Can a law firm that represents a public mental-health board also represent neighbors opposing a land-use variance sought by that board's agency?
Ohio BPC Opinion 88-021: Conflict in Representing a Public Board and Opposing Landowners
Short answer: The Board concluded that a firm representing a public mental-health board could not also represent landowners opposed to a land-use variance sought by the board's agency, because the clients had differing interests under former DR 5-105; the conflict could be overcome only if it was obvious the firm could adequately represent each client and both consented after full disclosure.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct'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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Ohio Board of Professional Conduct withdrew this opinion by Advisory Opinion 2020-04 on June 12, 2020. It is no longer current guidance and is indexed here for historical research only. The opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.7 on concurrent conflicts) before relying on any specific rule mentioned here.
Plain-English summary
A law firm under contract to provide legal services to a Community Mental Health Board asked about a possible conflict. The Board contracted with an Agency to serve domestic-violence victims, and the Agency was seeking a land-use variance for a shelter. The firm represented a group of landowners opposed to the shelter's location, while the Board supported the Agency's efforts and the variance.
Treating the Agency as a subsidiary of the Board given the Board's financing, monitoring, and control, the Ohio Board concluded that representing both the neighbors and the Board would be a conflict. It relied on EC 5-14 (independence of judgment when clients have differing interests), EC 5-15 (resolving doubts against representing clients with potentially differing interests), EC 5-16 (explaining the implications of common representation and continuing only with consent), and EC 5-19 (deferring to a client who questions the lawyer's loyalty). The governing Disciplinary Rule was DR 5-105: a lawyer shall not continue multiple employment if independent judgment will be or is likely to be adversely affected, except under DR 5-105(C), which permits multiple representation only if it is obvious the lawyer can adequately represent each client and each consents after full disclosure. Citing federal decisions, the Board emphasized that full disclosure means affirmative revelation of all facts and implications, and that a continuing relationship makes adverse representation prima facie improper. It concluded the conflict could be overcome only if the firm could obviously represent each client adequately and both the neighbors and the Board consented after full disclosure.
Common questions
Q: Could the firm represent both the public board and the opposing neighbors?
A: Not without meeting the consent conditions. The Board concluded the clients had differing interests under DR 5-105, so continuing both representations would be a conflict unless the firm could obviously represent each adequately and both consented after full disclosure.
Q: Why was the Agency's interest treated as the Board's?
A: The Board found the Mental Health Board had significant control over the Agency, financing, monitoring, and evaluating its activities, so for purposes of the opinion it treated the Agency as a subsidiary of the Board.
Q: What did "full disclosure" require?
A: The Board, quoting federal case law, described full disclosure as affirmative revelation by the attorney of all the facts, legal implications, possible effects, and other circumstances; a client's mere knowledge of the other representation was not enough.
Background and rules framework
The opinion applies former DR 5-105 (refusing or continuing multiple employment) and ethical considerations EC 5-14 through EC 5-19 of the Ohio Code of Professional Responsibility, supported by federal conflict-of-interest decisions. The current parallel on concurrent conflicts is Ohio Prof. Cond. R. 1.7 and Model Rule 1.7.
Citations and references
Rules of Professional Conduct:
- Former DR 5-105, Ohio Code of Professional Responsibility
- Former EC 5-14, EC 5-15, EC 5-16, EC 5-19, Ohio Code of Professional Responsibility
Statutes:
- Ohio Rev. Code Chapter 340 (community mental health boards)
Cases:
- Unified Sewerage Agency of Washington County v. Jelco Inc., 646 F.2d 1339 (9th Cir. 1981), conditions for multiple representation
- IBM v. Levin, 579 F.2d 271 (3d Cir. 1978), burden of disclosure and consent
- Financial General Bankshares, Inc. v. Metzger, 523 F. Supp. 744 (D.D.C. 1981), meaning of full disclosure
- Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), adverse representation during a continuing relationship
See also
- Ohio BPC Opinion 1988-020: County Commissioner Who Is a Lawyer Practicing in the Court of Common Pleas
- Ohio BPC Opinion 1988-011: Landlord-Lawyer and No Duty to Notify Tenant's Prior Counsel
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-021.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-021
Issued August 12, 1988
Withdrawn by Adv. Op. 2020-04 on June 12, 2020
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A lawyer or law firm which represents a public entity whose agency is seeking a land use variance cannot ethically represent landowners opposed to that variance. A lawyer should not represent multiple clients with differing interests unless it is obvious the lawyer can adequately represent the interests of each client AND each client consents to the representation after full disclosure of all the implications of the common representation.
OPINION: We have before us your request for an advisory opinion on a possible conflict of interest. In your request you indicate that your law firm has a contract with a Community Mental Health Board (Board) to provide legal services on an as needed basis for the year 1988. The Board contracts with an Agency to provide services and facilities for domestic violence victims in the area. The Agency is seeking a land use variance for a shelter. Your law firm represents a group of landowners which are opposed to the location of the Agency's shelter in their neighborhood. The Board, your client, is in support of the Agency's efforts to locate the shelter in the neighborhood and seek appropriate variances.
For reasons set forth below, it is our opinion that representing both the neighbors and the Board would constitute a conflict of interest. It is our understanding that the Community Mental Health Board has significant control over the Agency in that the Board finances, monitors and evaluates the Agency's activities. Ohio Rev. Code Sec. 340. Therefore, for purposes of this opinion, we consider the Agency to be a subsidiary of the Board.
There are several provisions in the Code of Professional Responsibility which apply here. First, EC 5-14 states:
[m]aintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two ...clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant.
According to your request letter, your law firm's clients (the Board and the neighbors) have differing interests with regard to the placement of the shelter.
Ethical Consideration 5-15 recommends that a lawyer should resolve all doubts against the propriety of the representation of clients having potentially differing interests. There are, however, instances in which a lawyer is justified in representing clients having differing interests. See, e.g., Code of Professional Responsibility, EC 5-15. Although, if a lawyer feels justified in representing clients with differing interests, he or she should "explain fully to each client the implications of the common representation and should accept or continue employment only if the clients consent." Code of Professional Responsibility, EC 5-16 (emphasis added). In addition, EC 5-19 states that,
[a] lawyer may represent several clients whose interests are not actually or potentially differing. Nevertheless, he should explain any circumstances that might cause a client to question his undivided loyalty. Regardless of the belief of a lawyer that he may properly represent multiple clients, he must defer to a client who holds the contrary belief and withdraw from representation of that client.
Thus, when a lawyer represents multiple clients it is the client and not the lawyer who determines whether the representation shall continue.
The aforementioned Ethical Considerations are "aspirational in character and represent the objectives toward which every member of the profession should strive." Code of Professional Responsibility, Preface. The Disciplinary Rules are mandatory in character and state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action." Id.
The Disciplinary Rule which is applicable to your request is DR 5-105, which states:
...B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).
(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.
Therefore, in order to avoid disqualification under DR 5-105(B), a lawyer must satisfy the two conditions found in DR 5-105(C). Unified Sewerage Agency of Washington County, Oregon v. Jelco Inc., 646 F.2d 1339, 1345 (9th Cir. 1981). First, it must be obvious that the lawyer can adequately represent the interests of each client and second, each client must consent to the multiple representation after full disclosure of the risks. Id.
The necessity of obtaining a client's consent to multiple representation places the burden of affirmatively providing disclosure and obtaining consent upon the lawyer. IBM v. Levin, 579 F.2d 271, 282 (3d Cir. 1978) "Full disclosure means just that - affirmative revelation by the attorney of all the facts, legal implication, possible effects, and other circumstances relating to the proposed representation. A client's mere knowledge of the existence of his attorney's other representation does not alone constitute full disclosure." Financial General Bankshares, Inc. v. Metzger, 523 F.Supp. 744, 771 (D.D.C. 1981).
Furthermore, maintaining public confidence in the bar requires an attorney to decline employment adverse to his or her client, even though the nature of the employment is wholly unrelated to that of his existing representation. Cinema 5, Ltd. v. Cinerama, Inc., et al., 528 F.2d 1384, 1387 (2d Cir. 1976). The Cinema 5 case also stands for the proposition that "[w]here the relationship is a continuing one, adverse representation is prima facie improper, (citation omitted) and the attorney must be prepared to show, at the very least, that there will be no actual or apparent conflict in loyalties or diminution in the vigor of his representation." Id. (emphasis in original).
In conclusion, it is our opinion and you are so advised that, based upon the Disciplinary Rules, the Ethical Considerations and the case law, continuing to represent both the Board and the landowners would constitute a conflict of interest. Such a conflict may be overcome if it is obvious that your law firm can adequately represent the interests of each client and if both the neighbors and the Board consent to the multiple representation after full disclosure of all the facts involved.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.
James W. Mason, Esq.
Secretary, Board of Commissioners