Can a lawyer elected to a full-time constitutional regulatory office keep practicing law on the side, keep the firm name, or share post-election fees?

Plain-English summary

This opinion is the companion to Opinion 001028. The facts differ in that the office, while a constitutionally mandated full-time position acting in the public interest, is primarily regulatory, does not require the holder to be an attorney, and does not itself involve the practice of law; the firm did not expect to routinely oppose the office before the courts. The committee was asked whether the elected lawyer could keep practicing privately, whether the firm name could survive by the lawyer practicing in "off hours" or by a family-member attorney becoming "of counsel," and whether the lawyer could receive an agreed percentage of fees on cases resolved after accession.

The committee answered no to each. Drawing on Opinion 001028, it applied the appearance-of-impropriety standard used when representation of public bodies is involved, reasoning that a constitutionally decreed full-time office charging the holder to act for the public requires the lawyer to give up future financial benefits of private practice while in office, though not benefits earned up to departure. On the firm name, the committee read Rule 7.5(c) and its Opinion 861126 to provide that the name of a lawyer holding public office may not be used in a firm name or communications during any substantial period the lawyer is not actively and regularly practicing with the firm; an "of counsel" lawyer's name should not appear in the firm name unless that lawyer is already a named partner or shareholder who is retiring, which was not the case for the requesting attorney's family members.

A concurring committee member accepted the result on Question 1 and added that, although the public side here does not involve legal representation as such, the appearance-of-impropriety standard should still apply, because a public official's duty to the public is one of undivided loyalty analogous to a lawyer's duty to a client. The concurrence cited Montana's public-official conduct statutes (Mont. Code Ann. secs. 2-2-101 to -304) and Lovejoy v. Grubbs, while noting the proper interpretation of those statutes was not before the committee.

Currency note

This opinion was issued in 2000, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. 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 lawyer elected to full-time constitutional office keep practicing law part-time?

A: No. The opinion concluded that the lawyer may not continue the private practice of law while holding the office, applying the appearance-of-impropriety standard discussed in Opinion 001028.

Q: Can the firm keep the office holder's name by listing the lawyer or a relative as "of counsel"?

A: No. The opinion read Rule 7.5(c) to bar use of the office holder's name in the firm name while not actively practicing, and concluded an "of counsel" designation would not let a family member's name into the firm name unless that person were already a named partner or shareholder retiring.

Q: Can the office holder still collect a percentage of fees on cases resolved after taking office?

A: No. The opinion concluded the lawyer must give up future financial benefits of private practice while in office, though it does not preclude benefits earned up to the date of departure, referring to Opinion 001028.

Background and rules framework

The opinion applies Montana Rules of Professional Conduct 1.7 (Conflict of Interest: General Rule; Model Rule 1.7), 1.9 (Conflict of Interest: Former Client; Model Rule 1.9), 1.11 (Successive Government and Private Employment; Model Rule 1.11), and 7.5(c) (Firm Names and Letterheads; Model Rule 7.5), which restricts using the name of a lawyer holding public office in a firm name during a substantial period the lawyer is not actively practicing with the firm. It incorporates the analysis of Opinion 001028 and cites Opinion 861126. The concurrence referenced Mont. Code Ann. secs. 2-2-101 to -304 and Lovejoy v. Grubbs.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.7, 1.9, 1.11 (conflicts; successive government employment) / Model Rules 1.7, 1.9, 1.11
• Mont. R. Prof. Cond. 7.5(c) (name of a lawyer holding public office) / Model Rule 7.5

Statutes:

• Mont. Code Ann. secs. 2-2-101 to -304 (standards of conduct for public officials) (cited in the concurrence)

Cases:

• Lovejoy v. Grubbs, 432 So. 2d 678 (Fla. Dist. Ct. App. 1983) (public officials' duty of undivided loyalty) (cited in the concurrence)

Other opinions cited:

• Montana Ethics Opinions 001028 (companion opinion) and 861126 (letterheads, public officials)

See also

• State Bar of Montana Ethics Op. 001028: Moving From Private Practice to Public Office
• State Bar of Montana Ethics Op. 861126: Letterheads and Public Officials
• NY State Bar Op. 381: Professional Corporation Name

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/001029.pdf

Original opinion text

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

Ethics Opinion
Ethics opinions are issued by the State Bar of Montana's Ethics Committee in answer to prospective situations sent in by Montana lawyers. The opinions are advisory only.

FACTS:
Information is requested as to the effect an attorney's successful election to a constitutionally mandated public office will have on the continuation of the attorney's former firm and the extent to which the attorney candidate can continue to engage in private legal work once in public office under the Rules of Professional Conduct. The firm does not expect to routinely encounter the former firm member's political office before the courts. Both the Montana Constitution and statutes addressing the office presuppose the position is full time. Both also presuppose that the public officer will not be acting as an attorney in the public office, but will be acting in the name of the public interest. It is not mandated that the office holder be an attorney, though the office is primarily regulatory in function.

QUESTIONS PRESENTED:

1. May an attorney continue with the private practice of law consistent with the Rules of Professional Conduct if elected to a full time constitutionally mandated public office?

2. If elected, can the firm name continue either by the elected official continuing to practice with the firm in "off hours" or having a family member, who is also an attorney, become "of counsel"?

3. If elected, may such public officer receive an agreed-upon percentage of fees from pending cases earned prior to his or her accession to office which are resolved after the such official assumes the political office?

SHORT ANSWERS:
1. No. See Ethics Opinion 001028.
2. No.
3. No. See Ethics Opinion 001028.

DISCUSSION:
To a significant extent, the issues raised in this Opinion are discussed in Ethics Opinion 001028. The office in question is a constitutionally decreed full-time office charging the public officer to act in the best interest of the public. As explained in Opinion 001028, when representation of public bodies is involved, the conflict of interest standard applied is one that eschews the appearance of impropriety. The Committee applies that standard in this situation to instill public confidence in the integrity of the legal profession. Although the Committee is not authorized to determine standards of conduct appropriate to public officials, in this situation, the public official in question is a member of the bar. It is to the capacity of a member of the bar holding full time public office that this Opinion is directed.

An attorney elected to full time state-wide public office must dissolve an existing law partnership (see note 1). Upon accession to office, a lawyer is still subject to Rule 1.7 (see note 2) (concerning general conflicts of interests); Rule 1.9 (see note 3) (concerning conflicts of interests with former clients); Rule 1.11 (see note 4) (concerning successive government and private employment); and statutes and government regulations regarding conflict of interest. (The statutes and regulations may circumscribe the extent to which the Rules apply; however, we concern ourselves with the lawyer's duties under the Rules and leave interpretation of the law to others.)

As stated in Opinion 001028, positions of public trust call for especially vigilant conduct by the elected attorney. Public scrutiny of attorneys holding public positions accentuates that need. The public is alert and sensitive to the impropriety of conflicts of interest. Preservation of public confidence in the bar and public officers calls for no less. Please refer to Ethics Opinion 001028 for the complete analysis of this issue, as well as the third issue raised addressing fees. When an attorney accepts a constitutionally mandated full-time public office, he or she must give up any future financial benefits of private practice while that attorney holds office. This does not preclude the attorney from receiving benefits earned up to the date of departure from the firm into public office.

Rule of Professional Conduct 7.5(c) and enclosed Ethics Opinion 861126 provide that "[T]he name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm." The "of counsel" lawyer's name should not be included in the firm name unless the lawyer is already a named partner or named shareholder and is retiring. Given the facts as presented, this would not be the case for the requesting attorney's family members. Designation of either as "of counsel" would not provide a basis for either family member's name to be a part of the firm name.

                     THIS OPINION IS ADVISORY ONLY

One member submitted the following concurrence:

I concur in the Committee's disposition of Opinion No. 001029 and, pursuant to Rule III. A. 2 of the Operating Rules of the Ethics Committee, write separately with respect to Question No. 1 to add slightly to the Committee's analysis. For purposes of the concurrence, I accept the Committee's statement of facts.

DISCUSSION:
To a significant extent, the issues raised in Question 1 are the same as those discussed in Ethics Opinion No. 001028. The only difference is that in Opinion No. 001028, the officeholder is required to be an attorney. Accordingly, the officeholder is subject to direct application of the Rules of Professional Conduct in discharging the office's duties. In this case, while the officeholder may by happenstance be an attorney, the office and its duties do not themselves involve the practice of law and the officeholder will not necessarily be acting as an attorney while fulfilling the duties of the office. As such, the officeholder is subject to the restrictions set forth in Mont. Code Ann. § 2-2-101 through -304. The proper interpretation and application of those provisions is not before the Committee. Rather, the question before this Committee is whether, under the Rules of Professional Conduct, an attorney can still engage in the private practice of law while holding the referenced office. The Committee correctly concluded that the attorney can not.

While I have not been able to find any authority directly on point - perhaps because this question has not often been asked - virtually every authority I could find dealing with concurrent public and private legal representation requires that an "appearance of impropriety" standard be applied. Here, even though the "public" side of the equation doesn't involve legal representation per se, it is clear that the "appearance of impropriety" standard should still be applied in determining whether concurrent private legal representation is appropriate. Among other things, the duties imposed by the Constitution, statutes and at common law on a public official are analogous to those imposed on an attorney when representing a private party, i.e. the public officeholder's duty to the public is one of undivided loyalty. See e.g. Mont. Code Ann. § 2-2-103; Lovejoy v. Grubbs, 432 So. 2d 678, 681 (Fla. Ct. App., Fifth Dist.,1983)("public officials hold positions of public trust; they are under an inescapable obligation to serve the public with the highest fidelity, good faith, and integrity... Such required conduct demands undivided loyalty and compels public officers to refrain from outside activities which interfere with the proper discharge of their duties"). More importantly, however, an "appearance of impropriety" standard is appropriate in determining whether the concurrent private practice of law is permissible.