Is it a conflict for a city attorney to sue a different municipality when both cities belong to the same self-funded liability pool?

Plain-English summary

The Committee addressed an attorney who represented a city that was a member of the Mississippi Municipal Liability Plan, a nonprofit corporation funded by member municipalities to pay covered claims. The question was whether it is a conflict for the attorney to sue another city when a successful suit might cause his own city to pay a higher contribution to the plan.

The opinion applied Rule 1.7, which bars representing a client when the representation will be directly adverse to another client, or may be materially limited by the lawyer's responsibilities to another client or third person or by the lawyer's own interest unless the lawyer reasonably believes the representation will not be adversely affected and the client gives informed consent. The opinion explained that Rule 1.7 does not restrict representation that only indirectly might adversely affect a client; if it did, attorneys could never argue different sides in different cases, and the rule is not that restrictive.

The opinion assumed, from the facts, that the attorney did not represent the municipality he was suing, had no privileged information about it, and had no improper advantage against it. It reasoned that the only suggested objection, a possible higher pool contribution if the attorney won, existed whether or not the attorney was disqualified. Because the attorney had never represented the defendant municipality and had no unfair advantage, the opinion concluded he should not be disqualified, and that there is no conflict of interest in a municipal attorney suing a municipality he does not represent even though both belong to the same liability plan.

Currency note

This opinion was issued in 1991, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but 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 Treat this page as historical context, not current guidance.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 city attorney sue another city that shares the same liability pool?

A: The opinion concluded yes; there is no conflict where the attorney does not represent the city being sued, has no privileged information about it, and has no improper advantage against it.

Q: Does the risk of a higher pool contribution create a conflict?

A: Per the opinion, no. That possibility exists regardless of whether the attorney is disqualified, and Rule 1.7 does not reach a representation that only indirectly might adversely affect a client.

Q: Why doesn't an indirect financial effect on the lawyer's client count under Rule 1.7?

A: The opinion reasoned that reading the rule that broadly would bar lawyers from ever arguing different sides in different cases, and the rule is not that restrictive.

Background and rules framework

The opinion interprets Mississippi Rule of Professional Conduct 1.7 (conflict of interest; current clients), which corresponds to Model Rule 1.7. The analysis turns on whether the adverse effect is direct (the lawyer representing or holding an advantage over the opposing party) or merely indirect (a shared pool's contribution levels).

Citations and references

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

• MRPC 1.7(a), (b) (conflict of interest; current clients) (cf. Model Rule 1.7)

See also

• MS Bar Ethics Op. 218: Joint Defense Conflict
• MS Bar Ethics Op. 211: Insurer Control of Defense Counsel
• MS Bar Ethics Op. 201: Discipline-Body Conflicts

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/188/
• Original PDF: https://www.msbar.org/media/1450/35a_et_op_188.pdf

Original opinion text

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

ETHICS OPINION NO. 188

OF THE MISSISSIPPI BAR

RENDERED June 07, 1991

CONFLICT OF INTEREST-- It is not a conflict of interest for a City Attorney to sue a municipality that the attorney does not represent, even though the attorney's client and the defendant municipality are members of the same liability pool which is funded by its members based on the experience of all of its members.

The Ethics Committee of the Mississippi Bar Association has been requested to render an opinion on the following facts:

An Attorney represents a city which is a member of the Mississippi Municipal Liability Plan, which is a nonprofit corporation operated by certain Mississippi municipalities. The municipalities contribute to a fund to pay covered claims of the member municipalities for which there is liability. The question asked is whether it is a conflict of interest for an attorney who represents one city to sue another city, when there is a possibility that if he is successful, it might cause his city to have to pay more to the liability plan.

Rule 1.7 of the MISSISSIPPI RULES OF PROFESSIONAL CONDUCT provides in pertinent part:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client. . .

(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 interest, 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.

Rule 1.7 of the MRPC does not restrict representation which indirectly might adversely affect a client. If it did, then it would follow that attorneys could never argue different sides in different cases, since success in one case might be detrimental to another client in another case. The Rule is not that restrictive.

Since the facts submitted do not state otherwise, it is assumed that the attorney does not represent the municipality he is suing; that the attorney has no privileged information concerning the municipality he is suing; and that the attorney has no improper advantage against the municipality he is suing. The only objection suggested is that if the attorney wins his suit, then his municipality might have to pay a higher contribution to the pool. That possibility, however, exists regardless of whether the municipal attorney is disqualified. Since the attorney has never represented the municipality he is suing and since he has no unfair advantage against the municipality, he should not be disqualified.

Under the facts represented, there is no conflict of interest in a municipal attorney suing a municipality which he does not represent even though both municipalities are members of the same liability plan.