When a lawyer's partner sits on a city council, can the lawyer sue the city for a client whose claim the council denied, if the partner is screened?

Plain-English summary

Attorney A represented a contractor with a public-bid construction contract with a city. Attorney B, a partner in A's firm, was a member of the city's governing body. When a dispute arose and A helped the contractor present a claim to the city, B disclosed his relationship and took no part in the council's consideration, in accordance with Revised CPR 290. After the council denied the claim, the contractor asked A to sue the city, and the inquiry asked whether A could continue the representation under the same CPR 290 conditions and with B screened.

The opinion concluded that the Rules would not prohibit A from representing the contractor against the city in a civil action, provided that, to avoid the appearance of impropriety, B was screened within the firm from any participation in the litigation and apportioned no part of the resulting fee, and provided B continued to have no involvement in the city's defense in his official capacity. The opinion drew a firm line: A should under no circumstances undertake the representation in litigation where B would have to be made a party defendant in either his individual or official capacity, because that would create a direct conflict of interest and Rule 5.1(a) would compel A's disqualification.

Currency note

The North Carolina State Bar's editor's note states that this opinion is overruled by RPC 160; it is retained here as historical research, not current guidance. This opinion was also issued in 1989, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provision it applies (Rule 5.1(a), conflicts of interest) has since been renumbered and revised (the corresponding Model Rule is 1.7). Treat this page as historical context only. Verify against current rules and later opinions before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could the lawyer sue the city while a partner sat on its council?

A: Yes, conditionally, under this now-overruled opinion. It concluded the lawyer could proceed if the partner was screened from the litigation and took no part of the fee.

Q: What was the absolute limit?

A: The opinion concluded the lawyer must never take a case in which the council-member partner would have to be made a party defendant, because Rule 5.1(a) would then compel disqualification.

Q: Is this opinion still good guidance?

A: No. The North Carolina State Bar's editor's note states it is overruled by RPC 160.

Background and rules framework

The opinion applied North Carolina Rule 5.1(a), the conflict-of-interest provision (corresponding to Model Rule 1.7), together with the recusal requirements of Revised CPR 290 for a lawyer-official. It permitted screening of the council-member partner as a cure, except where the partner would be a party defendant, in which case the conflict was non-waivable on these facts. The North Carolina State Bar later overruled this opinion in RPC 160.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.1(a) (conflicts of interest)
• MR 1.7 (concurrent conflicts of interest)

Other opinions cited:

• Revised CPR 290 (North Carolina): recusal steps for a lawyer serving on a governing body

See also

• NC Ethics Op. RPC 160: lawyer as member of a hospital's board of trustees
• NC Ethics Op. RPC 63: representation of school board while serving as county commissioner
• NC Ethics Op. RPC 130: employment of a board member's law firm

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-53/

Original opinion text

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

Editor's Note: This opinion is overruled by RPC 160.

Inquiry:

Under Revised CPR 290 an attorney may appear before the governing body of a municipality even though another attorney from the same firm serves as a member of that body. To avoid an unethical conflict, the member must: (1) disclose the relationship, (2) refrain from consideration or comment on the matter, (3) absent himself from meetings during any discussion of the matter, and (4) withdraw from voting on the matter.

Attorney A represents Contractor, who has a construction contract (awarded through a public bid process) with the City. Attorney B is a member of the governing body of City and a partner in Attorney A's law firm. A dispute arises between City and Contractor concerning performance of, and changes to, the contract, and compensation and damages payable under the contract. At Contractor's request, Attorney A assists Contractor in submitting a claim against the City. When the claim is presented to the governing body of the City for consideration, Attorney B discloses his relationship to Attorney A and takes no part in the consideration, discussion or voting on the matter-all in accordance with Revised CPR 290.

When the governing body of the City votes to deny Contractor's claim, Contractor asks Attorney A to institute a civil action to recover from City the amounts claimed.

Under the same conditions imposed by Revised CPR 290, and assuming appropriate "screening" of Attorney B, may Attorney A continue to represent Contractor in a civil action against City?

Opinion:

Yes. The Rules of Professional Conduct would not prohibit Attorney A from representing the contractor against the City in a civil action. In order to avoid the appearance of impropriety Attorney B should be screened within the law firm from any participation whatsoever in the litigation on behalf of the plaintiff. In addition and for the same reason, Attorney B should be apportioned no part of the fee resulting from the prosecution of the litigation. For the purpose of this opinion, it is assumed that Attorney B complied fully with the requirements of revised CPR 290 when the matter was initially being considered by the City Council and that Attorney B will continue to have no involvement in regard to the defense of the litigation in his official capacity.

Under no circumstances should Attorney A undertake the representation of the contractor in litigation where it is necessary that Attorney B be made a party defendant in either his individual or official capacity. In that situation a direct conflict of interest would be engendered and Rule 5.1(a) would compel the disqualification of Attorney A.