Can a lawyer who serves on a borough assembly, or the lawyer's firm, represent clients before that assembly?

Plain-English summary

The Committee considered an attorney, "A," elected to a Borough Assembly that has both legislative and quasi-judicial responsibilities and the power to hire, fire, and set the pay of the Borough Attorney. "A" personally abstained from voting where his firm had an interest, refused employment involving representation before the Assembly, and declined to vote on the Borough Attorney's hiring or pay. The question was whether other attorneys in "A's" firm could undertake civil representation of clients with claims against the Borough, appear in civil matters before the Assembly, and appear before Borough boards and commissions.

The opinion set out a series of conclusions. First, a lawyer who is a member of such a body may not practice or represent clients before it, applying DR 9-101(B) (no private employment in a matter of substantial public responsibility, which applies to present as well as past public employment) and DR 9-101(C) (a lawyer may not state or imply an ability to influence a body improperly), and drawing on ABA Opinion 296 and the analogy to a part-time judge not practicing before his own court. Second, the lawyer should not practice before agencies from which the normal appeal runs to the legislative and quasi-judicial body of which he is a member (EC 8-8, EC 9-2, and the Code of Judicial Conduct by analogy). Third, this prohibition holds even if the lawyer disqualifies himself from acting on the matter as a member, because the public, whom he serves as a member, cannot consent to a conflict of interest.

Fourth, because the lawyer himself cannot practice before the body or before agencies appealing to it, his partners and associates are similarly prohibited; the opinion applied the principle of DR 5-105(D) and authorities holding that a partnership cannot undertake what a partner could not, and agreed with Arizona Opinion 74-28 that partners and associates of a lawyer-councilman are barred by the inevitable appearance of impropriety. The opinion added that a lawyer-legislator should never use the legislative position to advantage clients (DR 8-101). Fifth, the Committee found it had insufficient facts to decide whether the lawyer-assemblyman or his firm could prosecute claims against the municipality, and declined to address that question.

Currency note

This opinion was issued in 1976, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The rules on government officers, improper influence, and imputed disqualification have since been recodified. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer who sits on a borough assembly represent clients before that assembly?

A: The opinion concluded the lawyer may not practice or represent clients before a legislative and quasi-judicial body of which he is a member.

Q: Does self-disqualification let the lawyer appear before the body?

A: No. The opinion concluded the prohibition holds even if the lawyer disqualifies himself, because the public cannot consent to the conflict.

Q: Are the lawyer's partners and associates also barred?

A: Yes. The opinion concluded that because the lawyer himself cannot practice before the body or agencies appealing to it, his partners and associates are similarly prohibited.

Q: Can the firm sue the municipality on a client's behalf?

A: The opinion declined to decide, finding it had insufficient facts about the Assembly's role and the municipality's handling of claims.

Background and rules framework

The opinion applied the former Code's successive/concurrent public-employment rule (DR 9-101(B)), the improper-influence rule (DR 9-101(C)), the imputation rule (DR 5-105(D)), the bar on using public position to a client's advantage (DR 8-101), and the public-officer and appearance-of-impropriety considerations (EC 8-8, EC 9-2, EC 9-6), subjects now treated by Model Rules 1.11 (government officers and employees), 8.4 (implying improper influence), and 1.10 (imputation). It drew on the Code of Judicial Conduct and Arizona Opinion 74-28 by analogy.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 9-101(B), DR 9-101(C) (public employment; improper influence) (cf. Model Rules 1.11, 8.4)
• DR 5-105(D) (imputed disqualification) (cf. Model Rule 1.10); DR 8-101 (use of public position)
• EC 8-8, EC 9-2, EC 9-6 (public officers; appearance of impropriety)

Other opinions cited:

• ABA Opinion 296; ABA Informal Opinions 855, 1182; ABA Opinions 16, 33, 34, 49, 50, 71, 72, 77, 103, 192; Arizona Opinion 74-28

See also

• Alaska Ethics Op. 99-2: Municipal Attorney Advising a Quasi-Judicial Board
• Alaska Ethics Op. 82-2: Prosecutor Married to a Judge
• Alaska Ethics Op. 83-4: From Government to a Firm Suing the Agency

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/76-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS
OPINION 76-1
Propriety of an Attorney Who is a Member of a Legislative Body or Members
of His Firm Practicing or Representing Clients Before that Legislative
Body.
(Approved by Board of Governors 7/30/76)
The Committee's opinion has been requested in connection with the
following statement of facts:
"A", an attorney admitted to practice in Alaska, is elected to the Borough
Assembly of the Borough in which he is a resident. The Borough Assembly has
no authority to appoint, recommend, remove or affect the pay and emoluments
of any magistrate or other judicial official within the Borough. The Assembly
does, however, have the power by ordinance to hire, fire, and fix the pay and
emoluments of the Borough Attorney. The Borough Charter requires each
member of the Assembly to vote on each question raised for determination by
the Assembly, except when otherwise prohibited from doing so, or when
excused by all remaining members of the Assembly entitled to vote. The
Charter also provides that a member of the Assembly is prohibited from voting
on a matter wherein he has a substantial financial interest. Interpreting this
latter provision as requiring abstention where a member of his law firm is
either personally financially interested, or is employed to represent an
applicant or litigant, "A" scrupulously abstains in such cases without putting
the matter to a vote of the Assembly. Further, "A" personally refrains from
accepting any employment which involves representation before the Assembly,
or any city staff agency, board or commission, and announces his intention to
refrain from voting on questions relating to the hiring, firing, or pay of the
Borough Attorney. If forced to a vote on abstention, "A" would in any event
refuse to vote. The sanction in the Borough Charter for such act would be a
vote by the Assembly to remove the Assemblyman from office. Under the
circumstances described, may other attorneys from the firm in which "A" is a
partner undertake civil representation of clients having claims against the
Borough; appear in civil matters before the Borough Assembly; and appear
before Borough boards and commissions such as the planning and zoning
commissions?
1.
An attorney who is a member of a legislative body such
as a borough assembly, which apparently has both legislative and quasijudicial responsibilities, may not practice or represent clients before that body.

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DR 9-101(b) provides that, 'A lawyer shall not accept
private employment in a matter in which he has
substantial responsibility while he was a public
employee.'
The proscription, obviously applies to present public employment as
well as past. The problem becomes clearer when considered in the light
of DR 9-101(c), which provides that a lawyer "shall not state or imply
that he is able to influence improperly or upon irrelevant grounds any
tribunal, legislative body, or public official." In the ABA Opinion, No.
296, August 1, 1959, it is stated that a law firm should not accept
employment to appear before a legislative committee while a member of
the firm is serving in the legislature. In an informal opinion, No. 855, it
is stated that a judge should not practice in a court over which he
occasionally presides, and neither should a partner or associate
practice over which such judge occasionally presides. Insofar as the
borough assembly has quasi-judicial powers in certain matters, this
proscription would be applicable by analogy.
Arizona Ethics Committee Opinion 74-28 addresses the question of
whether the members of a firm may appear on civil matters before the
city council where one of the members of the firm is a member of that
council, and answers the question negatively. The Arizona opinion does
not directly address the question of whether the attorney member may
himself appear before the Assembly, but the answer is obvious.
ABA Informal Opinion No. 1182, expresses the opinion that there
is no flat proscription upon an appearance by a lawyer-legislator before
a Workmen's Compensation Board, the members of which are
appointed by the legislature or where their compensation is fixed by the
legislature. However, EC 8-8 states, "A lawyer who is a public officer,
whether full or part time, should not engage in activities in which a
personal or professional interest is or foreseeably may be in conflict
with his official duties." EC 9-2 provides, "When explicit ethical
guidance does not exist a lawyer should determine his conduct by
acting in a manner that promotes public confidence in the integrity and
the efficiency of the legal system and the legal profession." EC 9-6
provides in part, "Every lawyer owes a solemn duty . . . to conduct
himself so as to reflect credit on the legal profession and to inspire the
confidence, respect, and trust of his clients and of the public; and to
strive to avoid not only professional impropriety but also the
appearance of impropriety."
2.
An attorney should not practice before agencies or
adjudicative bodies from which the normal course of appeal
is to the legislative and quasi-judicial body of which the
attorney is a member.
EC 9-2 and EC 8-8 appear to be in point on this matter. The
statement appears to be simply an extension of the first statement that
the attorney may not practice before the body of which he is a member.
The Code of Judicial Conduct is also instructive by analogy. Part II,
1(A) of the Judicial Canons provides that a part-time judge should not
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practice law in the court on which he serves or in any court subject to
the appellate jurisdiction of the court on which he serves. While the
Judicial Canons in effect in this State apply only to officers of the
Alaska Court System, to the extent that the Borough Assembly
exercises quasi-judicial powers, the analogy is valid.
3.
An attorney who is a member of a legislative and quasijudicial body may not practice before that body, or
agencies from which an appeal lies to that body, even if the
attorney disqualifies himself from acting upon the matter as a
member of the body.
While the proscription against engaging in activities which give the
appearance of impropriety is sometimes vague and may be overly broad,
it seems clear that at least this type of activity would fall within the
category and would be improper and unethical. It should also be noted
that an appearance before the body of which the attorney is a member
would be improper even if there was no objection to it, inasmuch as the
public, whom the attorney serves as a member of the body, cannot give
its consent to such a procedure if it involves a conflict of interest. ABA
Opinions No. 16, 34, 71, 77, 192.
4.
If the attorney himself cannot practice before the body,
or before agencies from which an appeal lies to that body, his
associates and partners are similarly prohibited.
It appears to be fairly settled that associates or partners of an
attorney who is disqualified from representing a client are similarly
disqualified. Disciplinary Rule 5-105(d) provides, 'If a lawyer is required
to decline employment or to withdraw from employment under DR 5105, no partner or associate of his or his law firm may accept or
continue such employment.' While the attorney in this case is not
prevented from practicing before the body because of DR 5-105, the
principle seems equally applicable. In ABA Opinions 33, 49, 50, 72,
and 103, it has been held that a partnership cannot undertake any
professional relationship which any one of thepartners, because of
adverse influences and conflicting interest, could not ethically
undertake. In informal opinion No. 855, it is said' . . . the duties and
considerations of possible conflicts are such that what a lawyer cannot
do because of these ethical precepts relating to other parties, neither his
partner, his associate, nor one with whom he shares offices, may do.'
Informal opinion No. 1182, addressing the ethical constrictions on a
lawyer-legislator states:
It is generally recognized that disqualification of a
lawyer includes disqualification of his law partners;
see e.g., ABA Formal Opinion 33; Basset v. Cook, 201
F. Supp. 821 (1862); Consolidated
Theater v. Warner Brothers, 113 F. Supp. 265 (1953);
Note, 73 Yale 1058 (1964); C.f. DR 5-105(D)(Relating
specifically to differing interests of two clients); DR 1102(A)(2); But see ABA Formal Opinion 220 (1941).
3

While the question is not completely free from doubt,
in our opinion, the same rules apply to a lawyer
partner of the legislator. A lawyer legislator should
never of course use his position in the legislature to
his advantage in the representation of his clients (see
DR 8-101), and his conduct should be governed at all
times by the Code.
The Committee on Rules of Professional Conduct of the Arizona
Bar has addressed a very similar fact situation in Opinion No. 74-28
(Sept. 24, 1974). The Opinion states that partners and associates of a
lawyer-councilman are prohibited by EC 9-3, EC 9-6, and DR-101,
directly and by implication, from practicing or appearing professionally
before the council or boards or agencies from which an appeal lies to
the council. The basis for this proscription is the inevitable appearance
of impropriety attendant to such practices. This Committee is in accord
with Arizona Opinion 74-28.
5.
The Committee has insufficient facts to decide whether
the lawyer-assemblyman, or his partners or associates, may prosecuteclaims against the municipality involved.
Inasmuch as the role of the Assembly and its members is not set
forth in the facts hypothesized with reference to municipal handling of
claims, nor the municipality's litigation practices or the character of
claims involved, the Committee feels it should refrain from addressing
this question in this Opinion.
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