Can one law firm represent both a county Board of Supervisors and a municipality located within that county, or represent the boards of two different counties?

Plain-English summary

A firm represented both a city council and the Board of Supervisors for the county in which the city sits. It asked whether representing both the city and the county board was unethical, whether representing the boards of two different counties was unethical, and, if no per se conflict existed, what to do if an actual conflict arose and whether the whole firm would be disqualified.

The opinion analyzed the questions under Rule 1.7, which bars representing a client where the representation is directly adverse to another client, or may be materially limited by responsibilities to another client, unless the lawyer reasonably believes the representation will not be adversely affected and each client gives knowing and informed consent after consultation. The Committee surveyed outside authority finding such dual public representations generally permissible, including ABA Informal Opinion 518 (1982) on representing two municipalities, Kentucky Opinion E-152 (1986) on a county zoning commission and a city, and New York State Bar Opinion 468 (1977) on serving as both town and village attorney, the last cautioning against the role where there is a substantial likelihood of litigation or adverse negotiations between the two entities.

The Committee concluded that representing a county board and a municipality within the county, or two county boards, is not a per se conflict. If an actual conflict arises, the firm should have each affected client obtain separate counsel for that matter, and under Rule 1.10 the entire firm would be disqualified from participating in any action over which the conflict arose.

In practice

Under this opinion, a Mississippi firm may serve multiple local-government clients (a county board and a city within it, or two county boards) without a per se conflict, the Rule 1.7 analysis turning on whether the representations are directly adverse or materially limited and whether informed consent is obtained. The opinion holds that when an actual conflict materializes, the affected clients must obtain separate counsel for that matter and Rule 1.10 imputes disqualification to the entire firm for that action.

Common questions

Q: Can one firm be lawyer for both a city and the county it sits in?

A: Per this opinion, yes; there is no per se conflict for a firm to represent both a county Board of Supervisors and a municipality within that county.

Q: Can a firm represent two different counties' boards?

A: Yes. The opinion concludes representing the Boards of Supervisors for two different counties is not a per se conflict.

Q: What happens if an actual conflict arises between the two government clients?

A: The opinion directs the firm to have each client obtain separate counsel for that matter, and states that under Rule 1.10 the entire firm is disqualified from participating in any action over which the conflict arises.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.7 (concurrent conflicts of interest, the analog of Model Rule 1.7), including its direct-adversity and material-limitation tests and the informed-consent requirement, together with Rule 1.10 (imputed disqualification, Model Rule 1.10). It treats out-of-state and ABA opinions as persuasive guidance that representation of related governmental entities is not inherently adverse.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Mississippi Rule 1.7: concurrent conflicts of interest (direct adversity, material limitation, informed consent).
• Model Rule 1.10 / Mississippi Rule 1.10: imputed disqualification of the firm.

Other opinions cited:

• ABA Informal Opinion 518 (November 27, 1982): representing two municipalities on intergovernmental contracts is permissible with consent after full disclosure.
• Kentucky State Bar Opinion E-152 (1986): a county zoning commission and a city are not inherently adverse.
• New York State Bar Opinion 468 (May 18, 1977): serving as both town and village attorney is not per se improper, absent a substantial likelihood of litigation or adverse negotiations.

See also

• MS Bar Ethics Op. 142: Special Prosecutor Conflict
• MS Bar Ethics Op. 148: Legal Services Program Conflicts
• MS Bar Ethics Op. 169: Lawyer on Civil Service Board

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/126/
• Original PDF: https://www.msbar.org/media/1032/et_op_126-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 126

OF THE MISSISSIPPI BAR

RENDERED December 05, 1986

AMENDED April 06, 2013

CONFLICT OF INTEREST- GOVERNMENT ATTORNEY - There is no conflict of interest per se for a law firm to represent both a county Board of Supervisors and a Municipality within said county; nor is there a conflict of interest per se for a law firm to represent the Board of Supervisors for two different counties.

The Ethics Committee of the Mississippi Bar has been asked to render an opinion on the following inquiry:

Law Firm A represents the City Council for Reykajavick and also represents the Board of Supervisors for Red County, the County in which Reykajavick is located.

Is it unethical for Firm A to represent both the City and the County Board of Supervisors?

Is it unethical for Firm A to represent the Board of Supervisors for two different counties?

If the Ethics Committee is of the opinion that no conflict exists per se, what action should the firm take should an actual conflict arise and is the entire firm disqualified from participation in the action involving the conflict?

Rule 1.7 of the Mississippi Rules of Professional Conduct (MRPC), provides that

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless the lawyer reasonably believes:

(1) the representation will not adversely affect the relationship with the other client; and

(2) each client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the adverse representation and the advantages and risks involved.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless the lawyer reasonably believes:

(1) the representation will not be adversely affected; and

(2) the client has given knowing and informed consent after consultation. The consultation shall include explanation of the implications of the representation and the advantages and risks involved.

Informal opinion 518 rendered November 27, 1982, by the Committee on Ethics and Professional Responsibility of the American Bar Association found that it would not be unethical for an Attorney to represent two municipalities with regard to drafting and execution of contracts and agreements between both municipalities for sewer connections and installations, provided consent was given by municipalities after a full disclosure of all facts indicative of a conflict of interest. However, that opinion also noted that an attorney must always consider whether his proposed conduct will uphold the honor and maintain the dignity of the profession and that instances may arise where because of local politics or other factors it would not be proper for the attorney to represent both governmental entities. Nevertheless, under the facts stated, the ABA Committee found no conflict.

Ethics Committees of several other states also provided guidance in this area. Opinion E-152 of the Kentucky State Bar, rendered in 1986, found that the interests of a County Zoning Commission and a City in that county are not inherently adverse. Therefore, a city attorney's partner may serve as counsel for the County Zoning Commission. The New York State Bar Opinion 468 of May 18, 1977, found that it is not per se improper for a lawyer to be both town attorney and attorney for a village located within the town. A lawyer, however, should not take on such a dual role if there is a substantial likelihood of litigation between the two municipalities or if there is a possibility of negotiations between the two, the outcome of which could conceivably serve to benefit one at the other's expense. It appears that the interests of the municipalities will vary only slightly; the lawyer may represent both.

We therefore, conclude that it is not per se a conflict of interest and unethical and improper for a law firm to represent a county Board of Supervisors and a Municipality located within that county; nor is it improper for a firm to represent the Board of Supervisors for two different counties. Should any actual conflict arise, the law firm should request each of the clients to obtain separate counsel to represent their interests in the matter a conflict exists. Under Rule 1.10, MRPC, the Committee is of the opinion that the entire firm would be disqualified from participation in any action over which a conflict would arise.