I represent clients before my town's council and planning and zoning boards. If I get elected town moderator, a role limited to running the financial town meeting, can I keep representing those clients before the council and boards?

Plain-English summary

The inquiring attorney represented clients before a town's planning and zoning boards and the town council, and was considering running for the elected position of town moderator. The town moderator's function is limited to presiding over regular and special financial town meetings. The attorney asked whether being elected town moderator would prohibit continuing to represent clients before the town council and the planning and zoning boards.

The panel reviewed the town charter provisions defining the moderator's role: presiding at financial town meetings, regulating and managing meeting business, maintaining order, prescribing and publishing meeting rules, arranging the order of business (with the budget and capital expenditure items last), providing a written agenda in advance, and, under Robert's Rules of Order, calling for votes on motions after all qualified electors wishing to be heard have spoken.

Based on those charter provisions, the panel found the town moderator's duties ministerial, and concluded that, in the abstract, they do not present a material limitation to the attorney's representation of clients before the town council or the planning and zoning boards under Rule 1.7(b), which bars representation materially limited by the lawyer's responsibilities to another client, a third person, or the lawyer's own interest. Finding no other Rule that would prohibit the dual role, the panel concluded the attorney could represent clients before those bodies while serving as town moderator, while noting its guidance was limited to the Rules of Professional Conduct and did not extend to the State Ethics Code or other law.

In practice

The opinion holds that, under the Rhode Island rules as they stood at the time of the opinion and based on the specific town charter provisions submitted, a town moderator's presiding and scheduling duties at financial town meetings are ministerial in character and, in the abstract, do not create a Rule 1.7(b) material limitation on representing clients before the town council or the town's planning and zoning boards.

Common questions

Q: I'm a lawyer who represents clients before my town's council and land-use boards. Does holding a separate elected town position automatically create a conflict?

A: Not automatically. The panel's conclusion turned on the specific, ministerial nature of the town moderator role as defined in that town's charter; it did not adopt a blanket rule for every elected local office.

Q: What Rule governs whether a second role like this creates a conflict?

A: Rule 1.7(b), which the panel applied to ask whether the representation would be materially limited by the lawyer's responsibilities to another client, a third person, or the lawyer's own interests.

Q: Does this opinion clear the attorney under other laws, like a state ethics code covering public officials?

A: No. The panel expressly limited its guidance to the Rules of Professional Conduct and did not address the State Ethics Code or any other law that might bear on holding the moderator position.

Background and rules framework

The opinion applies Rule 1.7(b) (Conflict of Interest: Current Clients), the Model Rule counterpart of the same number, which the opinion paraphrases as barring representation of a client where the representation may be materially limited by the lawyer's responsibilities to another client, to a third person, or by the lawyer's own interest. The panel's analysis rested on the town charter's specific description of the moderator's ministerial duties rather than on a general characterization of local elected office.

Citations and references

Rules of Professional Conduct:

• MR 1.7(b) (Conflict of Interest: Current Clients) / RI Rule 1.7(b)

See also

• Alabama State Bar Op. 2005-01: City Attorney Who Is Also Defense Attorney in City Court Has Waivable Conflict of Interest
• RI EAP Op. 2005-09: Election to City Council Does Not Per Se Bar Representing Clients Before the City's Planning and Zoning Boards

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202002-06.pdf

Original opinion text

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

Final

                Rhode Island Supreme Court Ethics Advisory Panel
                      Opinion No 2002-06 Request No. 853
                           Issued September 12, 2002

Facts:

   The inquiring attorney represents clients before the planning and zoning boards of

a town and the town council. He/she is considering running for election to the position of
town moderator. The function of the town moderator is limited to presiding over regular
and special financial town meetings. The inquiring attorney seeks advice about whether
he/she can continue to represent clients before the town’s planning and zoning boards and
the town council if he/she is elected town moderator.

Issued Presented:

   Do the Rules of Professional Conduct prohibit the inquiring attorney from

representing clients before the town council and before the town’s planning and zoning
boards if he/she is also town moderator?

Opinion:

    The Rules of Professional Conduct do not prohibit the inquiring attorney from

representing clients before the town council, or before the planning and zoning boards if
he/she is elected town moderator.

Reasoning:

    The inquiring attorney submitted a copy of provisions of the town charter which

define the responsibilities of the town moderator. The charter provides in pertinent part
as follows:

                   The Moderator shall preside at all regular and special
           Financial Town Meetings and . . . shall have the power to regulate
           and manage the business of each meeting, and to maintain peace
           and good order during the meeting. The Moderator . . . shall
           prescribe the rules governing the conduct of any regular or special
           Financial Town Meeting and publish them fifteen (15) days prior
           to the meeting. . . . He or she shall arrange the order of business at
           regular meetings so that the consideration of the budget and capital
           expenditure items shall be the last item of business. . . . The
           Moderator shall immediately prior to each regular or special
           Financial Town Meeting provide a written agenda for all interested

Final 2002-06
Page 2

            electors of those items of business to be considered at the meeting
            and the order in which they will be considered. . . .

                    In accordance with Robert’s Rules of Order, the Moderator
            on a motion duly made and seconded relative to any business
            properly before the meeting and having heard all qualified electors
            desirous of being heard, shall cause the votes of the qualified
            electors present to be taken.

    It appears to the Panel that the duties of the town moderator are ministerial. In the

abstract these duties do not appear to present a material limitation to the inquiring
attorney’s representation of clients before the town council, or before the planning and
zoning boards. See Rule 1.7(b) (lawyer shall not represent a client if the representation
may be materially limited by lawyer’s responsibilities to another client or to a third
person, or by lawyer’s own interest.) Other provisions of the Rules do not prohibit the
attorney-town moderator from representing clients before the town council, or before the
planning and zoning boards. The Panel therefore concludes that the inquiring attorney
may so represent clients if he is elected town moderator.

    The Panel’s guidance is restricted to interpretations of the Rules of Professional

Conduct and does not extend to issues under the State Ethics Code or any other rules,
regulations or laws that may have bearing on the issues raised by this inquiry.