Is there a conflict when one firm has partners volunteering on a city's planning and appeals boards while another partner serves as the city solicitor?

Plain-English summary

In City X, law firm A, B & C had attorney A volunteering on the Planning Board, attorney B volunteering on the Zoning Board of Appeals, and attorney C retained as City Solicitor. No firm attorney represented private clients before either board, and attorney C never appeared before either board for the city, though he represented the city in court on appeals from board decisions and gave the boards legal opinions on request. The Commission was asked whether this gave rise to a conflict of interest.

The Commission found nothing inherent in attorney C's representation of the city that would affect his independent professional judgment under Maine Bar Rule 3.5(b). The mere fact that his partners served the city in volunteer capacities would not be expected to influence the advice C gives the City Council or its boards. The Commission acknowledged a hypothetical: if a partner on a board took a position so strongly felt and so thoroughly communicated to C that C's legal advice to that board became, or was likely to become, influenced by a desire to please his partner, then C would have to decline to advise that board on the issue. But the Commission did not think such an influence likely in the normal course.

The Commission also saw no likely violation of Rule 3.2(d), which governs lawyers holding public office (barring use of public position for special advantage, to influence a tribunal for the lawyer or a client, or accepting things of value meant to influence official action). While attorneys A and B were public officials under that rule, the firm's representation of no clients before the boards removed any temptation to misuse their public position, distinguishing the thornier issues discussed in Opinion No. 45.

Currency note

This opinion was issued in 1984, 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 Treat this page as historical context, not current guidance.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: Does a city solicitor have a conflict because his partners sit on city boards?

A: The opinion concluded not inherently. Where the firm represents no private clients before the boards, the partners' volunteer service would not be expected to affect the solicitor's independent professional judgment under Rule 3.5(b).

Q: When could a conflict actually arise in this arrangement?

A: The opinion concluded a conflict could arise if a partner's board position so strongly influenced, or was likely to influence, the solicitor's legal advice to that board that his judgment was compromised; then he would have to decline to advise on that issue.

Q: Does the public-official rule bar the partners from serving on the boards?

A: The opinion concluded it does not on these facts. Because the firm represents no clients before the boards, there is no temptation for the lawyer-officials to misuse their position under Rule 3.2(d).

Background and rules framework

The opinion interprets former Maine Bar Rule 3.5(b) (a lawyer shall not accept employment if his independent professional judgment will likely be adversely affected or would involve representing differing interests) and Rule 3.2(d) (lawyers holding public office). These correspond to ABA Model Rule 1.7 (conflicts of interest) and Model Rule 1.11 (government officers and employees). The opinion contrasts the facts with Maine Opinion No. 45.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts of interest); Model Rule 1.11 (government officers and employees)
• Maine Bar Rules 3.5(b), 3.2(d)

Other opinions cited:

• Maine Professional Ethics Opinion No. 45 (conflicts where a firm accepts claims involving a municipal officer)

See also

• Maine Ethics Op. 73: Lawyer-Councilor Conflicts
• Maine Ethics Op. 109: Lawyer-Mayor's Firm Before City

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=90986

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: December 5, 1984

Facts

City X has a Planning Board, a Zoning Board of Appeals and a City Solicitor. Law firm A, B & C has attorney A serving as a volunteer on the Planning Board, attorney B serving as a volunteer on the Zoning Board of Appeals, and attorney C retained as City Solicitor. None of the attorneys in the firm represent private clients before either Board, nor does attorney C ever appear before either Board representing the interests of the City. Attorney C does, however, represent the City in Court when an appeal is taken from a decision of one of the Boards. And, attorney C as City Solicitor has given legal opinions to the Boards upon request.

The Commission has been asked whether this situation gives rise to any conflict of interest.

Opinion

Maine Bar Rule 3.5(b) provides as follows:

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, except to the extent such employment is permitted by subdivision (d) of this rule.

We see nothing inherent in attorney C's representation of the City in this situation that would affect his independent professional judgment. The mere fact of having partners serving the City in their volunteer capacities would not be expected to influence the advice that attorney C gives either directly to the City Council or to its appointive Boards.

It is, of course, possible to hypothesize particular situations in which a conflict might arise. If, for example, one of attorney C's partners on one of the City's Boards were to take a position on his Board that was so strongly felt and so thoroughly communicated to attorney C that C's legal advice to that Board actually became influenced or was likely to be influenced by his desire to please his partner, then obviously C's duty would be to decline to advise the City's Board on that issue. However, this hypothetical situation has not, as far as we know, actually arisen and we do not think it likely that such an influence on attorney C's independent judgment would likely occur in the normal course.

Nor do we see in this case any likely violation of Rule 3.2(d) pertaining to the acts of lawyers as public officials. That Rule states:

A lawyer who holds public office shall not:

(1) Use his public position to obtain, or attempt to obtain a special advantage in legislative matters for himself or for a client under circumstances where he knows, or it is obvious, that such action is not in the public interest;

(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client;

(3) Accept any thing of value from any person when the lawyer knows, or it is obvious, that the offer is for the purpose of influencing his action as a public official.

While clearly attorney A and attorney B are public officials within the meaning of this Rule, the fact that the law firm represents no clients before the Planning Board or Zoning Board of Appeals removes any temptation for those attorneys to misuse their public position, and distinguishes this situation from the thorny issues which were thoroughly discussed in Opinion No. 45.