a construction of the rule would be to discourage lawyers from seeking public office and thus limit public service on the part of a profession which has traditionally provided leadership at all levels of government. The Commission therefore holds that an attorney’s appearance as an advocate before the city council of which he is a member in a matter in which he is attempting to obtain a license or other similar grant of authority would not in and of itself violate the rule.[3]

Question 3

In the third hypothetical question, it is inquired whether there is any impropriety involved if a corporation of which the lawyer‑council member’s firm is clerk appears before the council. The question must be answered in the negative since the Bar Rules are directed only at lawyers. In the question presented, a non‑lawyer is the actor. Since there is no representation, there is no impropriety. It might be prudent for the lawyer/council member to disclose his nominal connection with the applicant and perhaps recuse himself to avoid any public misconception that his vote had been improperly influenced, but he would not be required to do so.

Question 4

The Commission believes that it would not be improper under Rule 3.2 (d)(2) for the law associate of a city council member to present a matter before a board or commission appointed by the city council provided there was no overt effort to influence the outcome of the proceeding by virtue of the lawyer’s public position.[4] The reasons are essentially the same as those given in answer to question no. 2. See, however, New York State Bar Ass’n op. no. 110 (1969) in which it was held that it would be improper for a city council member to represent clients before the Urban Renewal Authority whose members were appointed by the council.

Question 5

This question presents the issue of whether the inquirer’s law firm may bring a worker’s compensation claim against the city’s insurance carrier on behalf of a city employee. No disciplinary rule clearly applies. The city may have a pecuniary interest in defeating the claim because of the adverse effect a recovery would have upon its experience rating. In addition, city officials involved with the case may have developed strong feelings about the outcome. If interests such as these arising from the lawyer’s relationship with or duty of loyalty to the city would make it difficult for him to exercise full “independent professional judgment” on behalf of the claimant, he would be barred from undertaking the case by virtue of Rule 3.4(b). The prohibition is extended to his law associates by Rule 3.4(k). There would otherwise seem to be nothing to prevent the inquirer’s law firm from pursuing the claim.

Question 6

The Commission is asked whether the inquiring attorney’s law firm may bring suit against the city. Clearly Rule 3.2(d) forbids the lawyer/council member from using his public position in any way to benefit the client. A more difficult question is presented where the lawyer abstains from any discussion of the lawsuit and does nothing which could be construed as an attempt to influence the City’s position in the matter.

In Maine Bar Association op. no. 8 (1971), involving a mayor who wanted to present a zoning case before the local board of appeals, it was held that the representation was improper. The opinion noted that the cases found in other jurisdictions unanimously held that lawyer/city council members could not properly litigate claims against their own cities (citing opinions from Cleveland, Washington, and Wisconsin).

In addition, the Commission notes that the attorney presenting the claim would of necessity be negotiating with employees or agents of the city whose compensation, and perhaps tenure, would of necessity be directly controlled by the city council of which his associate was a member. Opinions from other jurisdictions generally prohibit representation by a public official which places him in an adversarial relationship with public employees whose salaries are subject to his control. See the authorities cited, supra, under question #1. The factual situation is similar to that presented in Opinion #29 in which we held that a County Commissioner could not accept cases in which a sheriff or his deputies were his adversaries.

We also note that, even though not participating actively in the litigation, the lawyer/council member would nevertheless be in a position to provide strategic assistance to his law partner or associate if he were inclined to do so. His inside knowledge of city council affairs would make it possible for him to offer cogent advice regarding such matters as the attitudes which individual council members would be likely to adopt regarding the proceedings, the extent of the city’s insurance coverage, and whether the department head involved was likely to lose his nerve and urge that the case be settled. Even if inside information of this kind were not communicated, the public at large would find it hard to believe that inside influence had not been exercised if the proceedings culminated in a handsome jury verdict or settlement which the city was obliged to pay. The Commission therefore concludes that the representation proposed would violate Rule 3.2(f)(4) prohibiting “conduct that is prejudicial to the administration of justice.”

Question 7

For reasons essentially similar to those set out above, the Commission concludes that it would not be proper for a law associate of a city council member to represent a member of a municipal employees labor union in a grievance proceeding. At each step of the grievance process, the attorney in question would be in an adversarial relationship with municipal employees whose salaries were set by his law associate in his capacity as city council member. In the case of the city manager, the power of appointment would also be involved. In addition, any municipal appropriation required to fund a negotiated settlement would have to be approved by the city council. For these reasons, the Commission holds that such representation would violate Rule 3.2(f)(4).

Question 8

The Commission believes that Rule 3.2(f)(4) would be violated if a law associate of the city council member negotiated a collective bargaining agreement for municipal employees for the same reasons set forth in answer to question 7. The city negotiators would doubtless be directly accountable to the city council. They should not be placed in the position of fearing that if they did not tread lightly in what may often be an acrimonious process of give and take, they might later suffer in terms of their own employment status at the hands of the council member whose law associate had been their adversary.

Question 9

The Commission holds that no disciplinary rule would be violated if a business firm represented by the council member’s law firm on other matters appears before the city council without representation. The Commission’s reasons are the same as those set forth in answer to question 3.


Footnotes

[1] Because of Rule 3.4(k), the question presented is the same whether the attorney himself or a member of his firm appears before the city council.

[2] We are not in the context of the present opinion called upon to determine whether a city council would be a “tribunal” when exercising its legislative function as in the case where it is enacting an ordinance.

[3] We recognize that this conclusion is inconsistent with the holding in Opinion #28 that a partner or associate of a lawyer/legislator may not act as legislative lobbyist. We now hold that Rule 3.2(d) would prevent such lobbying activity only where the attorney/legislator’s public position is used by himself or his associate to influence or attempt to influence a legislative body to act favorably to his client’s position. Rule 3.2(d)(1) would also forbid any attempt by the attorney/legislator or his lobbyist associate from seeking to use the former’s public position to obtain a special advantage for himself or a client. We also note that opinion #28 did not address the question (which we need not now decide) of whether the legislature is a tribunal for purposes of Rule 3.2(d)(2).

[4] It is assumed that the lawyer in question has disclosed to his client the fact that his associate is a member of the city council and obtained his prior consent to the representation.


Enduring Ethics Opinion