Can a firm represent a town's school board while also defending criminal clients in cases brought by the town's police?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A law firm asked whether it could represent a local school board in matters the municipal solicitor could not handle, while at the same time representing criminal defendants in cases where town police officers were the complainants. The committee distinguished its earlier Opinion 78-1, which had barred a town counsel or town prosecutor (and their firms) from defending any criminal case in which the town or its police were involved. Here the firm would not represent the municipality's interests generally, only those of the school committee, an independently elected body that the police department neither manages nor operates, and the municipal solicitor would have no supervisory role.
The question under DR 5-105(A) was whether the firm's independent professional judgment for either the criminal defendant or the school committee would be adversely affected, or whether the firm would be representing "differing interests." The concern was that both the school committee and the police are arms of the same municipal government, an analogy to representing a parent company while suing its subsidiary, which the Supreme Judicial Court had held DR 5-105 prohibits absent consent and the objective test of DR 5-105(C) (The McCourt Co. v. FPC Properties).
The committee concluded the SJC would not extend that reasoning, at least not as a prophylactic rule, to different branches of municipal government. Suing a subsidiary has direct financial consequences for the consolidated corporate unit that are absent here; the police and school committee operate separately and the school committee is independently elected; and public bodies should not be unduly restricted in obtaining counsel when their regular lawyer cannot act. The rules should focus on the actual operation of the units and the facts of the particular matters, not treat the whole municipal government as one client. So the firm could undertake both representations so long as they did not impinge on one another. DR 5-105(A) would, for example, bar the firm from defending a client charged with damaging school property while representing the school committee, a case in which DR 5-105(C)'s objective test likely could not be met. Other municipal agencies must be evaluated case by case. The committee did not address Chapter 268A, a question of substantive law.
Currency note
This opinion was issued in 1988, before Massachusetts's adoption of the 2015 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: Are all branches of a municipal government treated as one client for conflict purposes?
A: Per the opinion, no. The committee declined to treat the entire municipal government as a single unit and instead focused on how the units actually operate and the facts of the particular matters. An independently elected school committee is not the same client as the police department.
Q: When would defending a criminal client conflict with representing the school committee?
A: When a specific case pits the two against each other, for example defending a client charged with damaging public school property. The committee said DR 5-105(A) would bar that and that DR 5-105(C)'s objective consent test likely could not be satisfied.
Q: Why did this come out differently from the parent-subsidiary rule in McCourt?
A: The committee said suing a corporate subsidiary has direct financial implications for the consolidated entity that are absent when a firm represents a school committee while defending an unrelated criminal client, and that the units here operate separately, with the school committee independently elected.
Background and rules framework
The opinion applied DR 5-105(A) (declining employment likely to involve representing differing interests) and DR 5-105(C) (the consent-plus-objective test for multiple representation). Those correspond today to Model Rule 1.7 (concurrent conflicts of interest and informed consent). Because the client was a unit of government, the analysis also implicates Model Rule 1.13 (organization as client), in identifying who the client is. The committee relied on the SJC's parent-subsidiary holding in The McCourt Co. v. FPC Properties to frame, and then to distinguish, the differing-interests question.
Citations and references
Rules of Professional Conduct:
- DR 5-105(A) and (C) / Model Rule 1.7 (concurrent conflicts; consent and objective test)
- Model Rule 1.13 (organization, including governmental unit, as client)
Cases:
- The McCourt Co., Inc. v. FPC Properties, Inc., 386 Mass. 145 (1982) (representing a parent while suing its subsidiary falls within DR 5-105)
Other opinions cited:
- MBA Opinion 78-1: town counsel/prosecutor and firm barred from cases involving the town or its police
See also
- MA Bar Ethics Op. 89-2: Town counsel opposing a board the town also retains it to advise
- MA Bar Ethics Op. 88-2: A former government lawyer opposing a former agency
Source
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