When a city attorney advises both the city council and the mayor on the same matter and they take antagonistic positions, does that representation create a Rule 3-310(C) conflict of interest?

State Bar of California COPRAC Formal Opinion 2001-156: Conflicts of Interest When a City Attorney Advises Constituents Taking Adverse Positions

Short answer: The opinion concludes that whether a former Rule 3-310(C) conflict arises ordinarily depends on who the city attorney's client is, and that a city attorney generally has only one client (the city itself, acting through constituent sub-entities and officials per former Rule 3-600(A)). On the facts presented, the city attorney did not face a conflict in advising both the council and the mayor on the same borrowing ordinance, because under the city's charter neither the mayor nor the council had the legal authority to act independently of the city. A separate attorney-client relationship with a constituent sub-entity or official arises only when the constituent has lawful authority to act independently of the overall entity and takes a contrary position on a matter within that authority.

Currency note

This opinion was issued in 2001, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 3-310(C) and 3-600(A) and (D). Current Rules 1.7 and 1.13 now address these issues; the analysis below is rooted in the framework as it stood in 2001. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The hypothetical: the City of Prosperity's charter established the city as a municipal corporation with the council as the governing body. The city attorney was a full-time city employee, appointed by the mayor and confirmed by the council, with charter-given power to represent the city in litigation (subject to council direction) and to advise the council, other bodies, and officials including the mayor on legal questions. Facing a fiscal crisis, a council member moved to borrow $100 million in earmarked funds. The city attorney advised the council that the borrowing was lawful; the council adopted the ordinance. The mayor consulted the city attorney, received the same advice, disagreed, and accused the city attorney of a conflict of interest.

The committee began by observing that the same conflict-of-interest rules govern public-sector and private-sector lawyers (citing Santa Clara County Counsel Attys. Assn. v. Woodside (1994), People ex rel. Deukmejian v. Brown (1981), and Ward v. Superior Court (1977)), but that application of those rules in the governmental context must account for special features such as the difficulty of identifying the client. The committee then walked through the controlling framework: former Rule 3-310(C) focused on conflicts among multiple clients, which made client identification the threshold question. The committee identified two governing authorities: former Rule 3-600(A) ("the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement") and Civil Service Com. v. Superior Court (1984) 163 Cal.App.3d 70.

The committee read those authorities to support two propositions: first, a government lawyer ordinarily has only one client, the entity; second, a constituent sub-entity or official can become a separate client only if it has lawful authority to act independently of the main entity and is advised in that independent capacity. The committee illustrated with examples from Civil Service Commission (where a county civil service commission whose decisions on personnel matters had to be followed by the county unless overturned in court was held quasi-independent and a separate client) and contrasted Ward v. Superior Court. The committee added that district attorneys and public health officers have legal authority that cannot be controlled by the associated entity, and so they may be separate clients within their independent spheres.

On the facts, the committee concluded the city attorney had no conflict. The City of Prosperity's charter contemplated the city attorney advising both mayor and council; the charter reflected a policy that one city attorney covered all legal matters and that responsibility was divided among officers, none of whom could act independently of the city. The council's authority to adopt the ordinance and the mayor's authority to veto were both exercises of city authority through its officers; neither created an independent right of action. The committee distilled a two-part test: a conflict under former Rule 3-310(C)(1) arises only if both (a) the constituent sub-entities or officials have a right under the charter or other governing law to act independently of the governing body (so the dispute may end in litigation), and (b) they take contrary positions. Even where both elements are present, People v. Christian (1996), Civil Service Commission, and similar cases suggest courts may interpret the disqualification rules less rigorously in the government context.

The committee also flagged separately, under former Rule 3-600(D), that the city attorney must not mislead constituent sub-entities or officials who lack independent right of action into believing that confidential information they share will not be used in the city's interest if that interest is or becomes adverse.

Common questions

Q: Is a disagreement between a city council and the mayor automatically a conflict of interest for the city attorney?

A: Per the opinion, no. The committee held that the city attorney generally has only one client, the city itself, and so a disagreement among constituents (council vs. mayor) does not produce a Rule 3-310(C) conflict unless the constituent acted with independent legal authority and took a contrary position on a matter within that authority.

Q: What test does the opinion give for when a constituent becomes a separate client?

A: Per the opinion, the test has two elements: (a) the constituent sub-entity or official has a right under the charter or other governing law to act independently of the governing body, such that a dispute may end in litigation between the agency and the overall entity; and (b) the constituent takes a contrary position in the matter within the scope of that independent authority.

Q: What does the opinion cite as the leading example of an independent constituent?

A: Per the opinion, Civil Service Com. v. Superior Court (1984) 163 Cal.App.3d 70, where the San Diego County Civil Service Commission's decisions on personnel matters had to be followed by the county unless overturned on appeal. The commission's quasi-independence created the possibility of litigation against the county, and so the commission could become a separate client of the county counsel when advised on a matter within its independent jurisdiction.

Q: Does the opinion say district attorneys and public health officers are always separate clients?

A: Per the opinion, no; the analysis is limited to their truly independent spheres. The committee identified district attorneys' exclusive criminal-prosecution authority (Gov. Code § 26500) and public health officers' enforcement and emergency-declaration authority (Health & Saf. Code § 101030) as examples of independent rights of action.

Q: What if a constituent shares confidential information thinking the city attorney represents them?

A: Per the opinion, former Rule 3-600(D) requires the lawyer not to mislead a constituent with no independent authority into believing the constituent may communicate confidential information that will not be used in the city's interest. The lawyer must explain the identity of the client when adversity is or becomes apparent.

Background and rules framework

The opinion interprets former California Rules 3-310 (conflicts of interest) and 3-600 (organization as client). Former Rule 3-600 was adopted from ABA Model Rule 1.13. The opinion is one of the State Bar's principal treatments of the public-attorney client identification question. Functionally these correspond, in current numbering, to Rules 1.7 and 1.13 of the California Rules of Professional Conduct.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 1-100(D)(2) (non-member lawyers)
• Former California Rule 3-310, particularly 3-310(C)(1) and 3-310(C)(2)
• Former California Rule 3-600, particularly 3-600(A) and 3-600(D)

ABA Model Rules (referenced for comparison):

• ABA Model Rule 1.13, including Comment [6]

Statutes:

• California Government Code section 26500 et seq.
• California Government Code section 31520
• California Health and Safety Code section 4730 to 4730.1, section 101030 et seq.

Cases:

• Civil Service Com. v. Superior Court (1984) 163 Cal.App.3d 70, exception when constituent has independent authority
• Ward v. Superior Court (1977) 70 Cal.App.3d 23, government attorney has single entity client
• Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, government lawyers governed by same rules
• People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, governmental representation
• People v. Christian (1996) 41 Cal.App.4th 986, less rigorous interpretation of conflicts rules for government attorneys
• In re Lee G. (1991) 1 Cal.App.4th 17, key factor is independent right of action
• Walker v. City of Berkeley (9th Cir. 1991) 951 F.2d 182, due-process disqualification
• In re Richard H. (1991) 234 Cal.App.3d 1351, dual-role disqualification
• In re Katrina W. (1994) 31 Cal.App.4th 441, dual-role disqualification
• In re Candida S. (1992) 7 Cal.App.4th 1240, dual-role disqualification
• Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, advocate/adviser dual role
• Castro v. Los Angeles Bd. of Supervisors (1991) 232 Cal.App.3d 1432, public vs. private financial motives
• Anderson v. Eaton (1930) 211 Cal. 113, conflicting duties
• People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, attorney-client relationship formation
• Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, scope of "organization" under former Rule 3-600(A)
• McClain v. County of Alameda (1962) 209 Cal.App.2d 73, multi-office officials
• Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, district attorney authority

Other opinions cited:

• Los Angeles County Bar Formal Opinion No. 459 (public-lawyer rules)
• 80 Ops.Cal.Atty.Gen. 36 (1997) (public attorney advising both governmental entity and independent retirement board)
• 80 Ops.Cal.Atty.Gen. 127 (1997) (ethical walls)
• 82 Ops.Cal.Atty.Gen. 126 (1999) (multi-office officials)

See also

• CA COPRAC Op. 2014-191: Concurrent Representation Debtor-Creditor
• CA COPRAC Op. 2015-192: Withdrawal and Client Confidences
• CA COPRAC Op. 1998-152: Imputed Knowledge and Former Client Consent

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original HTML: https://www.calbar.org/ethics/Opinions/2001-156.htm

Original opinion text

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

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 2001-156

ISSUES:

Under rule 3-310(C) of the California Rules of Professional Conduct, does a conflict of interest arise when constituent sub-entities or officials of a city (e.g., the city council and the mayor) seek legal advice on the same matter and the constituents' positions on the matter are antagonistic?

DIGEST:

Whether a conflict of interest arises under rule 3-310(C) of the California Rules of Professional Conduct ordinarily depends on a determination of the city attorney's client. An attorney who represents an entity generally has only one client, the entity itself. This is true when an attorney represents a private corporation, which acts through its directors, officers, and others. This also is generally true when an attorney represents a municipal corporate entity, which acts through its constituent sub-entities and officials. Consequently, since the constituent sub-entities and officials of a city are normally not separate clients of the city attorney, a city attorney's provision of legal advice on the same matter to constituent sub-entities and officials will not necessarily give rise to a conflict of interest even if the constituent sub-entities and officials take contrary positions on the matter. In representing the client, the city attorney, like a private attorney, "shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement" as required by rule 3-600(A). Constituent sub-entities may become separate clients only if they have lawful authority to act independently of the public entity and if they take a position contrary to the overall public entity's position on a matter within the ambit of the constituent sub-entities' independent authority.

AUTHORITIES INTERPRETED:

Rules 3-310 and 3-600 of the California Rules of Professional Conduct.

STATEMENT OF FACTS

The charter of the City of Prosperity establishes the city as a municipal corporation with the council as the governing body except as elsewhere provided in the charter. The city attorney is appointed as a full-time employee of the city by the mayor and is confirmed by the council. The charter gives the city attorney the power to represent the city in litigation, subject to council direction, and to advise the council, other city bodies, and city officials (including the mayor) on legal questions. The city faces a fiscal crisis, and a member of the city council introduced a motion to supplement the city's general fund by borrowing $100 million in earmarked funds. City law requires an ordinance to approve such borrowing, which must be adopted by the city council. The mayor can either approve the ordinance or veto it. If the mayor vetoes the ordinance, the council can then override the mayoral veto by a three-quarters vote.

After consulting the city attorney, who opined that the borrowing would be lawful, the council adopts the ordinance. The mayor also consults the city attorney concerning the ordinance and receives the same legal advice. The mayor disagrees with the advice and accuses the city attorney of having a conflict of interest in advising both the council and the mayor in the matter.

The Committee has been asked to provide guidance on whether these facts present a conflict of interest governed by rule 3-310(C) of the California Rules of Professional Conduct.

DISCUSSION

1. Although Attorneys in the Public Sector Are Governed by the Same Conflict of Interest Rules as in the Private Sector, the Application of the Rules Must Take Into Account Factors Peculiar to the Government Context.

All members of the State Bar of California, including those who represent governmental entities, are governed by the Rules of Professional Conduct. (See Santa Clara County Counsel Attys. Assoc. v. Woodside (1994) 7 Cal.4th 525; People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150, 157; Ward v. Superior Court (1977) 70 Cal.App.3d 23, 32-33; and L.A. County Bar Assn. Formal Opinion No. 459.)

The courts have, however, articulated special considerations applicable to evaluating claims of conflict of interest in the public sector. For example, in In re Lee G. (1991) 1 Cal.App.4th 17, 34, the Court of Appeal pointed out that the conflict of interest "rules developed in the private sector . . . do not squarely fit the realities of public attorneys' practice." (See also People v. Christian (1996) 41 Cal.App.4th 986, 999.)

Application of the rules, especially conflict of interest rules, in the governmental context is complicated by the difficulty of identifying the client of the government attorney. Although attorneys in the public sector are governed by the same conflict of interest rules as those in the private sector, the application of the rules must take into account factors peculiar to the governmental context (See Ward v. Superior Court, supra, 70 Cal.App.3d at p. 30.)

2. Whether the City Attorney Faces a Conflict of Interest Ordinarily Depends on Who Is the City Attorney's Client.

Rule 3-310(C) provides, in part:

"A member shall not, without the informed and written consent of each client:

(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or

(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict . . . ."

Since rule 3-310(C)(1) is framed in terms of an attorney's potential conflicts in representing two or more clients in the same matter, it is necessary to identify the attorney's clients in order to ascertain the existence of potential conflicts. There appears to be no case or statutory authority which provides a definitive test for determining if and when a constituent or official of a main governmental entity ought to be characterized a client of the attorney for the main entity. However, taken together, rule 3-600 and the case of Civil Service Com. v. Superior Court (1984) 163 Cal.App.3d 70 (hereinafter Civil Service Commission) are instructive. They are authority for two propositions: (1) that an attorney for a governmental entity usually has only one client, namely, the entity itself, which acts through constituent sub-entities and officials; and (2) that a constituent sub-entity or official may become an independent client of the entity's attorney only if the constituent sub-entity or official possesses the authority to act independently of the main entity and if the entity's attorney is asked to represent the constituent sub-entity or official in its independent capacity. (See Ward v. Superior Court, supra, 70 Cal.App.3d 23; see also 80 Ops.Cal.Atty.Gen. 36 (1997) [a public attorney may advise both the governmental entity and its independent retirement board as long as the written consent of both clients was obtained]; Castro v. Los Angeles Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1441 [different financial motives between the public and private sectors].) Thus, no conflict for the governmental attorney is created by a disagreement between a government entity and its constituents, or between constituents of the entity; a conflict can occur only in the unusual situation of a constituent or official with this independent right of action that might require the attorney "to choose between conflicting duties . . . ." (Anderson v. Eaton (1930) 211 Cal. 113, 116.)

A. Rule 3-600

Rule 3-600 suggests this approach. Paragraph (A) of this rule provides:

"In representing an organization, a member shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement."

Although this rule does not explicitly indicate that a governmental entity is an organization within the scope of the rule, the Committee believes that the rule applies to a municipal corporation and is best viewed as applicable to all governmental entities. In general, the scope of rule 3-600(A) has been broadly construed in case law involving non-governmental settings. In particular, the drafters' intent for the rule to apply to attorneys for governmental entities may be inferred from the citations found in the discussion after the rule, which include a reference to People ex rel. Deukmejian v. Brown, supra, 29 Cal.3d 150, a case involving representation of governmental entities.

B. Civil Service Commission

Civil Service Commission also supports this approach. Civil Service Commission explicitly addresses the identity of the client issue in the context of an intramural dispute in which the public attorney advised both the disputants. Like Rule 3-600, Civil Service Commission affirms the general proposition that a governmental attorney ordinarily has only one client, namely the overall entity itself. However, it also articulates an exception to the general proposition.

The facts of Civil Service Commission are as follows. The County of San Diego fired two employees. The San Diego County Civil Service Commission (hereinafter SDCCSC) ordered their reinstatement. The county counsel's office had advised both the SDCCSC and the county department involved. The county, acting through its Board of Supervisors and represented by the county counsel, sued the SDCCSC in superior court seeking to overturn the reinstatements. The SDCCSC sought to disqualify the county counsel from representing the county against the SDCCSC. The superior court denied the disqualification motion.

The Court of Appeal reversed the superior court and held that the county counsel's office, which had advised the SDCCSC in connection with the termination, could not represent the county against the SDCCSC in the resulting litigation. The Court of Appeal focused on section 904.1 of the San Diego County Charter, which stated that the SDCCSC decisions on personnel matters shall be followed by the county unless overturned by the courts on appeal. (Civil Service Commission, 163 Cal.App.3d at p. 77.) The court, in distinguishing Ward v. Superior Court, supra, 70 Cal.App.3d 23, relied on the fact that, based on the charter provision, the SDCCSC was "quasi-independent" from the county, so that litigation between it and the county could ensue. The court concluded that the SDCCSC itself could become a client of the county counsel and that a separate attorney-client relationship had therefore been created between the county counsel and the SDCCSC when he advised the SDCCSC about the matter which was subsequently the subject of the suit by the county against the SDCCSC. The court stated (Civil Service Commission, 163 Cal.App.3d at p. 78):

"We are able to accept the general proposition that a public attorney's advising of a constituent public agency does not give rise to an attorney-client relationship separate and distinct from the attorney's relationship to the overall government entity of which the agency is a part. Nonetheless we believe an exception must be recognized when the agency lawfully functions independently of the overall entity. When an attorney advises or represents a public agency with respect to a matter as to which the agency possesses independent authority, such that a dispute over the matter may result in litigation between the agency and the overall entity, a distinct attorney-client relationship with the agency is created."

In the case of In re Lee G., supra, 1 Cal.App.4th 17, the Court of Appeal restated that the key factor in this analysis is the constituent agency's independent right of action. It stated: "Our decision in part [in Civil Service Commission] was based on the quasi-independent nature of the commission, which had independent authority over matters within its jurisdiction. [Citation.]" (Id. at p. 32, fn. 10.)

Civil Service Commission stands for two principles: (1) that in the usual situation a public attorney has only one client, which is the overall governmental entity; and (2) that there is a potential for a separate attorney-client relationship between the government attorney and a constituent sub-entity or official which has the legal authority to act independently of the main entity. In this limited circumstance, the court found that a constituent sub-entity or official may become a client in its, his, or her own right. Independent action for this purpose must be differentiated from a grant of discretionary authority from an entity to a constituent sub-entity or official. For example, a city council might authorize its building department to issue permits conforming to law and to policies set by the entity, acting through the council and mayor. The authority flows from and through the entity; the hypothetical building department lacks authority to depart from standards set by the entity; and any digressions by the building department are subject to correction short of litigation.

By comparison with Civil Service Commission, district attorneys and public health officers, among others, have legal authority to take certain actions within their spheres which do not comport with the wishes of the governmental entities with which they are associated. The discretion of district attorneys regarding what cases to prosecute and how to deploy staff and the discretion of public health officers to declare public health emergencies are not subject to control by the associated governmental entities. Their actions, within their legal spheres of operation, may only be attacked in court. It is only this truly independent right of action that can give rise to a conflict of interest for a public attorney.

3. Under the Facts Presented, the City Attorney Does Not Have a Conflict of Interest.

The charter of the City of Prosperity requires the city attorney to provide advice on legal questions to the mayor and city council. It therefore contemplates no conflict in these roles. The charter is a legislative enactment which reflects a policy determination that a single city attorney is responsible for all legal matters involving the city and that the city is a single municipal corporation with responsibility for its operations divided among various officers, none of whom is given the power to act independently of the city. As a result, neither the mayor nor the city council, independent of the city itself, established an attorney-client relationship with the city attorney by seeking legal advice on proposed ordinances, because neither had the potential to become the city attorney's client against the other. The city attorney does not represent the city council or the mayor; in advising the council and the mayor, the city attorney represents the municipal corporation as an indivisible unit. There is no attorney-client relationship formed with the component parts, because the component parts cannot function as independent entities under the City of Prosperity's charter.

This is not to say that conflicts and grounds for disqualification never arise for public attorneys. Other circumstances may give rise to a conflict or require recusal where the rights of third parties are involved. Public attorneys need to keep these other potential situations in mind. For example in Walker v. City of Berkeley, supra, 951 F.2d 182, a public attorney who was counsel to a decision-making body in administrative hearings was disqualified from defending a wrongful termination suit by a former employee based upon considerations of due process. Similarly, conflicts may arise in proceedings involving minors and parents. (See In re Richard H., supra, 234 Cal.App.3d 1351; In re Katrina W. (1994) 31 Cal.App.4th 441.)

CONCLUSION

The following two-part test is a tool that can assist in determining whether a city attorney faces a potential conflict of interest governed by rule 3-310(C)(1) when asked to advise different bodies or officials within the city government regarding a matter: Do constituent sub-entities or officials (a) have a right to act independently of the governing body of the entity under the city charter or other governing law so that a dispute over the matter may result in litigation between the agency and the overall entity and (b) have contrary positions in the matter. Both elements must be present to create a potential conflict of interest governed by rule 3-310(C)(1). Even when both elements are present, the result for disqualification purposes is not always predictable under current law. People v. Christian and Civil Service Commission, as well as other cases cited above, suggest that a court might be less rigorous in interpreting the scope of the Rules of Professional Conduct relating to conflicts of interest when applied to governmental attorneys than to other attorneys.

Finally, regardless of any issue of conflict of interest and consistent with rule 3-600(D), a city attorney must not mislead constituent sub-entities or officials who have no right to act independently of the governing body of the entity and who are seeking advice in their individual capacity into believing that they may communicate confidential information to the city attorney in such a way that it will not be used in the city's interest if that interest is or becomes adverse to the constituent or official.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.