NYSBA 2022-07-12

Can a town attorney represent a private client on zoning matters before a neighboring town if the client also has property interests in the town the attorney serves?

Short answer: Yes if there is no personal-interest conflict, or a consentable one with informed consent from both the town board and the client; a positional conflict alone does not bar it, but Rule 1.11(f)(2) forbids using public office to influence a tribunal.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1242: A Town Attorney's Private Zoning Work in a Neighboring Town

Short answer: The opinion concludes that a town attorney may represent a private client on a zoning matter in a neighboring town only if there is no significant personal-interest conflict, or if any such conflict is consentable and both the appointing town board and the private client give informed consent; in all events Rule 1.11(f)(2) bars the attorney from using public office to influence a tribunal in the private client's favor.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

Plain-English summary

The inquirer is a town attorney who, with the town board's consent, keeps a private practice. He wants to represent a private client on a zoning and land use matter before a neighboring town, where the same client also has commercial real estate interests within the inquirer's own town.

The opinion works through Rule 1.7. On Rule 1.7(a)(1) ("differing interests," defined in Rule 1.0(f)), it explains that taking inconsistent legal positions before different tribunals is ordinarily a "positional" or "issue" conflict that does not require consent, citing Comment [24] to Rule 1.7; so advocating a land use position for the private client that differs from the inquirer's town's preferred policy is not, by itself, a conflict. On Rule 1.7(a)(2) (personal-interest conflicts), it finds a "significant risk" might exist: the attorney could "pull his punches" for the private client to avoid displeasing the board that appoints him, or soften his positions for the board to keep the private client. Drawing on N.Y. State 1216 (2021), it notes the financial pressure that an outside relationship can place on a government lawyer's judgment, but says it lacks facts to decide whether the risk is significant; the inquirer must assess it.

If a conflict exists under Rule 1.7(a)(2), the opinion turns to Rule 1.7(b): the representation may proceed if it is not prohibited by law, the lawyer reasonably believes he can competently represent each client, there is no claim by one client against the other in the same proceeding, and each affected client gives informed written consent. Citing N.Y. State 1130 (2017), it adds that a government body may waive a conflict only where the lawyer is reasonably certain the entity is authorized to consent and the process preserves public trust. The opinion closes with two caveats: the conduct may separately violate the Public Officers Law, General Municipal Law, Town Law, or the town's ethics code (questions of law it does not decide), and Rule 1.11(f)(2) prohibits a lawyer holding public office from using that position to influence a tribunal in favor of a private client.

In practice

Under this opinion, a town attorney may take the neighboring-town zoning representation if he concludes there is no significant risk to his judgment under Rule 1.7(a)(2); a mere positional conflict does not bar it. Per the opinion, if a personal-interest conflict does exist, the representation requires informed written consent from both the appointing town board (with the N.Y. State 1130 safeguards for government consent) and the private client, and Rule 1.11(f)(2) independently forbids using public office to sway a tribunal for the private client.

Common questions

Q: Is it a conflict for a town attorney to argue a zoning position for a private client that differs from his town's position?

A: Per the opinion, not by itself; that is a positional or issue conflict, which Comment [24] to Rule 1.7 says ordinarily does not require client consent.

Q: When would the town attorney have a conflict?

A: Per the opinion, under Rule 1.7(a)(2) if there is a significant risk that his personal or financial interests, such as fear of displeasing the town board, would adversely affect his professional judgment for either client.

Q: If there is such a conflict, can it be waived?

A: Per the opinion, yes, if consentable, with informed written consent from both the private client and the town board, and only where the board is authorized to consent and the process preserves public trust (N.Y. State 1130).

Q: Can the attorney use his town position to help the private client?

A: Per the opinion, no. Rule 1.11(f)(2) prohibits a lawyer holding public office from using it to influence a tribunal in favor of a private client.

Background and rules framework

The opinion interprets New York Rule 1.7(a) and (b) (concurrent conflicts and consent), the definitions of "differing interests" (Rule 1.0(f)) and "tribunal" (Rule 1.0(w)), and Rule 1.11(f)(2) (a public-office lawyer may not use the position to influence a tribunal). Rules 1.7 and 1.11 correspond to ABA Model Rules 1.7 and 1.11.

Citations and references

Rules of Professional Conduct:

New York Rules of Professional Conduct 1.0(f), 1.0(w), 1.7(a) & (b), 1.7 Cmt. [24], 1.11(f)(2), 1.11 Cmt. [3]
ABA Model Rules 1.7, 1.11 (analogues)

Statutes:

New York Public Officers Law, General Municipal Law, Town Law (referenced as possible governing law, not interpreted)

Other opinions cited:

N.Y. State 1216 (2021): financial pressure on a government lawyer's judgment under Rule 1.7(a)(2)
N.Y. State 1130 (2017) and 1238 (2022): conditions for a government body to waive a conflict; N.Y. State 1065 (2015)

Source

Landing page: https://nysba.org/ethics-opinion-1242/