Can an assistant town attorney serve as counsel to the town's zoning board when the town board has sued that board?

Plain-English summary

The committee was asked whether an assistant town attorney could act as counsel to the town's zoning board of appeals in an Article 78 proceeding the town board had instituted against the zoning board. It answered no.

The committee first set out the ordinary rule. Under the Town Law, the town board issues zoning ordinances and creates zoning boards of appeals to grant variances "in harmony with their general purpose and intent," and the town attorney's duties include advising the zoning board. Normally there is no conflict between the town board's ordinances and the zoning board's work granting variances, and (following ABA Inf. 1244 (1972) and N.Y. State 462 and 385) the same attorney may ordinarily represent the town in enacting an ordinance and the zoning board in administering it. So under normal circumstances an assistant town attorney could properly serve as counsel to the zoning board of appeals.

The committee held those normal circumstances did not control once the two boards became antagonistic to the point of litigation. When the town board sues the zoning board, "the theoretical harmony of their relationship must give way to the reality of their conflicting interests," and counsel fully independent of the town attorney's office should represent the zoning board. The committee pointed to DR 5-105(A) and (B), which require a lawyer to decline or not continue employment likely to be adversely affected by, or to involve representing, differing interests (see also EC 5-1, EC 5-14, EC 5-15). Because the town board employs the assistant and may remove him at will, his duty to that board, coupled with its preeminent authority, precludes the exercise of independent judgment on matters adverse to it; representing the zoning board against the town board would require him to serve two masters. The question was answered in the negative.

Currency note

This opinion was issued in 1979, 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, and representation of organizational and governmental clients by Rule 1.13). 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 Treat this page as historical context, not current guidance.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 an assistant town attorney normally advise the zoning board of appeals?

A: Under this opinion, yes. The committee held that ordinarily there is no conflict, and the town attorney's office may both work on ordinances and advise the zoning board administering them.

Q: What changed once the town board sued the zoning board?

A: The boards' interests became directly adverse. The committee held the assistant could not represent the zoning board against the town board that employs him and can remove him at will (DR 5-105(A), (B)).

Q: Who should represent the zoning board in that situation?

A: Counsel fully independent of the town attorney's office, retained for the proceeding.

Background and rules framework

The opinion applied DR 5-105(A) and (B) (declining or not continuing employment likely to involve differing interests or impaired independent judgment), together with EC 5-1, EC 5-14, and EC 5-15, against the Town Law's allocation of authority between the town board and the zoning board of appeals. The current Model Rule analogues are Rule 1.7 (concurrent conflicts of interest) and Rule 1.13 (organization, including governmental, as client).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.13 (organization as client)
• NY EC 5-1, EC 5-14, EC 5-15; DR 5-105(A) and (B)

Statutes:

• N.Y. Town Law secs. 20, 261 et seq. (town attorney; zoning boards of appeals)
• N.Y. CPLR Article 78 (proceeding against a body or officer)

Other opinions cited:

• ABA Inf. 1244 (1972): one attorney may represent the township and the zoning hearing board in the ordinary case
• N.Y. State 462 (1977): retaining independent counsel where town agencies are adverse

See also

• NY State Bar Op. 504: County attorney representing taxpayers on assessments
• NY State Bar Op. 506: A public lawyer taking the same matter privately
• NY State Bar Op. 510: Deputy town supervisor representing against the town

Source

• Landing page: https://nysba.org/opinion-501/