If a lawyer sits on a city council, county board, or legislature, what must the lawyer and the lawyer's partners do when the firm appears before that body?

Plain-English summary

The opinion addressed the lawyer who serves on a county or municipal governing board, or a state or federal legislative body or committee, and how that public role constrains the lawyer and the lawyer's firm. The opinion stated that the lawyer-member may not hear or consider any matter before that body in which the member or his firm has a direct or indirect interest.

When the member's partner or associate is to appear before the body, the opinion required the member to: disclose his relationship to the matter in writing or in open meeting; refrain from any expression of opinion, formal or informal, including any contact with other members or staff about the matter; absent himself from all meetings during discussion or hearing of the matter; and withdraw from all voting on it. A lawyer may not appear before a body on which his partner, associate, or employee serves unless that member has fully complied with those four requirements. The opinion further stated that it is unethical for the partner, associate, or employer of a board member to represent that governing body. As to relatives, the opinion concluded it is not in itself unethical for a lawyer whose spouse or relative sits on a body to appear before or represent that body, but the lawyer may not use the relationship to gain or retain employment or favorable decisions, and must stay alert to conflicts, especially where the spouse is a member.

Currency note

The North Carolina State Bar has flagged this opinion as overruled in part: RPC 130 holds that a law firm may accept employment on behalf of a governing board upon which its partner sits if doing so is otherwise lawful, displacing CPR 290's flat bar on firm representation of the board.

This opinion was issued in 1981 under North Carolina's former Code of Professional Responsibility (the DR/EC framework), before the State Bar replaced the Code with the Rules of Professional Conduct (adopted 1985) and before the 2003 revisions to those Rules. The principles it applied correspond to today's Model Rule 1.7 (conflicts of interest) and Model Rule 1.11 (government lawyers and former government service). Treat this page as historical context, not current guidance. Verify against current rules and RPC 130 before relying on any specific requirement mentioned here.

Common questions

Q: What must a lawyer-board-member do when his firm appears before the board?

A: The opinion required the member to disclose the relationship, refrain from any expression of opinion or contact about the matter, leave all meetings while it is discussed, and withdraw from voting on it.

Q: Could the board member's firm represent the board itself under CPR 290?

A: No, as CPR 290 stood. The opinion said it was unethical for the member's partner, associate, or employer to represent that governing body. RPC 130 later overruled that bar in part, allowing firm representation if otherwise lawful.

Q: Does a lawyer whose spouse sits on the board face the same flat bar?

A: No. The opinion concluded it is not in itself unethical to appear before or represent a body on which a spouse or relative sits, but the lawyer may not exploit the relationship and must watch for conflicts, particularly with a spouse.

Background and rules framework

The opinion applied the conflict-of-interest principles of the former Code of Professional Responsibility, which correspond to today's Model Rule 1.7, together with the special concerns of lawyers in public office now addressed by Model Rule 1.11. The analysis turned on separating the member's personal recusal duties from the firm's ability to take work touching the body, a separation RPC 130 later recalibrated.

Citations and references

Rules of Professional Conduct:

• North Carolina Code of Professional Responsibility (conflicting interests; public office)
• MR 1.7 (conflicts of interest)
• MR 1.11 (special conflicts for government officers and employees)

Other opinions cited:

• North Carolina RPC 130 (overrules CPR 290 in part on firm representation of the board)

See also

• NC Ethics Op. CPR 252: disqualification of a public-official lawyer's partners

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/cpr-290/

Original opinion text

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

Editor's Note: This opinion is overruled in part by RPC 130. RPC 130 rules that a law firm may accept employment on behalf of a governing board upon which its partner sits if such is otherwise lawful.

Note: Upon request of the Charlotte-Mecklenburg Bar, and attorneys across the state, CPR 290 was referred back to a special sub-committee chaired by J. Guy Revelle, Jr. for further study. The following revision of Proposed CPR 290, which was originally published in Volume 6, Number 1 of The North Carolina Bar Newsletter, is now published for comment before adoptions at the January Council Meeting.

An attorney who serves as a member of a county or municipal governing board, or State or Federal legislative body, or any entity thereunder, or committee thereof, shall not hear or consider any matter coming before that governing body or entity in which that member or his firm has any direct or indirect interest.

Pursuant to such prohibition, it shall be unethical for that member to attempt to influence in any way, publicly or privately, the actions or decisions of the governing body or entity or its staff with respect to any matter on which his partner or associate is appearing; and in any situations in which that member's partner or associate is to appear before the governing body or entity on which he serves, that member shall: (1) disclose in writing or in open meeting to that governing body or entity his relationship to the matter involved, (2) refrain from any expression of opinion, public or private, on, or any formal or informal consideration of, the matter involved, including any communication or other form of contact with other members or staff of the governing body or entity concerning that matter, (3) absent himself from all meetings of the governing body or entity during any discussion or hearing of the matter, (4) withdraw from all voting on the matter, with or without the consent of the governing body or entity.

An attorney may not ethically appear before a governing body or entity having as a member his partner, associate or employee unless said partner, associate or employee has fully complied with the four requirements specified above.

If an attorney or his employee serves as a member of a county or municipal governing board, or State or Federal legislative body or any entity thereunder, or committee thereof, it shall be unethical for his partner, associate or employer to represent such governing body or entity.

It is not unethical as such for an attorney whose spouse or relative is on any county or municipal governing board, or State or Federal legislative body, or any entity thereunder, or committee thereof, to appear before or represent that governing body or entity. However, it is unethical for an attorney to use his relationship to a member of any governing board to gain (or retain) employment or obtain favorable decisions. An attorney whose spouse or relative is a member of such a governing body or entity must always be sensitive to particular circumstances creating a conflict of interest or impropriety in his representation of or appearance before that governing body or entity. This is especially true if the attorney's spouse is a member thereof because of the very nature of the spousal relationship. The same principles should guide an attorney in deciding whether he may appear before or represent an entity whose decisions are appealable to a governing body of which his spouse or relative is a member.