Opinion #109. Duties of Lawyer/Mayor and Partners or Associates During Representation Before Public Bodies

Issued by the Professional Ethics Commission

Date Issued: October 4, 1990

A member of the Bar who is also the mayor of one of the cities of the State has asked several questions concerning the ethical restrictions which may apply to a member of his firm appearing as an advocate before or against the city or its governmental subunits. Under the city’s charter, the mayor presides at City Council meetings (but votes only in case of ties), and serves on the school committee, the water district and the sewerage district (though he may appoint city councilors to serve in his stead). The Commission believes that all of the questions asked are answered directly by recent amendments to the Code of Professional Responsibility and its Opinion No. 73 (August 6, 1986). Those answers, in summary form, are as follows:

Question No. 1

May a member of the lawyer/mayor’s firm represent clients before a municipal department in matters such as land use permitting, real estate tax assessment, and community development loans?

ANSWER

New Bar Rule 3.2(d)(2), effective April 2, 1990, prohibits lawyers who hold public office from representing clients only “before an elected or appointed public body of which the lawyer is a member or before any committee or subcommittee of that body.” The enumerated municipal departments at issue are not public bodies of which the lawyer is a member. Thus, the lawyer/mayor himself could undertake the representation described by the question. Therefore, so may his partners and associates. The only restriction imposed upon the lawyer/public official himself is that contained in Rule 3.2(d)(1) which prohibits him from using his position to “influence, or attempt to influence,” a “public body or official engaged in adjudicatory proceedings,” which the types of activities described by the question appear to be. See generally Advisory Committee Note to 1990 Amendment to Rule 3.2(d).

Question No. 2

May a member of the lawyer/mayor’s firm represent clients before the City Council itself or before a municipal board such as a planning board or board of appeals or before a quasi‑municipal board such as the water district or sewer district?

ANSWER

Under the facts presented, the answer to this question depends on the identity of the particular board at issue. As just indicated, the only prohibition against the lawyer/mayor himself appearing before a public body of the city is that he may not appear before bodies of which he is a member, as well as committees or subcommittees of those bodies. The lawyer/mayor in this case is a member of the City Council, the school committee and the water and sewer district. He is not a member of the planning board or board of appeals.

Thus, he may not appear before the former group of bodies,[1] but may do so before the latter (which are not subcommittees of any of the former) so long as he does not use his position to influence their determinations.

Under the new rules, therefore, there is no problem with the lawyer/mayor’s partners and associates representing clients before all of those bodies of which he is not a member. As to those bodies of which he is a member the question becomes whether his partners and associates are disqualified through the vicarious disqualification provisions of Rule 3.4(k). That rule was also amended in 1990 to add a new provision specifying that if a lawyer is required to decline employment by virtue of Rule 3.2(d)(2), his partners and associates are not disqualified from appearing in front of the public body of which he is a member, so long as “full disclosure of the relationship is made upon the record at or before the commencement of the representation.” Thus, a lawyer/mayor’s partners or associates may appear before the City Council, both on legislative and adjudicatory matters, and other city bodies of which he is a member, so long as they comply with the provisions of this rule.

Question No. 3

May a member of the lawyer/mayor’s firm represent clients in a civil action against the city such as one brought pursuant to Rule 80B, Me.R. Civ.P.?

ANSWER

This question was not addressed by the recent amendments to the Bar rules, but was thoroughly discussed in the Commission’s Opinion No. 73. The first question discussed in that opinion concerns the ability of a lawyer, or his partners or associates, to engage in litigation against the city of which the lawyer is a councilor. The opinion concluded that neither the lawyer/public official, nor his partners or associates, may engage in such litigation, even if the lawyer/public official were to take no part in any council deliberations concerning the litigation. Since the lawyer here, as mayor, serves on the city council, his situation is squarely covered by this opinion. Therefore, neither he, nor his partners or associates, may litigate against the city so long as he remains mayor thereof.


Footnote

[1] Since the lawyer/mayor may appoint city councilors to serve in his stead on these latter three bodies, the disqualification of Rule 3.2(d)(2) does not apply if he makes such an appointment and so is not on the committee at issue himself.


Enduring Ethics Opinion