Can a municipal solicitor represent the city before a zoning board that the solicitor also represents?

Plain-English summary

A mayor asked the municipal solicitor to represent the municipality before the Zoning Board of Appeals on variances needed to sell municipally owned land. The municipal charter made the solicitor the lawyer for all boards, commissions, and officers, and the solicitor had previously represented and rendered opinions to the Zoning Board. The committee starts from prior Opinions 94-2 and 89-2 and from Supreme Judicial Court decisions holding that conflict-of-interest rules are not applied to government agencies with the same rigor as to private parties. It points to Scope Comment 4 and the special Massachusetts Comment 8A to Rule 1.7, which recognize that government lawyers may represent conflicting governmental interests in circumstances where a private lawyer could not.

The committee treats the Zoning Board as a current client, likely so by the continuing pattern of representation and possibly by the charter itself, and notes the Board acts as a "tribunal" (an adjudicatory body under Rule 9.1(o)) when the solicitor appears before it. A private lawyer could not appear before a tribunal that is his own client without disclosure and consent, and doing so could implicate Rule 8.4(f) and the Code of Judicial Conduct. The committee concludes this case is different: the solicitor's representation of the Board and his appearance before it are both contemplated and mandated by the charter, the representation is official rather than personal (so any fear of partiality is less reasonable), and the dual role is a common and generally accepted feature of agency lawyering.

The committee qualifies its conclusion with the word "normally." An appearance would be prohibited by Rule 1.7(b) if, for example, the solicitor believed his relationship to Board members would materially limit his ability to attack the Board on appeal from an unfavorable ruling. A second disabling conflict could arise if the municipality's case required the solicitor to urge a view of variance law contrary to advice he had given or would give the Board, which the committee concludes could not be cured under Rule 1.7(a)(1) or 1.7(b)(1). The solicitor, not the committee, is positioned to know whether those problems are present. The committee adds that good practice suggests making clear that the solicitor appears as the municipality's advocate and is not advising the Board in the matter.

In practice

Under this opinion, conduct in which a municipal solicitor appears before a client agency in an unrelated adjudicatory matter is normally permitted, given the charter mandate and the special latitude the rules extend to government lawyers. Per the opinion, the appearance is prohibited under Rule 1.7(b) where the solicitor's relationship to Board members would materially limit his ability to challenge the Board, or where the representation would require him to contradict advice he has given or would give the Board, a conflict the committee concludes could not be cured by consent. The committee notes the solicitor is best positioned to assess whether either problem exists.

Common questions

Q: Can a municipal solicitor appear before a board he also represents?

A: The committee concludes it is normally permissible, because the dual role is mandated by the municipal charter, the representation is in the board's official capacity, and it is a common feature of agency lawyering.

Q: Why is this allowed when a private lawyer could not do it?

A: The committee relies on the special government-lawyer provisions in the rules (Scope Comment 4 and Massachusetts Comment 8A to Rule 1.7) and on Supreme Judicial Court decisions applying conflict rules less rigorously to governmental interests.

Q: When would the appearance be prohibited?

A: Under Rule 1.7(b), if the solicitor's relationship to board members would materially limit his ability to attack the board on appeal, or if the case required him to contradict advice he has given or would give the board, the committee concludes the conflict could not be cured.

Background and rules framework

The opinion interprets Mass. R. Prof. C. 1.7 (concurrent conflicts, including special Comment 8A on government lawyers) and references Rule 8.4(f) (assisting a judge in violating judicial-conduct rules) and the Rule 9.1(o) definition of "tribunal." These correspond to the Model Rules, with Massachusetts-specific government-lawyer commentary.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Mass. R. Prof. C. 1.7 and 1.7(b) (concurrent conflicts; Massachusetts Comment 8A on government lawyers)
• Mass. R. Prof. C. 8.4(f) (assisting a judge in violating judicial-conduct rules)
• Mass. R. Prof. C. 9.1(o) (definition of "tribunal")

Cases:

• IBM v. Levin, 579 F.2d 271 (3d Cir. 1978) (current-client status from a continuing pattern of representation)

Other opinions cited:

• MBA Opinion 94-2 (town counsel litigating for selectmen against a subordinate agency)
• MBA Opinion 89-2 (government-lawyer conflict analysis)

See also

• MA Bar Ethics Op. 09-01: GAL reviewing the lawyer's own prior fees
• MA Bar Ethics Op. 07-02: Agency lawyer later serving as commissioner
• MA Bar Ethics Op. 06-01: Lawyer as executor and counsel (Rule 1.7)

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2004-opinion-2004-3/opinion-2004-3