Do a lawyer's past political activity, prior county clerkship, and spouse's job with a county supervisor create a conflict barring practice before the board?

Plain-English summary

A lawyer concentrating in land-use matters regularly represented clients before a county Board of Supervisors and in Superior Court suits challenging the board's decisions. He had been politically active for board members, had clerked in the County Attorney's civil division before admission, had served a year on the independent Board of Adjustment, and had a wife employed as administrative assistant to one elected supervisor. He asked whether any of these relationships created a conflict requiring him to end existing representations or to stop appearing before the board.

The opinion answered no, addressing each point. It treated the lawyer's political activity as a commendable exercise of a lawyer's responsibility as a public citizen, not a source of conflict, noting that lawyers routinely appear before elected judicial and quasi-judicial officers for whom they have campaigned. It concluded the prior Board of Adjustment service created no bar, because that board's decisions were not appealable to the Board of Supervisors and the service was remote in time, distinguishing Michigan Opinion 179.

On the marital relationship, the opinion relied on its prior Opinion 62-15 and Opinion 75-21, concluding Arizona permits a husband-wife two-lawyer arrangement absent direct confrontation in a single matter, and that, although the former "appearance of impropriety" standard of DR 9-101 was gone, any appearance here was as distant as in the earlier opinion. On the earlier clerkship, the opinion concluded, citing an Idaho opinion and ABA Informal Opinion 906, that nothing suggested the lawyer gained factual knowledge that would infect a current representation, but added that if he ever recalled facts he touched in the clerkship that actually involved a present or future matter, he should decline or discontinue that representation.

Finally, the opinion held that whether the hiring supervisor should disqualify himself from matters the lawyer brought before the board was outside the committee's jurisdiction. It answered the question presented in the negative: the lawyer need not cease his representation or his practice before the board.

Currency note

This opinion was issued in 1986, before the State Bar of Arizona's adoption of the 2003 revisions to the 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: Does campaigning for an official disqualify a lawyer from appearing before that official?

A: No. The opinion treated political activity as a commendable public-citizen role and found no conflict barring the lawyer from appearing before elected officials for whom he had campaigned.

Q: Did the lawyer's wife working for a supervisor create a conflict?

A: The opinion concluded it did not, relying on prior opinions that permit a husband-wife arrangement absent direct confrontation in a single matter, and finding any appearance of impropriety distant on these facts.

Q: What about facts the lawyer might have learned in his earlier county clerkship?

A: The opinion found no indication he gained knowledge that would infect a current matter, but stated that if he ever recalled clerkship facts actually involving a present or future matter, he should decline or discontinue that representation.

Background and rules framework

The opinion was decided under the Arizona Rules of Professional Conduct adopted effective February 1, 1985, and against the backdrop of the committee's prior opinions under the former Code. It invoked the Preamble's description of the lawyer as a public citizen, noted that the former DR 9-101 "appearance of impropriety" standard had not been carried into the new rules, and applied the conflict principles now reflected in ER 1.7 (Model Rule 1.7). It relied on Arizona Opinions 62-15 and 75-21, Michigan Opinion 179, an Idaho opinion, and ABA Informal Opinion 906.

Citations and references

Rules of Professional Conduct:

• ER 1.7 / Model Rule 1.7 (conflict of interest; personal-interest conflicts)

Other opinions cited:

• Ariz. Op. 75-21 and Ariz. Op. 62-15: prior conflict and husband-wife practice opinions
• Michigan Opinion 179; ABA Informal Opinion 906

See also

• AZ Ethics Op. 86-07: Conflicts and Independent Judgment
• AZ Ethics Op. 85-02: Conflicts of Interest
• AZ Ethics Op. 04-04: Public Defender Conflicts and Screening
• RI EAP Op. 2010-07: Representing Both Clients at One's Deposition in the Other's Divorce Is Not a Conflict Where Interests Align

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=543

Original opinion text

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

7/1986

Past political activity of attorney on behalf of present or past county supervisors and past employment does not create a conflict of interest adverse to his client's best interest.

FACTS

This inquiry concerns the propriety of an attorney representing individual clients in appearances before a fiveperson Board of Supervisors and subsequent appearances in suits in Superior Court wherein the relief sought woula be to set aside earlier decisions of the Board of Supervisors as arbitrary or illegal.

Both before and after his admission to practice law, the inquiring attorney has been politically active in support of prior and present board members. He chaired campaigns for a former board member. Also, before being admitted to practice, the attorney acted as a clerk within the civil division of the County Attorney's office. He did not state whether he touched land use questions. Before being admitted to practice, the attorney also served one year as a member of the Board of Adjustment. That board is created by law and is independent of the Board of Supervisors. Its decisions are appealable directly to the Superior Court. Since admission to practice, the attorney has concentraced in land use issues. During three years with a firm concentrating in land use issues, he made or assisted in presentations to the Board of Supervisors and in suits in Superior Court seeking to overturn Board action. In 1982 the attorney married his wife, not an attorney, continued as an employee of the Family Support Section of the County Attorney's office. Her employment there was under Merit System provisions. In 1984 one of the candidates the inquiring lawyer supported was elected. The elected supervisor then hired the lawyer's wife as his administrative assistant. She successfully transferred her Merit System employment to the administrative assistant position. Her Merit System employment is unique among the administrative assistants of the Board members. The elected, hiring supervisor confirmed to the lawyer a procedure of total abstinence from individual communication with the lawyer concerning any matters before the Board involving any client of the inquiring lawyer. From his past experience, the lawyer has avenues of information to and from the Board and free-flowing communication with other members of the Board through channels totally separate from the abstaining supervisor and the lawyer's wife. The supervisor has advised the lawyer of the supervisor's total refusal to urge any employment of the lawyer for special services as legal counsel to the Board and has also indicated refusal to suggest or refer inquiring persons as clients to the inquiring lawyer.

As voluntary routine at initial meetings, the lawyer asks prospective clients if they have discussed any facet of their problem with either the mentioned board member or with his administrative assistant, the lawyer's wife. The lawyer has perfunctorily declined further consultation or representation with any prospective client affirmatively replying. Additionally, the lawyer stresses to prospective clients that his political activity history and his wife's place of employment is not and cannot be a basis of any information, nor hint of preference or adverse results. The lawyer represents an existing client in Superior Court. The client is attacking a Board of Supervisors' decision. The decision was three to two against the client's position. The hiring board member cast one of· the two negative votes against the offending decision. The lawyer has represented the appealing client in hearings before the Board of Supervisors and the Board of Health.

QUESTION

Does the lawyer's past political activity on behalf of present and past county supervisors, his employment history as a clerk in the County Attorney's Civil Division, his voluntary public service as a member of a public body separate from the Board of Supervisors, friendship with elected, presently adjudicating officials, or his wife's employment as assistant to one elected, adjudicating official, cause such a conflict of interest adverse to his client's best interests to demand his termination of existing client representation, or demand that he cease practice before the Board of Supervisors of a metropolitan Arizona county?

OPINION

First: The lawyer's political activity.

Whatever his personal preferences and motives for championing the worthiness of any present or former member of the Board of Supervisors, the lawyer's participation in attempting to raise public interest in the election process is commendable, not derogatory.

Any lawyer is 'a public citizen having special responsibility for the quality of justice." ( Preamble to Rules of Professional Conduct )

“As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession." (Preamble) In Arizona, in a majority of the counties, but a minority of the population, judges are selected by political process. Lawyers do and are expected to do the public service of enlightening the public about the qualities of indivilual candidates for judicial position. In the populous counties, the respective local bar associations conduct and publish polls of judicial qualities of judges. This writer finds absolutely no hint of conflict arising to restrict a lawyer from appearing on behalf of clients before judicial officers, quasi-judicial officers, administrative agencies, or other adjudicatory panelsupon which sit elected candidates for whom he has urged the public to vote.

Second: The earlier Board of Adjustment participation, as a member.

The question is covered by Michigan Opinion 179 ( Aug. 1960 ) ( 44 Mich. S.B.J. 245, July, 1965, cited at Maru, Digest of Bar Assn. Ethics Opinions, Para. 1353 ). There it was decided that a lawyer-member of a municipal board of Zoning

Appeals may represent clients before administrative officers, boards, or commissions only if decisions of these bodies may not be appealed to the Board of Zoning Appeals. Here, the lawyer's Board of Adjustment service was not as a lawyer. Here, the decisions of the Board of Adjustment ace not appealable to the Board of Supervisors. Further, it must be assumed that any Board of Adjustment service is chronologically so remote as to be extinct as to any present land-use representation in which the inquiring lawyer might engage.

Third: The marital relationship.

Arizona approves a husband-wife two-lawyer relationship to exist and function so long as there is no vis-a-vis confrontation in a single matter. (See our Opinion No. 62-15, November 1, 1982.)

The inquiry here touches many of the points earlier decided by this committee, functioning under the former Code. Our Opinion No. 75-21 (October 10, 1975) still controls. The direct dictate of former DR 9-101, "avoiding even the appearance of professional impropriety," is gone. The need is not. However, in this inquiry, the appearance is as equally distant as it was in Opinion No. 75-21.

Fourth: The earlier clerkship.

Idaho State Bar Opinion (16 Advocate 8, October, 1973, cited at Maru, 1975 Supp. to Digest of Bar Assn. Ethics Opinions, Para. 8266), citing ABA Informal Opinion 906, covers this point. The facts clearly point away from any possible factual knowledge by the inquiring lawyer having been gleaned during his distant clerkship that would infect any present client representation. Of course, should the lawyer ever have any recollection of facts he touched in his clerkship that do actually involve a present or future matter, he should decline or discontinue representation in that particular matter.

Fifth: The actions of the supervisor.

This committee has no jurisdiction to adjudge or dictatewhether or not the hiring supervisor should disquality himself from hearing any matter the inquiring lawyer brings before the board.

The question submitted is answered "no"; the inquiring attorney need not cease his representation or his practice.

© State Bar of Arizona 1986