Can a city attorney help his law partner argue a client's appeal before the city council?

Plain-English summary

The opinion (rendered November 15, 1974, and amended April 6, 2013) addressed a hypothetical in which Lawyer A and Lawyer B are law partners. Lawyer A is the City Attorney. Lawyer B asked the City to grant an exception to a City Ordinance for Client X; a City Commission ruled against Client X, and Lawyer B appealed to the City Council. At the appeal, with the Commission unrepresented, Lawyer A (the City Attorney) joined Lawyer B in arguing Client X's appeal before the Council. The question was whether Lawyer A had a conflict of interest.

The opinion applied MRPC 1.7, which provides that a lawyer shall not represent a client if the representation may be materially limited by the lawyer's responsibilities to another client or third person, or by the lawyer's own interest. It also applied MRPC 1.10(a), which imputes one lawyer's conflict to others in the same firm, and MRPC 1.10(b), addressing representation against a former client in the same or a substantially related matter.

The Committee concluded that, under the scenario, a conflict of interest exists. Unless the lawyer believes the representation will not be adversely affected and both clients give knowing and informed consent, Lawyer A cannot assist Lawyer B.

In practice

Under this opinion, a lawyer who serves as City Attorney, and whose law partner represents a private client adverse to the city's position before the City Council, faces a conflict that is imputed across the firm under MRPC 1.10. The opinion holds that the City Attorney cannot step in to help argue the private client's appeal unless he reasonably believes the representation will not be adversely affected and both affected clients give knowing and informed consent.

Common questions

Q: Is there a conflict when a City Attorney helps his partner argue a client's appeal to the City Council?

A: Yes. The opinion concluded that a conflict of interest exists on those facts under MRPC 1.7 and 1.10.

Q: Can the City Attorney proceed if the clients consent?

A: Per the opinion, the City Attorney cannot assist unless he believes the representation will not be adversely affected and both clients have given knowing and informed consent.

Q: Why does the partner's conflict matter to the City Attorney?

A: The opinion applied MRPC 1.10(a), which provides that while lawyers are associated in a firm, none may knowingly represent a client when any one of them practicing alone would be prohibited from doing so.

Background and rules framework

The opinion interprets MRPC 1.7 (concurrent conflicts of interest), MRPC 1.10(a) (imputation of conflicts within a firm), and MRPC 1.10(b) (representation adverse to a firm's former client). These correspond to Model Rules 1.7 and 1.10.

Citations and references

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

• MRPC 1.7 (conflict of interest) (cf. Model Rule 1.7)
• MRPC 1.10(a), 1.10(b) (imputed disqualification) (cf. Model Rule 1.10)

See also

• Hawaii Ethics Op. 48: Public Defender Imputed Disqualification
• ABA Ethics Op. 97-405: Conflicts in Representing Government Entities

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/26/
• Original PDF: https://www.msbar.org/media/1071/et_op_26-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 26

OF THE MISSISSIPPI BAR

RENDERED November 15, 1974

AMENDED April 06, 2013

CONFLICT OF INTEREST - GOVERNMENT ATTORNEY - A lawyer should not accept proffered employment if his personal interest or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client.

The Ethics Committee of the Mississippi Bar has been requested to render an opinion on the facts presented under the following hypothetical situation:

Lawyer A and Lawyer B practice law as partners. Lawyer A is the City Attorney. Lawyer B has asked the City to grant an exception to a City Ordinance for Client X. The City Council has referred the matter to a City Commission and this Commission has ruled adversely to Client X.

Lawyer B appeals the Commission's decision to the City Council. At the time the appeal is being heard, the City Commission having made the ruling is not represented. Lawyer B appears before the City Council to argue the appeal and Lawyer A is present. Lawyer A joins Lawyer B in arguing Client X's appeal before the City Council.

Under the facts as set out above, is there a conflict of interest for Lawyer A since he is the City Attorney and partner to Lawyer B and aids Lawyer B in his arguments before the City Council?

Rule 1.7 of the Mississippi Rules of Professional Conduct (MRPC) states in pertinent part that '[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."

Rule 1.10(a), MRPC, states that "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of the practicing alone would be prohibited from doing so by Rules 1.7, 1.8(c), 1.9 or 2.4." Rule 1.10(b), MRPC, states in pertinent part that lawyer in a firm "may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm . . . had previously represented a client whose interests are materially adverse to that person."

The Committee is of that opinion that under the scenario described a conflict of interest exists. Unless the lawyer believes the representation will not be adversely affected and both clients have given knowing and informed consent, Lawyer A cannot assist Lawyer B.