Can a city attorney advise a quasi-judicial municipal board in a hearing where the city itself is a party, while another city attorney argues the city's side?

Plain-English summary

The Committee considered a small municipal law office in which, during a hearing before a quasi-judicial citizen board where the municipality was a party, one municipal attorney sat at counsel table as the "advocate" for the municipality and another sat with the board as a "neutral" providing procedural advice, the two separated only by an informal "ethical screen." The question was whether a municipal attorney may represent the board in those circumstances.

The opinion concluded the lawyer may do so only in accordance with Rule 1.7. It first noted that government lawyers are subject to the conflict-of-interest rules just as private lawyers are, citing ABA Formal Opinion 97-405, and that different government agencies with opposing positions may be treated as separate clients. Because the municipal agency and the citizen board were not directly adverse, Rule 1.7(a) did not squarely apply; the concern lay in Rule 1.7(b) (independence). The Committee reasoned that the neutral attorney, employed by the municipality and in daily contact with the advocate, owed a duty of loyalty to the municipality and had personal interests in her relationships with the employer, the agency-client, and her colleague, so her ability to independently advise the board could be questioned, especially in a small office where an ethical screen offered limited protection.

The opinion concluded the neutral's representation of the board would likely be "materially limited" by her responsibilities to the municipality under Rule 1.7(b), so she had to examine the propriety of the representation closely. Under Rule 1.7(b)(1), if she believed the representation would be adversely affected, she had to decline; under Rule 1.7(b)(2), even if she believed it would not be adversely affected, she had to consult both clients and obtain informed consent before proceeding. The Committee added that both attorneys should be mindful of their duty to maintain public confidence in the legal system, that in some cases the board may need independent counsel, but that as a routine matter independent counsel was not required on these facts, and it expressed no opinion on the due-process questions raised.

Currency note

This opinion was issued in 1999, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a city attorney advise the board hearing a case the city was party to?

A: The opinion concluded the attorney may, but only in accordance with Rule 1.7, and the neutral attorney first had to examine the conflict and obtain both clients' informed consent.

Q: Why was Rule 1.7(b), not 1.7(a), the focus?

A: Per the opinion, the agency and the board were not directly adverse, so the directly-adverse prohibition in Rule 1.7(a) did not squarely apply; the concern was that the neutral's representation would be materially limited by her loyalty to the municipality under Rule 1.7(b).

Q: Did an ethical screen solve the problem?

A: The opinion was skeptical, noting that in a small office where attorneys are in daily contact an ethical screen offered limited protection, and that courts increasingly view such barriers as ineffective.

Q: Did the board need its own independent counsel?

A: The opinion said the board may need independent counsel in some cases to maintain public confidence, but that as a routine matter independent counsel was not required on the facts presented.

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 1.7 (conflicts of interest; Model Rule 1.7), focusing on Rule 1.7(b)'s limit on representation materially limited by the lawyer's responsibilities to another client, a third person, or the lawyer's own interests. It applied that rule to a government law office and relied on ABA Formal Opinion 97-405 (conflicts in representing government entities). The opinion noted a Publisher's Revision flagging that it was drafted before the January 15, 1999 amendment to Rule 1.7(a).

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.7 (conflicts of interest), particularly Rule 1.7(b) (materially limited representation)

Other opinions cited:

• ABA Formal Opinion 97-405 (conflicts representing government entities)

See also

• ABA Formal Op. 97-405: Conflicts Representing Government Entities
• AK Bar Ethics Op. 2003-2: Estate Personal Representative Fraud

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/99-2.pdf

Original opinion text

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

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 99-2
May A Municipal Attorney Represent
A Quasi-Judicial Municipal Board
That Is Hearing A Disputed Matter
In Which The Municipality Is A Party To The Dispute?
The Committee has been asked if a municipal attorney may
represent a quasi-judicial municipal board hearing a disputed matter in which
the municipality is a party to the dispute. The Committee concludes that the
lawyer may do so, but only in accordance with Alaska Rule of Professional
Conduct 1.7.
In the facts presented, the municipality employs a very small staff
of attorneys. The attorneys provide general legal advice to municipal agencies
and represent the municipality in disputed matters.
On occasion, the
municipality is a party in a disputed hearing heard by a quasi-judicial board
comprised of citizen volunteers. One municipal attorney sits at counsel table
and advocates for the municipality’s position (the “advocate”).
Another
municipal attorney sits with the board and provides it with procedural advice
(the “neutral”). The attorneys do not discuss the matter with each other
outside the hearing room, intending to be separated by what is colloquially
known as an “ethical screen.”
This phrase refers to an imaginary barrier between lawyers in the
same office preventing communication about the matter. E.g., Stevens, “Can
the State Attorney General Represent Two Agencies Opposed in Litigation,” 2
Georgetown Journal of Legal Ethics 757, 797 (1989). Ethical screens, or
“Chinese Walls,” are meant to protect against conflicts of interest much as “the
Great Wall served ancient Chinese emperors, an elaborate and extraordinary,
yet effective and impregnable, barrier against transgression.” C. Wolfram,
Modern Legal Ethics, § 7.6.4, at 401 n. 65.1
Of course, as a matter of historical fact, wave upon wave of invaders swept into
ancient China, starting with the Hsiung-Nu and ending with the Mongols. These
invaders were neither deterred nor delayed by the “Great Wall,” and routinely and
repeatedly breached it. J. K. Fairbanks, A New History of China (Cambridge: Harvard
U. Press, 1994). Increasingly, courts view ethical barriers as equally ineffective in
preventing breaches of attorneys’ ethical responsibilities. E.g., Cardonna v. General
Motors Corp., 942 F.Supp. 968, 977-978 (D.N.J. 1996); Towne Development of
Chandler, Inc., v. Arizona Superior Court, 842 P.2d 1377 (Arizona, 1992).
1

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As an initial matter, the Committee notes that lawyers representing
government entities are subject to the Rules of Professional Conduct in the
course of representing their client. ABA Formal Opinion 97-405.2 Among
these are the rules relating to conflicts of interest. Id., at 4 (“it seems clear that
the general conflict of interest provisions of the Model Rules serve to protect the
interests of a government client just as they protect the lawyer’s private
clients”). Alaska Rule of Professional Conduct 1.7 provides:
(a)
A lawyer shall not represent a client if the
representation of that client will be directly adverse to
another client in the same or a substantially related
matter, unless:
(1)
the lawyer reasonably believes the
representation will not adversely affect the
relationship with the other client; and
(2)
each client consents after consultation.
(b)
A lawyer shall not represent a client if the
representation of that client may be materially limited
by the lawyer’s responsibilities to another client or to a
third person, or by the lawyer’s own interests, unless:
(1)
the lawyer reasonably believes the
representation will not be adversely affected; and
(2)
the client consents after consultation […].
(Publisher’s Revision: This ethics opinion was drafted prior to the January 15, 1999 amendment
to ARPC 1.7(a). This strikethrough shows the language removed by the amendment.)

Rule 1.7 is primarily based on the duty of loyalty owed to the
lawyer’s clients and the duty to preserve client confidences.
Comment,
Annotated Model Rule of Professional Conduct 1.7 (Chicago: ABA, Third Ed.
1995), at 19. The rule “applies both when the representation of a client is
directly adverse to another client and when representation of one client would

2 “While lawyers who serve as public officers or employees are singled out for special

treatment under a few rules, e.g., Rule 1.11 (‘Successive Government and Private
Employment’) and 3.8 (‘Special Responsibilities of a Prosecutor’), it has generally been
assumed – correctly in our view – that such lawyers are in most other respects subject
to the same obligations in representing their government client that apply to lawyers
representing private clients.” Id., at 4. n. 1 (citations omitted).

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be materially limited by other interests or responsibilities of the lawyer.” Id.
(citations omitted).
Many commentators have concluded that different agencies within
a government entity should be considered separate clients when they have
opposing positions in matters in controversy. Josephson & Pearce, “To Whom
Does the Government Lawyer Owe the Duty of Loyalty When Clients Are in
Conflict,” 29 Howard Law J. 540; Stern & Gressman, Supreme Court Practice
(5th Ed. 1978), at 768. The authorities recognize, however, that the attorneyclient relationship is “subtly different” for government attorneys as compared to
the private bar. Humphrey v. McLaren, 402 N.W.2d 535, 542 (Minn. 1987).
The attorney general, for example, has a “dual role as representative of a state
agency and guardian of the public interest.” Deukmejian v. Brown, 624 P.2d
1206, 1209 (Calif. 1981). State courts have allowed the attorney general to
concurrently represent conflicting interests within the government, when the
attorney general “can ensure independent representation for the competing
parties.” Hawai’i v. Klattenhoff, 801 P.2d 548, 604 (Hawaii 1990).
Adversity and independence are the issues. In the facts presented,
the municipal agency and the citizen board are not directly adverse. Thus,
Rule 1.7(a) (adversity) does not squarely apply. However, the roles of the two
municipal attorneys participating in the hearing differ substantially. The
advocate attorney argues for the municipal agency’s position. The neutral
attorney provides advice to the citizen board on its options. While the advocate
acts in a conventional role, the neutral is in a more complex position, and the
concerns of Rule 1.7(b) (independence) are implicated.
The municipality, a party to the proceeding, employs the neutral
attorney. The neutral has personal interests in maintaining good relations with
the municipality as an employer, the municipal agency as a client, and the
“advocate” municipal attorney as a colleague or possibly a supervisor.
Regardless of the temporary assignment to the board, the neutral owes a duty
of loyalty to the municipality:
Simply put, an attorney must be loyal to her client and
ensure that every professional decision she makes on
behalf of the client is in the client’s best interest.
Freund v. Butterworth, 117 F.3d 1543 (11th Cir. 1997).
The facts presented involve a very small law office, where the
attorneys are in daily contact, as compared to a larger governmental law office

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with “a large staff which can be assigned in such manner as to afford
independent legal counsel and representation to the various agencies.”
Superintendent of Insurance v. Attorney General, 558 A.2d 1197, 1204 (SJC
Maine, 1989), quoting, Allain v. Mississippi PUC, 418 So.2d 779, 784 (Miss.
1982).
Even with the best intentioned ethical screen in place, the neutral
attorney may be reluctant to give advice to the board that goes against the
municipality’s interests, that undercuts the arguments of the municipal staff or
that contradicts the arguments of her colleague or supervisor, the advocate.
The neutral is in a position of potentially conflicting loyalties, and her ability to
independently represent the board may be questioned:
Loyalty to a client is […] impaired when a lawyer
cannot consider, recommend or carry out an
appropriate course of action for the client because of
the lawyer’s other responsibilities or interests. The
conflict in effect forecloses alternatives that would
otherwise be available to the client.
Comment, ARPC 1.7(b); cf., Smiley v. Director, Office of Workers Compensation,
984 F.2d 278, 282 (9th Cir. 1992), citing, former DR 5-105.3
In these circumstances, the Committee believes that the neutral
attorney’s representation of the board will likely be “materially limited” by her
responsibilities and loyalties towards the municipality. Rule 1.7(b). The
neutral has an obligation to examine very closely the propriety of her
representation of the board under Rule 1.7(b)(1) and (b)(2) before proceeding
further.
Under Rule 1.7(b)(1), if the neutral attorney believes that
representation of the board will be “adversely affected” by her responsibilities
to the municipality or any other relevant consideration, such as her personal
interests, the neutral must decline the representation. Under Rule 1.7(b)(2),
even if the neutral believes that her representation of the board “will not be
adversely affected” by her other responsibilities, she must nonetheless consult
both clients and obtain their informed consent before proceeding. Cf. ABA
Formal Opinion 97-405, at 5 (“In such a case the lawyer could continue the
3 Although the “neutral” attorney’s advice to the board may be intended to be limited

to procedure, the Committee notes that decisions on procedural matters frequently
have substantive impacts on the outcome of any case.

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representation only if she reasonably believes it would not be adversely
affected, and even then only if she obtained consent of the affected clients.”).4
A final consideration, in addition to those of Rule 1.7, is public
confidence in the legal system. Alaska lawyers have “a special responsibility
for the quality of justice.” Preamble, Alaska Rules of Professional Conduct. It
is sometimes said that a government attorney has “the public interest” as a
client. E.g., EPA v. Pollution Control Board, 372 N.E.2d 50, 53 (Ill. 1977). It is
assuredly in the public interest for government attorneys in Alaska to take
whatever steps are required to preserve public confidence in the “quality of
justice” at all levels of Alaska’s legal system.
In these facts, parties appearing before the municipal board may
not understand the role played by the neutral municipal attorney in a
proceeding where another municipal attorney appears as an advocate, and may
not believe they are being treated fairly. Both attorneys should be cognizant of
their duty to maintain public confidence in the legal system, and should take
whatever steps they believe appropriate under the circumstances of the matter.
In some cases, maintaining public confidence in the fairness of the legal system
may require a board to have independent counsel. As a routine matter,
however, the Committee does not believe independent counsel to be required in
the circumstances presented here.5
Approved by the Alaska Bar Association Ethics Committee on December 3, 1998.
Adopted by the Board of Governors on January 15, 1999.
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The Committee’s discussion centers on the neutral attorney because of the facts
presented in the opinion request. The advocate attorney has the same responsibilities
under Rule 1.7(b) towards the municipality as the neutral attorney has towards the
board. If the circumstances demand it, the advocate must act accordingly.

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5 The Committee does not express any opinion on the due process issues presented by

this fact situation.

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