Can a full-time municipal attorney advocate for city management in a grievance heard by the city commission when that same commission is the attorney's regular client in its other capacities?

Plain-English summary

In a home-rule community with a commission-manager government, the commission also sat as a personnel board reviewing personnel actions and employee grievances, with authority to affirm, modify, or reject the manager's hiring and firing decisions. The full-time municipal attorney advised the city on all legal questions and was customarily consulted by management in personnel decisions; the city generally arranged outside counsel to advise the commission, sitting as the personnel board, during grievance hearings. The questions were whether the municipal attorney could represent management before the commission acting as a personnel board, and to what extent outside counsel was required.

On the first issue, whether to advise the commission/board during a hearing after having advised management, the committee saw a legal rather than an ethical problem. It concluded no ethical prohibition would be violated if the municipal attorney advised both management and then the board to the same effect, but that the situation could raise due-process concerns about the fairness of the hearing before a supposedly neutral decision maker. For that reason the committee concluded it was a wise choice, and particularly appropriate, for the city to arrange outside counsel to advise the personnel board when the municipal attorney appears before it as an advocate for management, avoiding any potential conflict and appearance of impropriety.

On the second issue, the committee concluded that Rule 16-111(G), which prohibits a lawyer in private practice from appearing as an advocate before a governmental body he or she represents, did not apply. As the committee comment explains, the purpose of the rule is to prevent a lawyer from exploiting public office for the advantage of a private client; paragraph G was added in New Mexico to address lawyers leaving the State Engineer's Office and then representing private clients before the State Engineer. Because the municipal attorney represents no private clients, the committee concluded the conduct does not violate the spirit of the rule, and that considerations of municipal economy may override any appearance of unfair influence. On the third issue, the committee saw no problem in the municipal attorney continuing to advise management on day-to-day personnel matters, given that outside counsel had been arranged for the board. It closed by directing the municipal attorney, in advising the city's various officials and staff, to the enabling ordinance and to Rule 16-113, the rule on an organization as a client.

Currency note

This opinion was issued in 1990, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rules 16-111 and 16-113). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). 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: Does the rule against appearing before a body you represent bar a city attorney from advocating before the commission?

A: The committee concluded Rule 16-111(G) did not apply to a salaried municipal attorney with no private clients, because the rule's purpose is to stop a lawyer from exploiting public office for a private client's advantage.

Q: Is it an ethics violation for the same lawyer to advise management and then advise the personnel board the same way?

A: The committee viewed this as a legal rather than an ethical problem, concluding no ethical prohibition would be violated, though it could raise due-process fairness concerns.

Q: Should the city retain outside counsel for the personnel board?

A: The committee concluded it was a wise choice, and particularly appropriate, for outside counsel to advise the board when the municipal attorney appears before it as an advocate for management.

Q: Can the municipal attorney keep advising management on day-to-day personnel matters?

A: Yes. Given that outside counsel had been arranged for the board, the committee saw no problem in the municipal attorney continuing to advise management, and pointed to Rule 16-113 on representing an organization.

Background and rules framework

The opinion interpreted Rule 16-111(G), the New Mexico-specific paragraph of the former-government-employment and conflicts rule (corresponding generally to Model Rule 1.11), reading it through its committee comment and drafting history to confine it to lawyers exploiting public office for private clients. It also pointed the municipal attorney to Rule 16-113 on an organization as a client (corresponding to Model Rule 1.13) for the framework governing whom the lawyer represents within the municipal structure.

Citations and references

Rules of Professional Conduct:

• Rule 16-111(G) (lawyer in private practice appearing as advocate before a governmental body he or she represents)
• Rule 16-113 (organization as a client)

Cases:

• None cited.

See also

• NM Ethics Op. 1990-2: Attorney's Duty of Candor to the Tribunal and Truthfulness to Others

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1990-92/1990-1.pdf

Original opinion text

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

Advisory Opinion 1990-1
MUNICIPAL ATTORNEY - CONFLICT OF INTEREST
In a home rule community with a commission-manager form of government, the commission also sits as a personnel board
for the purpose of reviewing personnel actions taken by management and hearing employee grievances. In its capacity as
personnel board, the commission is authorized to affirm, modify or reject the decision of the municipal manager, who has
general authority to hire and fire. municipal ordinances provide that the municipal attorney shall be the legal advisor of the
city and shall render advice on all legal questions affecting the city, whenever requested to do so by any official. The position
of the municipal attorney is a full-time staff position. In these circumstances, a potential conflict may be presented when a
grievance is filed with respect to a personnel action taken by the city management and the grievance is ultimately heard by
the commission in its capacity as personnel board. The municipal attorney is customarily consulted by management of the
city in arriving at its decisions on personnel matters; and for this reason, arrangements are generally made for outside
counsel to provide separate or independent advice to the commission in its capacity as personnel board during grievance
hearings. In general, the questions are presented whether it is permissible for the municipal attorney to represent
management at a hearing before the commission in its capacity as personnel board notwithstanding that the municipal
attorney regularly provides advice to the commission when acting in capacities other than as personnel board. To what
extent must outside counsel be retained in these proceedings.
Two issues are presented for review: the first is whether to advise the commission/board during personnel hearings when the
municipal attorney has previously advised management and the second is whether the municipal attorney may continue to
appear before the commission/board on personnel matters when the municipal attorney regularly advises that body when it
sits in other capacities. A third issue raised is whether the municipal attorney can still render day-to-day personnel advice to
management.
We do not perceive the first issue to be as much of an ethical problem as a legal problem. What we mean by that is that we
do not believe any ethical prohibition would be violated if the municipal attorney both advised management to fire a particular
employee, for example, and then advised the commission/board to the same effect. This situation may present due process
problems concerning the fairness of the employee's hearing before a supposedly neutral decision maker and, to that extent,
we believe it is a wise choice to advise the city to arrange for outside counsel for the commission/board in grievance
hearings. We believe that it is particularly appropriate for the personnel board to be advised by outside counsel when the
municipal attorney appears before it as an advocate for management. This will avoid any potential for conflict as well as any
appearance of impropriety that might otherwise attach due to the role as advisor to management.
The second issue presents potential ethical problems in light of SCRA 1986, 16-111(G), prohibiting a lawyer in private
practice from appearing as an advocate before a governmental body he or she represents. It is our opinion, however, that
this prohibition does not apply. As the committee comment to the rule indicates, the purpose of the rule is to prevent a lawyer
from exploiting public office for the advantage of a private client. Because the municipal attorney does not represent private
clients, this behavior does not violate the spirit of the rule.
Paragraph G of the rule was not part of the ABA draft. it was added when the rule was enacted in New Mexico to deal with
the problem of lawyers leaving the legal division of the State Engineer's Office and being on contract with the State Engineer
to continue handling some of the complicated water cases begun when they were on staff at the same time they are
representing private clients before the State Engineer in other matters. Because some of these matters in which the lawyers
represent private clients are matters in which two private parties are vying for the same water rights, it gives the appearance
of an unfair advantage to allow lawyers who represent the State Engineer on Monday to advocate on behalf of private
citizens in front of the State Engineer on Tuesday. These considerations are simply inapplicable to this case. The roles of
the city attorney and the municipal attorney do not change. Moreover, to the extent the municipal attorney may be giving the
appearance of being unfairly able to influence the commission/board, we believe that considerations of municipal or
government economy may override that appearance.
The third issue raised in whether the municipal attorney may continue to advise management on day-to-day matters. As this
appears an important part of the duties and because an arrangement has been made for outside counsel to represent the
board in its decision making capacity, we see no problem in the municipal attorney continuing to advise management.
Finally, in advising the city commission, the city manager, the commissioners individually, the city management, and the city
staff, in that order, the municipal attorney should refer to the enabling ordinance and SCRA 1986, 16-113, a new rule dealing
with an organization as a client.