If a lawyer is an elected official or employee of a city, may the lawyer or the lawyer's firm represent clients in matters pending before that city?

Plain-English summary

The committee was asked whether a lawyer who is an elected official or employee of a municipality, or a lawyer associated with such a lawyer in practice, may represent clients in matters pending before the municipality or its departments, agencies, or courts. It answered no. Drawing on the Preamble to the Oklahoma Rules of Professional Conduct, the committee reasoned that a lawyer-public servant administers and interprets the community's rules on behalf of the citizens, who should be regarded as occupying a position at least equivalent to a client, so the lawyer is bound not to accept inconsistent employment.

The committee applied Rule 1.7(a) (no representation directly adverse to another client absent the rule's conditions) and Rule 1.10(a) (imputation of one lawyer's disqualification to partners and associates). It relied on ABA Formal Opinion 186 (1938) (a county attorney could not defend criminal cases in the same county) and prior OBA opinions, including Opinion 282 (1974) (an attorney sharing offices with an assistant city manager could not practice before the city's bodies). It concluded that an impermissible conflict exists where a lawyer-official or employee, or their partner or associate, represents a person in matters pending before the municipality, and that abstaining from voting does not cure the conflict, because the public perception of advantage remains. The committee held that, unlike private-client conflicts, this public conflict cannot be cured by client consent.

The committee drew a "bright line" exception: where a lawyer's involvement is part-time, voluntary, and essentially uncompensated service as an appointee on municipal boards or agencies (planning or zoning commissions, boards of adjustment, park and library boards, utility trusts, and similar), it is sufficient to exclude the lawyer-member and associated lawyers from appearing before that specific entity, while allowing appearances before other municipal agencies, departments, and courts, so as not to discourage lawyers from community service. The Oklahoma Bar Board of Governors later voted to withdraw this opinion.

Currency note

The Oklahoma Bar Association withdrew this opinion on November 18, 1994; it is published here for research only and is not current guidance. It was issued in 1992 under the Oklahoma Rules of Professional Conduct (effective July 1, 1988), before the later Ethics 2000-based amendments to those Rules (compare current Model Rules 1.7, 1.10, and 1.11). 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: Could a city-employed or elected lawyer represent clients before that city?

A: No, under this (now withdrawn) opinion. The committee concluded neither the lawyer-official nor an associated lawyer could represent clients in matters pending before the municipality.

Q: Could client consent fix the conflict?

A: No. The committee concluded that, unlike conflicts between private clients, a conflict involving a public official cannot be cured by client consent.

Q: Was there any exception?

A: Yes. The committee allowed lawyers serving as uncompensated part-time board appointees to appear before other municipal bodies, excluding only the specific entity they served.

Q: Is this opinion still in force?

A: No. The Oklahoma Bar withdrew it on November 18, 1994.

Background and rules framework

The opinion interpreted Oklahoma RPC 1.7 (conflicts of interest) and 1.10 (imputation), read against the Rules' Preamble and the former Code's Canon 9, and relied on ABA Formal Opinion 186 (1938), ABA Informal Opinion 855, and several OBA opinions (257, 274, 279, 282). These correspond to Model Rules 1.7 and 1.10.

Citations and references

Rules of Professional Conduct:

• Oklahoma RPC 1.7 / Model Rule 1.7: a lawyer shall not represent a client directly adverse to another client absent the rule's conditions.
• Oklahoma RPC 1.10 / Model Rule 1.10: imputation of one lawyer's conflict to the firm.

Other opinions cited:

• ABA Formal Opinion 186 (1938): a county attorney could not defend criminal cases in the same county.
• ABA Informal Opinion 855; ABA Formal Opinions 16, 33, 34, 71, 77, 192.
• OBA Opinions 257 (1969), 274 (1973), 279 (1974), 282 (1974).

Cases:

• In re Vrdolyak, 560 N.E.2d 840 (Ill. 1990).

See also

• Okla. Bar Ethics Op. 302: Part-time judge of a court not of record acting as defense counsel
• Okla. Bar Ethics Op. 294: Imputed conflicts within a public defender's office

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-305/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted December 18, 1992; Withdrawn: November 18, 1994

The Board voted to withdraw Legal Ethics Opinion No. 305 which was published in the May 28, 1994 issue of the Bar Journal, pages 1751-1753

INQUIRY

If a lawyer is either an elected official or an employee (full or part-time) of a municipality or one of its departments, agencies or courts, may either such lawyer or another lawyer who is associated with the lawyer-official or employee in the practice of law, represent clients in connection with matters pending before the municipality or its departments, agencies or courts?

OPINION

The inquiry is answered in the negative, for the following reasons.

The Preamble to the Oklahoma Rules of Professional Conduct states:

A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice.

This issue reflects directly upon the lawyer’s special responsibility for justice. It is imperative that each lawyer’s judgment be unencumbered by a duty to competing interests; and such actions must be free from speculation regarding motivation.

The public servant, whether elected official or employee, is entrusted with the responsibility of administering and interpreting rules, regulations and ordinances in the community. The public servant acts as a representative of the citizens. The public should be regarded as occupying a position at least equivalent to that of a client of the public servant, who is bound not to accept employment inconsistent with such a relationship.1

Under the former Code of Professional Responsibility, Canon 9 of the Disciplinary Rules provided, “A lawyer should avoid even the appearance of impropriety.” The new Oklahoma Rules of Professional Conduct likewise prohibits representing a client if the representation will be directly adverse to another client.

The Oklahoma Rules of Professional Conduct, Rule 1.7(a), provides:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) The lawyer reasonably believes representation will not adversely affect the relationship with the other client; and

(2) Each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interest, unless:

(1) The lawyer reasonably believes the representation will not be adversely affected; and

(2) The client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved. (emphasis added)

Likewise, Rule 1.10(a) prohibits partners or associates from representing a client, if any lawyer in the firm, practicing alone, would be prohibited from such representation.

Loyalty and confidentiality are essential elements in the lawyer/client relationship. Loyalty may be compromised or impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for a client because of the lawyer’s other responsibilities of interests. Confidentiality may be impaired, or the client may feel precluded from full and complete discussions with counsel, where the third party’s interest becomes involved. Such a conflict effectively forecloses alternatives which would otherwise be available to the client.

A similar case was addressed by the American Bar Association in its Formal Opinion No. 186 (1938). A lawyer acting as a county attorney in civil matters only, had sought permission to represent and defend parties in criminal cases filed in the same county. In concluding that the lawyer could not represent criminal defendants, the committee opined:

(F) or the county attorney charged with public duties to accept employment adverse to this public employer, puts the county attorney in an unseemly situation likely to destroy public confidence in him as a public officer and bring a reproach to his profession.

A lawyer employed by a city, even though not performing the functions of an attorney, is governed by the same standards of conduct and ethical considerations required of him as an attorney.2 Any employment which may be unethical for one member of a law firm to undertake in a particular situation, does not render such employment ethical simply by permitting a partner or associate of the firm to do so.3

The OBA has also addressed a similar matter involving an attorney employed as an Assistant City Manager. In OBA Ethics Opinion No. 282 (1974), the Board of Governors concluded it was improper for an attorney to practice law before various municipal boards, commissions, courts and council, etc., when the attorney shares offices and associates on a number of cases with another attorney who is employed by the city in question as an Assistant Manager. Although this opinion predates the Oklahoma Rules of Professional Conduct, its sound and cogent reasoning is equally applicable to the matter at hand.4

In some specific cases, the Rules of Professional Conduct provide that a lawyer may represent multiple parties. Such multiple representation may only be authorized upon the express consent of each client, and only after they each have been fully informed of the conflict of interest, and its potential consequences upon the representation. However, an attorney involved in public service such as an elected official or employee of a governmental agency, is governed by a higher obligation than a lawyer facing a conflict of interest between private citizens.

Where an attorney serves in some public capacity, even though not performing the functions of a lawyer, a situation involving a conflict of interest cannot be cured simply by obtaining consent of the client whose interest is adverse to the public authority.5 The American Bar Association in its Informal Opinion No. 855 stated:

Generally speaking, any person in public office, including attorneys, have as their primary duty that of performing the function of the office in a wholly hones, impartial and ethical manner.

Because lawyers are before the public and being compensated by public tax money, they must avoid not only all evil but the mere appearance of it.

In most conflict of interest situations, the lawyer or his firm is under a duty to only inform the parties interested and to whom they represent and hopefully secure all persons’ consent. However, in public affairs it has been held that such consent cannot be utilized by persons standing in a public or quasi public position. (See ABA Formal Opinions 16, 34, 71, 77, 192; Informal C-691.) (emphasis added)

In the issue under consideration, where a lawyer serves a municipality or any of its departments, agencies or courts, as either an elected official or an employee, an impermissible conflict of interest exists in a situation where either such lawyer or such lawyer’s partner or associate represents a person in matters pending before the municipality, its agencies, departments or courts. It is not sufficient to cure the conflict for the official or employee to abstain from voting or other involvement in connection with the issue. By so doing, the public servant abrogates a responsibility and duty to the public, if such voting or involvement would otherwise be appropriate. But even if no involvement with the matter would have been required in any event, the public perception would still remain that not only the lawyer-official or employee, but a lawyer associated with the lawyer-official or employee, may gain some advantage from the knowledge on the part of other elected officials or fellow employees of the municipality or its agencies of this relationship, even if the lawyer-official or employee does not directly participate in or influence the decision.

However, the same policy considerations requiring a “bright line” exclusion do not apply where a lawyer’s involvement consists of part-time, voluntary service of an essentially uncompensated nature (which would allow nominal per-diem payments and expense reimbursement) as an appointee on municipal boards or agencies. Examples would be service on planning or zoning commissions, boards of adjustment, park and library boards, utility trusts, and similar activities. There, the relevant policy considerations must be weighed against the undesirability of discouraging lawyers as a group from participating in an important form of voluntary, essentially uncompensated, community service. In such cases it is sufficient to exclude the lawyer-member and lawyers associated with the lawyer-member from appearing in a representative capacity before the entity in question, but allowing such appearances before other municipal agencies, departments and courts.

This issue is not novel or one of first impression. The general policy of prohibiting the representation of multiple parties with conflicting interests traces its roots to the origins of our profession. The Oklahoma Bar Association, as well as associations in numerous other states, has consistently enforced policies to avoid even the appearance of a party’s rights being impaired, or potentially being impaired, as a result of a lawyer’s duty or obligation to a third person or entity. Although legal ethics opinions from Oklahoma and other states generally predate Oklahoma’s adoption of the Rules of Professional Conduct, such Rules are in no way inconsistent with the conclusions expressed herein or in such earlier opinions.

1 OBA Legal Ethics Opinion No. 279 (1974)

2 OBA Legal Ethics Opinion No. 274 (1973).

3 ABA Formal Opinion No. 33 (1931) and OBA Legal Ethics Opinion No. 282 (1974).

4 See: In Re: Vrdolyak, 560 N.E.2d 840 (Ill. 1990). The Illinois Supreme Court, in a lengthy and well reasoned opinion, has also found a conflict of interest exists under extremely similar facts.

5 OBA Legal Ethics Opinion No. 257 (1969).