Can town counsel sue a town agency she is currently representing in unrelated litigation, at the selectmen's direction?
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This page answers the general question as of 1994. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A town counsel was directed by the board of selectmen to sue a town agency for a declaratory judgment that certain capital expenditures required voter approval. The agency had its own independent counsel on the expenditures, but town counsel had advised it from time to time and was currently representing it, in a limited role following a co-defendant agency's lead, in an unrelated appeal on questions of law. Town counsel held no confidences relevant to the proposed suit and asked whether her current representation of the agency barred her from suing it.
The committee recalled the general rule that a lawyer may not simultaneously represent and be adverse to a client absent consent, and may not do so even with consent unless it is obvious the lawyer can adequately represent each (DR 5-105(C)). But in Opinion 89-2 it had concluded, following the SJC, that DR 5-105 should not apply as rigidly to conflicts between agencies of the same municipality, because town counsel is hired to represent the town's governing board and representation of subordinate units derives from that primary relationship. A rigid rule would cause havoc in municipal representation. This inquiry went a step further than 89-2 because town counsel was actually representing the agency in pending litigation, not merely a regular but currently inactive client.
The committee concluded the SJC would resolve the competing considerations case-by-case, with the nature of the litigation critical. The strongest case for disqualification is where both matters involve the agency's credibility or performance, since attacking those would compromise loyal, independent representation. This was the weakest case: the pending matter was minimal appellate work on pure questions of law, and the proposed suit involved a question of law not calling the agency's credibility or performance into question, so it posed no substantial threat to her representation of the agency and did not strain loyalty as two private representations would. The committee added that, although a private lawyer may not cure a simultaneous-representation conflict by withdrawing (Opinion 92-2), the same public-policy considerations might lead the SJC to allow town counsel to withdraw from the pending agency matter if that could be done with little prejudice, and suggested she discuss that possibility with the agency.
Currency note
This opinion was issued in 1994, 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: Can town counsel sue an agency she currently represents in another case?
A: In narrow circumstances, yes. The committee concluded the municipal-conflict rules apply case-by-case, and on these facts, unrelated matters, no relevant confidences, limited appellate work, no attack on the agency, the suit was permissible.
Q: What fact would most likely require disqualification?
A: When both matters involve the agency's credibility or performance. The committee said attacking the agency's credibility or performance in one matter while defending it in another would compromise the lawyer's loyalty and independent judgment.
Q: Could town counsel withdraw from the agency case to solve the problem?
A: Possibly. The committee noted that, although a private lawyer cannot cure a simultaneous-representation conflict by withdrawal, the SJC might allow it in the municipal context if done with little prejudice, and suggested discussing it with the agency.
Background and rules framework
The opinion applied the predecessor disciplinary rule DR 5-105 (prohibition on simultaneous adverse representation absent consent and obviousness of adequate representation), corresponding to Model Rule 1.7, in the government-entity context (Model Rule 1.13). It relied on McCourt Co. v. FPC Properties and on its Opinions 89-2 and 92-2.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / DR 5-105 (concurrent conflicts; simultaneous adverse representation)
- Model Rule 1.13 (government entity as organizational client)
Cases:
- McCourt Co., Inc. v. FPC Properties, Inc., 386 Mass. 145 (1982) (general rule against simultaneous adverse representation)
Other opinions cited:
- MBA Opinion 89-2 (case-by-case treatment of municipal-agency conflicts)
- MBA Opinion 92-2 (a private lawyer may not cure a simultaneous-representation conflict by withdrawal)
See also
- MA Bar Ethics Op. 94-9: Bond counsel to the state and conflicts with other agencies
- MA Bar Ethics Op. 03-1: City lawyer opposing a former official
Source
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