Can one lawyer serve as attorney for both a town and a village located within that town?

Plain-English summary

The committee was asked whether a lawyer may at the same time serve as town attorney and as attorney for a village located within the town. It answered that there is no inherent conflict between the two positions, so the dual role is not per se improper.

The committee qualified that conclusion through EC 5-15, which directs a lawyer asked to represent multiple clients with potentially differing interests to weigh carefully whether his judgment may be impaired or his loyalty divided, and to resolve all doubts against the representation. EC 5-15 cautions that a lawyer should never represent multiple clients with differing interests in litigation, and would rarely be justified in representing multiple clients with potentially differing interests in litigation, while allowing such joint service in non-litigation matters where the interests vary only slightly.

Applying those principles, the committee said a substantial likelihood of litigation between the two municipalities should preclude accepting the dual role, and that even if litigation is unlikely, the possibility of negotiations between the two that could benefit one at the other's expense should likewise lead the lawyer to decline. It added that the ability to withdraw from one or both representations on specific matters is of little consequence: if a substantial likelihood of being required to withdraw exists, the lawyer should avoid the problem by accepting only one of the two positions. Where the interests of the two municipalities will vary only slightly, the lawyer may properly represent both.

Currency note

This opinion was issued in 1977, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (concurrent conflicts are now governed by Rule 1.7). 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 Treat this page as historical context, not current guidance.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 one lawyer represent both a town and a village within it?

A: Under this opinion, yes, in principle. The committee held there is no inherent conflict, so the dual role is not per se improper.

Q: When must the lawyer decline?

A: Where a substantial likelihood of litigation between the municipalities exists, or where negotiations between them could foreseeably benefit one at the other's expense. The committee said all doubts should be resolved against the representation.

Q: Does the ability to withdraw later solve the problem?

A: The committee said no. If a substantial likelihood of being forced to withdraw exists, the lawyer should avoid it by accepting only one of the two positions.

Background and rules framework

The opinion applies EC 5-15, the Code's guidance on representing multiple clients with potentially differing interests and resolving doubts against the representation. The current Model Rule analogue is Rule 1.7 (conflict of interest: current clients), which requires assessing material limitation and, where a concurrent conflict exists, informed consent that the lawyer reasonably believes the representation permits.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• NY EC 5-15

Other opinions cited:

• Ore. Op. 101 (1961); N.J. Op. 29; Wash. Op. 104 (1962): likelihood of conflict between jointly represented bodies
• ABA Inf. 518 (1962): joint service where interests vary only slightly

See also

• NY State Bar Op. 482: A part-time town attorney whose firm sues the town
• NY State Bar Op. 484: A zoning-board member's firm practicing before town agencies

Source

• Landing page: https://nysba.org/opinion-468/