Can an outside lawyer retained as a town's special counsel also represent private clients before the town's planning board or zoning board of appeals?

Plain-English summary

The committee distinguished a town's special counsel, an outside attorney retained as an independent contractor for a particular subject matter, proceeding, or litigation under Town Law section 20(2)(a), from a deputy or assistant town attorney, who is a permanent salaried part of the town's legal structure. The question was whether such special counsel may represent private clients before the town's planning board or zoning board of appeals.

The committee held that, absent actually differing interests, the representation is not improper. DR 5-105(A) bars representation only where independent judgment will likely be adversely affected or differing interests are involved. Looking at the boards' statutory functions, the committee was not persuaded that a private applicant's interests are necessarily adverse to the town's. A zoning board of appeals is a statutory "safety valve" empowered to vary the strict application of an ordinance, and an appeal there may be taken by town officers as well as aggrieved owners; a planning board principally approves site plans, subdivisions, and conditional uses. Where differing interests do actually exist, the representation cannot be undertaken without consent meeting the conditions of N.Y. State 629 (1992). The committee distinguished N.Y. State 603 and N.Y. State 580, which barred part-time city or town attorneys (and their functional equivalents) from appearing before agencies their office serves, and analogized special counsel instead to the special district attorney of N.Y. State 564, who may engage in private criminal practice.

The committee stressed that a critical factor was that special counsel ordinarily has limited duties and lacks the town-wide responsibilities and influence of the town attorney. A different rule applies where the nature or volume of work makes special counsel the functional equivalent of a regular staff member, or where the subject matter is of such overriding importance to the town that special counsel is perceived as having significant influence with the boards. Before undertaking the representation, special counsel should advise the private client that extra expense and delay may result because counsel cannot handle any future litigation against the town, where the conflict would be palpable.

Currency note

This opinion was issued in 1992, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The conflict and government-lawyer provisions cited here have since been recast in Rules 1.7, 1.10, and 1.11. 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 town's special counsel represent private clients before the town's zoning or planning board?

A: Yes, absent actually differing interests. The committee held that a private applicant's interests are not necessarily adverse to the town's, so DR 5-105(A) does not impose a per se bar on special counsel retained for a particular matter.

Q: When can special counsel not appear before those boards?

A: When the nature or volume of the town work makes the lawyer the functional equivalent of a regular member of the town attorney's staff, or when the matter is so important to the town that special counsel is perceived as having significant influence with the boards.

Q: What must special counsel tell the private client up front?

A: That extra expense and delay may flow from counsel's inability to handle any future litigation against the town, and from the need to withdraw if town officials actively oppose the application or differing interests otherwise arise.

Background and rules framework

The opinion applied DR 5-105(A), (C), and (D) (declining or continuing representation involving differing interests, and imputation within a firm), DR 5-108 (former-client conflicts), and EC 5-15, to an outside lawyer serving a municipality. The closest Model Rule analogues are Rule 1.7 (concurrent conflicts), Rule 1.10 (imputation), and Rule 1.11 (government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (concurrent conflicts of interest)
• MR 1.10 (imputation of conflicts)
• MR 1.11 (former and current government officers and employees)
• NY DR 5-105(A), (C), (D); DR 5-108; EC 5-15

Statutes:

• N.Y. Town Law section 20(2)(a) (employment of counsel to the town attorney)
• N.Y. Town Law sections 267, 274-a, 276 (zoning board of appeals and planning board functions)

Other opinions cited:

• N.Y. State 603 (1989): part-time assistant city attorney before city agencies
• N.Y. State 580 (1987): special bond counsel and the town's boards
• N.Y. State 564 (1984): special district attorney in private criminal practice
• N.Y. State 629 (1992): conditions for a public entity's consent to a conflict

See also

• NY State Bar Op. 632: A part-time judge before the town's zoning and planning boards
• NY State Bar Op. 629: Conflicts among governmental entities
• NY State Bar Op. 657: A part-time municipal lawyer and the criminal-defense bar
• NY State Bar Op. 631: A title-insurer agent serving as counsel to a public agency

Source

• Landing page: https://nysba.org/opinion-630/