Opinion #52. City Attorney as Partner of Planning Board Member and Board of Appeals Member

Issued by the Professional Ethics Commission

Date Issued: December 5, 1984

Facts

City X has a Planning Board, a Zoning Board of Appeals and a City Solicitor. Law firm A, B & C has attorney A serving as a volunteer on the Planning Board, attorney B serving as a volunteer on the Zoning Board of Appeals, and attorney C retained as City Solicitor. None of the attorneys in the firm represent private clients before either Board, nor does attorney C ever appear before either Board representing the interests of the City. Attorney C does, however, represent the City in Court when an appeal is taken from a decision of one of the Boards. And, attorney C as City Solicitor has given legal opinions to the Boards upon request.

The Commission has been asked whether this situation gives rise to any conflict of interest.

Opinion

Maine Bar Rule 3.5(b) provides as follows:

A lawyer shall not accept 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.

We see nothing inherent in attorney C’s representation of the City in this situation that would affect his independent professional judgment. The mere fact of having partners serving the City in their volunteer capacities would not be expected to influence the advice that attorney C gives either directly to the City Council or to its appointive Boards.

It is, of course, possible to hypothesize particular situations in which a conflict might arise. If, for example, one of attorney C’s partners on one of the City’s Boards were to take a position on his Board that was so strongly felt and so thoroughly communicated to attorney C that C’s legal advice to that Board actually became influenced or was likely to be influenced by his desire to please his partner, then obviously C’s duty would be to decline to advise the City’s Board on that issue. However, this hypothetical situation has not, as far as we know, actually arisen and we do not think it likely that such an influence on attorney C’s independent judgment would likely occur in the normal course.

Nor do we see in this case any likely violation of Rule 3.2(d) pertaining to the acts of lawyers as public officials. That Rule states:

A lawyer who holds public office shall not:

(1) Use his public position to obtain, or attempt to obtain a special advantage in legislative matters for himself or for a client under circumstances where he knows, or it is obvious, that such action is not in the public interest;

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

(3) Accept any thing of value from any person when the lawyer knows, or it is obvious, that the offer is for the purpose of influencing his action as a public official.

While clearly attorney A and attorney B are public officials within the meaning of this Rule, the fact that the law firm represents no clients before the Planning Board or Zoning Board of Appeals removes any temptation for those attorneys to misuse their public position, and distinguishes this situation from the thorny issues which were thoroughly discussed in Opinion No. 45.


Enduring Ethics Opinion