Does a lawyer who also serves as a county commissioner have a conflict of interest when he sues towns located within his county on behalf of private clients?

Plain-English summary

A lawyer who also served as a county commissioner was handling two cases against municipalities located in his county. In the first, he represented the estate of a passenger killed in a crash that resulted from a high-speed police chase, alleging negligence by officers of town A, with the town joined on a respondeat superior theory. In the second, he sued police officers of town B for negligently allowing a criminal defendant to hang himself in the town lock-up, with town B joined on the same employment theory. The inquirer suggested a conflict because, as county commissioner, the lawyer "represents" towns A and B, and also questioned inquiries the lawyer reportedly made to town B officials, allegedly aided by county personnel, to gather information for his case.

The Commission found no conflict of interest on the facts submitted. Maine Bar Rule 3.4(b) bars a lawyer from accepting employment if the exercise of his independent professional judgment on a client's behalf will likely be adversely affected, or if it would likely involve him in representing differing interests. The Commission pointed to Opinion #29 (Feb. 4, 1982), which also involved an attorney who was a county commissioner; there it had analogized the duty owed to the county to the duty owed to a client, yet still found no conflict where the commissioner represented criminal defendants prosecuted by the district attorney, because his duty to the county was not adverse to that relationship.

Applying the same reasoning, the Commission concluded that the individual towns within a county commissioner's district are not clients of the lawyer/commissioner, and he has no special duty to them by virtue of his county office. Nothing in his obligation to the county or its constituents created an adverse interest in these suits; otherwise, the Commission observed, such a lawyer could never sue anyone living within the county he represents. As to the disputed claim that county employees had helped investigate jail conditions for the lawsuit, the Commission said it could not make a determination because the facts were disputed, and that even if improprieties had occurred, they would seem to concern the use of public funds for a private purpose rather than any matter within Rule 3.4(b).

Currency note

This opinion was issued in 1983, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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: Is a county-commissioner lawyer barred from suing towns in his county?

A: The opinion concluded no. The towns are not the commissioner's clients, and his county office gives him no special duty to them, so suing them for a private client did not create a conflict under Rule 3.4(b).

Q: Why did the towns not count as the lawyer's clients?

A: The opinion explained that a county commissioner's relationship runs to the county, not to the individual towns within it; he owes the towns no special duty by virtue of the office. The Commission noted that the contrary view would bar him from ever suing anyone living in his county.

Q: Did the Commission address the claim that county employees helped investigate the case?

A: The opinion declined to resolve it because the facts were disputed, adding that any impropriety would seem to involve the use of public funds for a private purpose rather than a matter governed by Rule 3.4(b).

Background and rules framework

The opinion interprets Maine Bar Rule 3.4(b), which prohibits accepting employment where the lawyer's independent professional judgment for a client will likely be adversely affected or where it would likely involve representing differing interests. That provision corresponds to Model Rule 1.7 (conflicts of interest). The analysis turns on whether the lawyer's public office (county commissioner) created a client-like duty to the towns being sued; the Commission, following Opinion #29 (Feb. 4, 1982), concluded it did not.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest)
• Maine Bar Rule 3.4(b)

Other opinions cited:

• Maine Professional Ethics Commission Opinion #29 (Feb. 4, 1982): county commissioner representing criminal defendants prosecuted by the district attorney

See also

• Maine Ethics Op. 39: A Part-Time Assistant D.A.'s Firm and Criminal Defense
• Maine Ethics Op. 52: City Attorney as Partner of a Planning Board Member
• Maine Ethics Op. 73: Partner of a City Councilor Litigating With the City
• Maine Ethics Op. 109: Duties of a Lawyer-Mayor and His Partners

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89668

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: June 2, 1983

Facts

A question has been raised as to whether a lawyer, who is also a County Commissioner, has a conflict of interest in two cases in which he is representing persons asserting claims against municipalities located in the county which he serves. In one case, the attorney/County Commissioner represents the estate of a passenger who was killed in a car crash resulting from a high speed chase. The complaint alleges that individual police officers of town A were negligent in initiating a high speed chase. Town A is joined as a defendant on a theory of respondeat superior.

In the second case, certain police officers in town B have been sued by the same attorney for negligently allowing a criminal defendant to commit suicide by hanging himself while confined in the town lock-up. Town B is joined as a defendant because of the employment relationship.

It is suggested by the inquirer that the attorney has a conflict of interest because he represents towns A and B in his capacity as County Commissioner. Questions are also raised about the propriety of inquiries made to officials of town B about their lock-up agents of the county in which the attorney serves as Commissioner which were allegedly made to assist him in obtaining information relevant to the investigation of his case.

Opinion

We do not find a conflict of interest on the basis of the facts submitted. Bar Rule 3.4(b) states that a lawyer:

. . . shall not accept employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of such employment, or if it would be likely to involve him in representing differing interests . . .

In Opinion #29 (Feb. 4, 1982) which involved an attorney who was also a County Commissioner, we analogized the duty owed to the county to the duty owed to a client. We nevertheless determined that no conflict of interest would exist even though the attorney/County Commissioner in that case represented criminal defendants being prosecuted by the District Attorney since his duty to the county was not adverse to his relationship with the District Attorney.

Clearly the individual towns within a County Commissioner's district are not clients of a lawyer/County Commissioner nor does he have any special duty to them as a result of his county office. Neither do we see anything in his official obligation to the county itself or to his constituents which would create an adverse interest in a case such as is presented here. Were it otherwise, the attorney in question would never be able to sue anyone living within the county which he represents.

We are unable to make any determination regarding the alleged incidents in which county employees are said to have been used to assist the attorney in question in investigating jail conditions in connection with his lawsuit against town A. The facts are disputed. Moreover, even if any improprieties were involved, they would seem to concern the use of public funds for a private purpose and not any matters within the purview of the Rule 3.4(b).