Can a county board attorney sign a legal opinion, prepared by the equipment seller, vouching for a lease-purchase the board is entering?

Plain-English summary

The Committee addressed a county Board of Supervisors that advertised to purchase or lease-purchase road equipment. The successful bidder presented the board a Lease-Purchase Agreement together with a pre-written legal opinion for the board attorney to sign, vouching for the validity of the entire transaction between the board (as lessee) and the bidder and its lender (as lessor). The board wanted its attorney either to execute the bidder's opinion or to draft his own, and asked whether that was proper.

The opinion framed the question as one of who the client is and to whom loyalty is owed. It reasoned that conflicts of interest, or representing both sides of a transaction, presuppose an attorney-client relationship with two separate clients, and that nothing in the request indicated the attorney represented anyone other than the board. On those facts, the opinion concluded the attorney could express an opinion on the transaction's validity for the board, either by reviewing the non-client bidder's pre-written opinion or by drafting his own as he saw fit.

The opinion then addressed the alternative: if the attorney also represented the successful bidder, he would have to follow Rule 1.7(b), which bars representation that may be materially limited by responsibilities to another client, a third person, or the lawyer's own interests, unless the lawyer reasonably believes the representation will not be adversely affected and the client gives knowing and informed consent after consultation. Quoting the comments to Rule 1.7, the opinion noted that assessing conflicts turns on factors such as the duration and intimacy of the relationships, the functions performed, the likelihood of actual conflict, and the likely prejudice, calling it often a question of proximity and degree. It concluded the attorney may opine for the board if the bidder is not his client, and otherwise must apply Rule 1.7(b) and decide accordingly.

Currency note

This opinion was issued in 1989, before the adoption of the current Mississippi Rules of Professional Conduct effective June 22, 1994 (amended February 5, 1999), though it quoted a Rule 1.7(b) numbered as in the current rules. Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, and 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 a government board's attorney sign a legal opinion drafted by the other side of the deal?

A: The opinion concluded the board attorney may give an opinion on the transaction's validity for the board, by reviewing the bidder's draft or writing his own, as long as the bidder is not also his client.

Q: When does signing such an opinion create a conflict?

A: Per the opinion, a conflict question arises only if the attorney also represents the successful bidder; in that case he must apply Rule 1.7(b), which requires a reasonable belief the representation will not be adversely affected and the clients' informed consent.

Q: Whose client is the board attorney in this scenario?

A: The opinion found nothing indicating the attorney represented anyone but the board, so it analyzed the question as advice given to a single client rather than dual representation.

Background and rules framework

The opinion interprets Mississippi Rule of Professional Conduct 1.7, including 1.7(b) (cf. Model Rule 1.7), on conflicts of interest and material limitation of a representation. It quoted Rule 1.7(b) and its comments on loyalty, the factors bearing on potential adverse effect, and informed consent, and applied them to a board attorney asked to vouch for a transaction structured by a non-client bidder.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.7, including 1.7(b) (conflict of interest; material limitation; informed consent) (cf. Model Rule 1.7).

See also

• MS Bar Ethics Op. 169: Firm Associate Serving on a City Civil Service Commission
• MS Bar Ethics Op. 188: City Attorney Suing a Municipality in the Same Liability Pool

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/165/
• Original PDF: https://www.msbar.org/media/1440/35a_et_op_165.pdf

Original opinion text

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

ETHICS OPINION NO. 165

OF THE MISSISSIPPI BAR

RENDERED June 23, 1989

CONFLICT OF INTEREST - MULTIPLE REPRESENTATION - An Attorney for a County Board of Supervisors does not violate the Mississippi Rules of Professional Conduct by executing a pre-written legal opinion prepared by the successful bidder of road equipment giving an opinion as to the validity of this transaction, as long as the provisions of Rule 1.7 M. R. P. C. are followed.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the following facts, submitted by a member of the Mississippi State Bar:

A County Board of Supervisors have advertised for the purchase or lease-purchase of road equipment, and in connection therewith, a successful bidder then presents for execution by the Board a Lease-Purchase Agreement, together with a pre- written Legal Opinion for the Board Attorney to sign concerning the validity of the entire transaction between the Board of Supervisors as the Lessee and the successful bidder and its lender as the Lessor. The desire of the Board of Supervisors is that the Attorney execute the legal opinion or, in the alternative, draft one himself. The request has been made as to the propriety of the Attorney's actions.

Once again, this Committee has been requested to dive into the murky waters of just who is the client and to whom is the Attorney's loyalty owed. Conflicts of interest between clients and the representation of both sides to a transaction presuppose that an Attorney-Client relationship exists between the Attorney and two separate clients. Nothing in the request for this opinion would indicate that the Attorney represents anyone other than the Board of Supervisors. Accordingly, if the Attorney were requested by the Board to express his opinion as to the validity of this transaction, the Attorney could do so by either reviewing the pre-written Legal Opinion prepared by the non-client successful bidder or by drafting such opinion as the Attorney would feel appropriate.

On the other hand, if the Attorney in question also represented the successful bidder in addition to the Board of Supervisors, such Attorney would have to follow the provisions of Rule 1.7(b) of the Mississippi Rules of Professional Conduct, which reads as follows:

(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:

(l) 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 representation and the of the advantages and risks involved.

The comments to Rule 1.7 give the following guidance: Loyalty to a client-prohibits an Attorney undertaking representation directly adverse to the client without the client's consent. Possible conflicts do not preclude representation without the likelihood of interference with the lawyer's independent professional judgment in considering alternatives or foreclosing courses of action that reasonably would be pursued for the client. Additionally, consideration should be given to whether the client wishes to accommodate the other interests. The comments further state that conflicts of interest are often difficult to assess:

Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the lawyer's relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict of it does arise. The question is often one of proximity and degree.

Therefore, it is the opinion of this Committee that the Board of Supervisors Attorney may give a legal opinion for his client, the Board of Supervisors, as to the validity of purchase or lease transactions of road equipment if requested by the Board and the successful bidder is not a client of the Board Attorney. If the successful bidder is also a client of the Board Attorney, then the Attorney should follow the provisions of Rule 1.7(b) and make a determination accordingly.