In Kentucky, if a lawyer is a city alderman, may other members of the lawyer's firm represent clients before the local planning commission?

Plain-English summary

A lawyer who served as an alderman for the City of Louisville, and who was affiliated with a law firm, asked whether other members of the firm could represent clients before the Louisville and Jefferson County Planning Commission. The Committee answered yes. It understood that, if the alderman was not a member of the Board of Aldermen's Committee on Zoning/Inspections, Permits, and Licenses, the alderman's only role in a zoning change arose when the full Board voted on the legislative adoption of the Planning Commission's recommendation.

The Committee distinguished E-347, which addressed a firm member who sat on the Zoning Board or Planning Commission itself. Here, firm members would not be disqualified if the alderman was not on the zoning committee, recused from any vote on a city ordinance involving a land-use or zoning change sought by a firm client, recused from any vote appointing persons to the Planning Commission's board (where firm members regularly appear before it), and the firm implemented appropriate conflict-control and screening procedures. The opinion drew those safeguards from Matter of Ethics Opinion No. 74-28, 111 Ariz. 519, 533 P.2d 1154 (1975), which conditioned firm appearances on the public-official lawyer staying out of firm matters before the body, separating accounts so the official shares no fees from such appearances, and avoiding participation in selecting members of the bodies before which the firm appears. Finally, citing Rule 8.3(d), the opinion noted the firm should not reference the alderman's public office in its advertising or promotional literature.

Currency note

This opinion was issued in 1994 and predates the Kentucky Supreme Court's substantial 2009 revisions to the Rules of Professional Conduct (SCR 3.130); the Kentucky Bar Association notes that Rule 8.3 was later renumbered to Rule 8.4. Lawyers should consult the current version of the rules before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a firm appear before the planning commission when a partner was a city alderman?

A: Yes. The opinion concluded firm members were not disqualified, provided the conditions on recusal and screening were met and the alderman was not on the relevant zoning committee.

Q: How was this different from a firm member sitting on the zoning board itself?

A: The opinion distinguished E-347, which dealt with a firm member who was a member of the Zoning Board or Planning Commission; an alderman off the zoning committee occupied a more limited role.

Q: Could the firm advertise its lawyer's public office?

A: No. Citing Rule 8.3(d), the opinion stated the firm should not reference the attorney's public office in its advertising and promotional literature.

Background and rules framework

The opinion interprets KRPC 1.7 (conflicts of interest; Model Rule 1.7) for the firm's appearances against the city's interests, and KRPC 8.3(d) (later 8.4(d); Model Rule 8.4) on stating or implying an ability to improperly influence a government agency. It borrows concrete screening conditions from the cited Arizona authority.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / KRPC 1.7 (conflicts of interest)
• MR 8.4(d) / KRPC 8.3(d) (implying ability to influence a government agency or official)

Cases:

• Matter of Ethics Opinion No. 74-28, 111 Ariz. 519, 533 P.2d 1154 (1975), screening conditions for firm appearances before public bodies

Other opinions cited:

• KBA E-347: firm member who sits on the zoning board or planning commission

See also

• KBA Ethics Op. E-363: City Contract Lawyer Defending Criminal Cases
• KBA Ethics Op. E-373: Law Firm Subsidizing a Prosecutor's Office
• KBA Ethics Op. E-386: A Prosecutor's Spouse Practicing Criminal Defense

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-371.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-371
Issued: November 1994

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme Court has adopted various amendments, and made substantial revisions in 2009. For example, this opinion refers to Rule 8.3, which was renumbered to Rule 8.4. Lawyers should consult the current version of the rules and comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

If "Lawyer" is an Alderman for the City of Louisville and is also affiliated with Law Firm (a partner, associate, of counsel, or contract lawyer), may other members of Law Firm represent clients before the Louisville and Jefferson County Planning Commission?

Answer:

Yes.

References:

KBA E-347; Matter of Ethics Opinion No. 74-28, 111 Ariz. 519, 533 P.2d 1154 (1975). OPINION

It is our understanding that if an alderman is not a member of the Board of Aldermen's Committee of Zoning/Inspections, Permits, and Licenses, then the alderman's only responsibility in connection with a request for a zoning change arises when the Board votes on the legislative adoption of the Planning Commission's recommendation. In our opinion, the circumstances presented by this request for an opinion are distinguishable from those presented in E-347 (member of the firm is a member of the Zoning Board or Planning Commission). If Lawyer is not a member of the Board's Committee on Zoning/Inspections, Permits and Licenses, if Lawyer recuses himself or herself from any vote on a city ordinance that involves a land use or zoning change sought by a client of the firm, if Lawyer recuses himself or herself from any vote on the appointment of any person to the Board of Directors of the Planning Commission (if members of Law Firm regularly represent clients before that body), if appropriate conflict control and screening procedures are implemented by the firm, then members of Law Firm are not disqualified from appearing on behalf of clients before the Planning Commission or before the Board of Aldermen (when the Board is reviewing the Planning Commission's recommendation). By appropriate conflict and screening procedures we have in mind those set fourth in Matter of Ethics Opinion No. 74-28, 111 Ariz. 519, 533 P.2d 1154 (1975), wherein the court observed: Members of the firm may appear before city boards and commissions if:

1) the attorney public official refrains from any matters handled by the firm with the members of the board or commission or with employees of the city or members of the city council; 2) there is a separation of accounts so that the attorney public official in no way shares in the fees or other remuneration received by the firm for such appearances, and 3) the attorney public official avoids participation in the selection of members of boards or commissions before which his firm regularly appears. Finally we note that Rule 8.3(d) provides that "[i]t is professional misconduct for a lawyer to: state or imply an ability to influence improperly a government agency or official; ... ." Accordingly, the firm should not include any reference to the attorney's public office in its advertising and promotional literature.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.