Can a lawyer who sits on a town zoning board represent private clients before other town agencies?

Plain-English summary

The committee was asked whether a lawyer-member of a town's Zoning Board of Appeals, or any of the lawyer's partners and associates, could practice before other agencies of the town. It answered yes, with qualifications, clarifying its earlier N.Y. State 292 (1973).

The committee first explained that 292 had not announced a per se rule. That opinion had barred the lawyer for a Zoning Board of Appeals from representing a private client before the Town Board in a zoning matter, but the concern was the relatedness of the representation to the boards' functions and the interrelatedness of the two boards, whose powers were concurrent and overlapping. A lawyer-member of the board bears no lesser burden than its counsel: under DR 8-101(A)(1) and (2) and EC 9-6, the member may not use the public office to gain a special advantage or to influence a public body. The committee therefore held the member ethically precluded from representing private clients in zoning-related matters before the Zoning Board of Appeals or other town agencies with jurisdiction over such matters, and under DR 5-105(D) that disqualification extends to the member's partners and associates.

The committee found no basis for a per se rule barring representation in matters unrelated to the public office. It pointed to EC 8-8's statement that it is highly desirable for lawyers to hold public office, reasoning that a blanket disqualification would discourage what the Code seeks to promote, and noted that other states had rejected mechanical per se rules in favor of focusing on the relatedness of the representation to the lawyer's public function. It concluded that the lawyer-member, and the firm, should be free to represent private clients before other town agencies in matters unrelated to zoning where those agencies are not functionally related to the Zoning Board of Appeals. The question was answered in the affirmative.

Currency note

This opinion was issued in 1978, 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, conflicts of government officers and employees by Rule 1.11, and imputation by Rule 1.10). 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 Treat this page as historical context, not current guidance.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 on a town zoning board take private clients before other town agencies?

A: Under this opinion, yes, in matters unrelated to zoning and before agencies not functionally related to the Zoning Board of Appeals. The committee rejected a per se bar.

Q: What is the lawyer-member barred from doing?

A: Representing private clients in zoning-related matters before the Zoning Board of Appeals or other town agencies with jurisdiction over such matters, because that risks using the public office for special advantage (DR 8-101(A)).

Q: Does the disqualification reach the lawyer's firm?

A: Yes. Where the lawyer-member is disqualified, the committee applied DR 5-105(D) so that partners and associates are similarly disqualified.

Background and rules framework

The opinion applies DR 8-101(A)(1) and (2) (a lawyer holding public office not using it for advantage), EC 9-6 and EC 8-8 (avoiding the appearance of impropriety; the value of lawyers in public office), and the imputation rule DR 5-105(D), clarifying N.Y. State 292. The current Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.11 (government officers and employees), and Rule 1.10 (imputation).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.11 (special conflicts for former and current government officers and employees)
• MR 1.10 (imputation of conflicts of interest)
• NY EC 8-8, EC 9-6; DR 5-105(D), DR 8-101(A)(1), (2)

Other opinions cited:

• N.Y. State 292 (1973): counsel to a zoning board representing a private client before the town board; clarified here
• N.Y. County 506 (1963), Ariz. Op. 730, N.J. Op. 267 (1973): rejecting mechanical per se disqualification

See also

• NY State Bar Op. 482: Joining as town attorney while the firm sues the town
• NY State Bar Op. 501: Assistant town attorney defending the zoning board
• NY State Bar Op. 492: A part-time DA prosecuting a former private client

Source

• Landing page: https://nysba.org/opinion-484/