COBAR June 3, 1972

Can a lawyer who serves as counsel to a public body, like a county or special district, represent private clients in matters before that body?

Short answer: The opinion concluded that a lawyer who represents a governmental body has the responsibilities of a public official and may not represent a client in a matter before that body that creates a conflict or implies improper influence; the lawyer's firm is generally disqualified as well.

Apply this to your situation

This page answers the general question as of 1972. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

Opinion 48 (adopted June 3, 1972; revised May 18, 1997) addressed whether a lawyer (or the lawyer's firm) who serves as counsel to a public or quasi-public governmental body may represent clients before that body. The opinion addresses only the Rules of Professional Conduct, not the Colorado Code of Ethics (C.R.S. 24-18-101 et seq.) or any conflict rules a governmental entity may have adopted.

The Committee concluded that a lawyer representing a governmental body assumes the responsibilities of a public official and may not represent a client where the representation results in a conflict of interest or implies improper influence over a government agency or official. Applying Rule 1.7(a), representation of clients in matters before the body is directly adverse to the body's interests, so the body's lawyer may not undertake it without client consent. Under Rule 1.7(b), the lawyer's responsibilities to the governmental body would materially limit the representation, given the great risk that the body's interests would be fundamentally antagonistic to the client's. Under Rule 8.4(c) (and the parallel 8.4(e) concern), a lawyer may not engage in conduct implying an ability to influence a governmental agency or official improperly, and dual roles create a great risk that the public will believe improper influence has occurred. The Committee gave concrete examples: a county attorney may not represent a liquor-license applicant, a subdivider presenting a plat, or a property owner in an easement-acquisition matter before the Board of County Commissioners, and a special-district lawyer may not represent an employee's workers' compensation claim against the district. Such representation would violate Rules 1.7(b) and 8.4(e). On imputation, the Committee concluded that under Rule 1.10 the firm is generally disqualified too, and that even where a Rule 1.10 conflict might be waived, Rule 8.4(c) would still preclude the firm's representation because hiring the firm implies more favorable treatment; the firm should prudently assume disqualification.

Currency note

This opinion was adopted in 1972 and revised May 18, 1997 to apply the Colorado Rules of Professional Conduct (effective January 1, 1993); it predates Colorado's 2008 revisions to those rules. It applies Rules 1.7(a) and (b), 8.4(c) and (e), 1.10, and 1.11; the consent provisions of Rule 1.7 were reorganized in 2008 and the conflict and imputation rules have since changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a county attorney represent a private client in a matter before the county commissioners?

A: No, under this opinion. The Committee concluded that representing a liquor-license applicant, a subdivider, a property owner in an easement matter, or other clients before the Board of County Commissioners violates Rules 1.7(b) and 8.4(e).

Q: Why is representing a client before the lawyer's own governmental body a problem?

A: The opinion concluded that the lawyer has the responsibilities of a public official, the body's interests are likely antagonistic to the client's (materially limiting the representation under Rule 1.7(b)), and the dual role creates a great risk the public will believe improper influence has occurred under Rule 8.4.

Q: Does the conflict disqualify the lawyer's whole firm?

A: Generally yes. The opinion concluded that under Rule 1.10 the firm is generally disqualified, and that even if a Rule 1.10 conflict were waived, Rule 8.4(c) would still preclude the firm, so the firm should prudently assume disqualification.

Background and rules framework

The opinion applied the Colorado Rules of Professional Conduct: Rule 1.7(a) and (b) (conflicts of interest), Rule 8.4(c) and (e) (implying an ability to influence improperly), Rule 1.10 (imputation), and Rule 1.11 (former and current government officers, in the comment). The corresponding Model Rules are 1.7, 8.4, 1.10, and 1.11. The Committee cited Iowa Ethics Opinion 91-49.

Citations and references

Rules of Professional Conduct:

Colo. RPC 1.7(a), (b) / Model Rule 1.7 (conflicts of interest)
Colo. RPC 8.4(c), (e) / Model Rule 8.4 (implying an ability to influence improperly)
Colo. RPC 1.10 / Model Rule 1.10 (imputation of conflicts)
Colo. RPC 1.11 / Model Rule 1.11 (government officers and employees)

Statutes:

C.R.S. sections 24-18-101 et seq. (Colorado Code of Ethics; noted as outside the opinion's scope)

Other opinions cited:

Iowa Ethics Opinion 91-49 (conflicting loyalties of public-servant advocates)

Source

Landing page: https://www.cobar.org/ethicsopinions
Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_48_2011.pdf

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