Ezel / Ethics Opinions / NYSBA
NYSBA 2013-04-10

Can a town attorney who advised the building inspector then represent the zoning board of appeals in a related Article 78 case?

Short answer: Yes, ordinarily. The opinion holds the town attorney represents the Town as an entity, so advising the building inspector and later appearing for the zoning board are both service to one client, not differing interests; only unusual circumstances showing actual differing interests would require client consent under Rule 1.7.
Currency note: this opinion is from 2013
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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 Not binding precedent.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.

NY State Bar Ethics Opinion 965: Town attorney representing the zoning board after advising the inspector

Short answer: A town attorney who advised the town building inspector about issuing a certificate of occupancy may ordinarily appear for the Town Zoning Board of Appeals in an Article 78 proceeding about the building permit for the same building, because both are service to the Town as a single client; only unusual circumstances creating actual differing interests would require client consent.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association'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.

View original opinion

Plain-English summary

A town attorney advised the town building inspector about issuing a certificate of occupancy for a building permitted to Property Owner A. A neighbor, Property Owner B, had objected to the permit, lost an appeal to the Town Zoning Board of Appeals, and then brought an Article 78 proceeding against the Board. The Board asked the town attorney to appear for it in that proceeding (¶ 1).

The committee applies the entity-representation principle of Rule 1.13(a): a lawyer for a governmental organization represents the entity, not automatically its constituent individuals. A town attorney may provide legal services to constituents like the building inspector and the zoning board, but those services are ordinarily rendered in the course of representing the Town, not the constituents in their own right; whether the lawyer also represents a constituent is a fact and legal question outside the committee's jurisdiction (¶¶ 3-4).

Because the work is service to one client, the Town, there is no representation of differing interests under Rule 1.7(a)(1); a lawyer may represent a single client in multiple matters without conflict (¶¶ 5-6). The committee then considers the alternative scenario in which the appearance amounted to representing the Board in its own right. Even then, differing interests would not necessarily exist. Citing N.Y. State 501 (1979), the committee notes that under normal circumstances there is no impropriety in town counsel serving as counsel to the zoning board (¶¶ 7-8).

The opinion marks the boundary. If actual differing interests existed, the attorney could not represent the Board absent appropriate consent under Rule 1.7(b); N.Y. State 501 itself involved an Article 78 proceeding brought by the Town Board against the zoning board, where the antagonism required independent counsel, and Rule 1.7(b)(3) bars consent where one client asserts a claim against another before a tribunal. Here, though, the suit is by a property owner, not the Town against the Board, and nothing suggests differing interests, so the ordinary rule applies (¶¶ 9-11).

In practice

Under this opinion, as the rules stood at the time, the analysis starts from Rule 1.13(a): the town attorney's client is the Town as an entity, so advising the inspector and later appearing for the zoning board on the same building are service to one client, not adverse representations. The opinion holds there are no differing interests under Rule 1.7(a)(1) on these facts (¶¶ 5-6, 11).

Per the opinion, the result would change only if actual differing interests arose, for example a suit by the Town against the Board, in which case independent counsel or consent under Rule 1.7(b) would be required, subject to Rule 1.7(b)(3)'s limit on consent where one client sues another before a tribunal (¶ 9). The committee did not decide whether the attorney also separately represents any constituent, treating that as a question of fact and law.

Common questions

Q: Who is the town attorney's client when advising town officials?

A: The Town as an entity. The opinion holds that under Rule 1.13(a), advising constituents like the building inspector or zoning board is ordinarily service to the Town, not separate representation of those officials (¶¶ 3-4).

Q: Does advising the building inspector conflict with later representing the zoning board?

A: Ordinarily no. The opinion concludes both are service to one client, the Town, so there are no differing interests under Rule 1.7(a)(1) (¶¶ 6, 11).

Q: When would the town attorney be disqualified from representing the zoning board?

A: If actual differing interests existed. The opinion holds that absent consent under Rule 1.7(b) the attorney could not proceed; the clearest example, from N.Y. State 501, is where the Town itself sues the zoning board (¶ 9).

Background and rules framework

The opinion interprets Rule 1.13(a) and (d) (organization as client; analogous to Model Rule 1.13), under which a government lawyer represents the entity and may represent constituents only subject to the conflict rules, and Rule 1.7 (conflicts; Model Rule 1.7), including Rule 1.7(a)(1)'s "differing interests" standard and Rule 1.7(b)(3)'s limit on consentability where one client asserts a claim against another before a tribunal.

The committee relies on N.Y. State 501 (1979), reaffirming under the current Rules that town counsel ordinarily may serve the zoning board, while flagging the antagonistic-boards scenario that requires independent counsel.

Citations and references

Rules of Professional Conduct:

  • Model Rule 1.13 / NY Rule 1.13(a), 1.13(d) (organization as client; representing constituents)
  • Model Rule 1.7 / NY Rule 1.7 (conflicts; "differing interests"; consent limits)

Other opinions cited:

  • N.Y. State 501 (1979): town counsel may ordinarily serve the zoning board; independent counsel needed when the boards are antagonistic
  • N.Y. City 2004-03: a government lawyer representing an official in an official capacity ordinarily represents the agency alone

See also

Source