Can a municipal attorney who advised staff on a zoning decision also advise the zoning board hearing the appeal of that decision?

Plain-English summary

A municipal attorney advised the administrative staff before its decision on a zoning matter. That decision was then appealed to the Zoning Board of Adjustment, a municipal department. The attorney asked whether the Rules, or S.C. Code Ann. § 1-23-360, barred him from also advising the zoning board during its review.

The committee concluded that, under Rule 1.13 (organization as client), no Rule prohibits the attorney from advising the municipality at different stages of the zoning process. As counsel to the municipality, the lawyer may communicate with and advise its duly authorized constituents acting as agents of the municipality, and must make clear to each agent that the lawyer does not represent that agent individually, citing Rule 1.13(d) and Comment 4(a).

The committee noted that whether the communication violates any statute, regulation, or common law is beyond its role. But it added that if the attorney reasonably believes the contact between municipal counsel and the decision-making body may violate law and is likely to result in substantial injury to the client (for example, by invalidating the municipality's decision), the attorney must follow Rule 1.13(b) and take measures designed to minimize disruption to the organization and the risk of revealing information to persons outside it.

Currency note

This opinion was issued in 1995, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Can a municipal attorney advise both the staff and the appeal board in one matter?

A: The committee concluded the Rules do not prohibit it, because under Rule 1.13 the lawyer represents the municipality as an entity at each stage.

Q: Must the lawyer clarify whom he represents?

A: Yes. The committee said when advising municipal agents in their official capacities, the lawyer must ensure each agent knows the lawyer does not represent that agent individually.

Q: What if the contact might violate another law?

A: The committee left the legal question aside, but said if the lawyer reasonably believes the contact may violate law and substantially injure the client, he must follow Rule 1.13(b).

Background and rules framework

The opinion applied Rule 1.13 (organization as client, including the entity-representation principle, the Rule 1.13(d) duty to clarify the lawyer's role to constituents, and the Rule 1.13(b) procedure when organizational action threatens substantial injury), corresponding to Model Rule 1.13, against the statutory backdrop of S.C. Code Ann. § 1-23-360.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.13 / Model Rule 1.13: organization as client; duties to the entity and its constituents.

Statutes:

• S.C. Code Ann. § 1-23-360 (1986): ex parte communications in administrative proceedings.

See also

• SC Bar Ethics Op. 95-10: Public Defender and School Counsel
• SC Bar Ethics Op. 95-11: Working for a Legal Services Plan

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-08/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 95-08

Attorney A is employed as municipal attorney. Attorney A is consulted by administrative staff prior to staff's decision on a zoning matter. Staff's decision on the zoning matter is appealed to the Zoning Board of Adjustment, a municipal department.

Questions:
Does any provision of the Rules of Professional Conduct (SCACR 407) prohibit Attorney A, in his capacity as municipal attorney, from advising the Zoning Board of Adjustment during its review of the zoning matter? Does S.C.Code Ann. 1-23-360 (1986) prohibit the communication?

Summary:
No provision of the Rules prohibits Attorney A from rendering advice to the municipality at different stages of the zoning process. Other provisions of law may be applicable to this matter, however, and must be considered in this context.

Opinion:
In serving as counsel to a municipality, an attorney is subject to the provisions of Rule 1.13 (Organization as a Client). Thus, the attorney is permitted to communicate with duly authorized constituents of the municipality and to render advice to them in their capacities as agents of the municipality. In communicating with municipal agents in their official capacities, the attorney must insure that the individual agent is aware that the attorney does not represent that agent in his individual capacity. Rule 1.13(d); Comment 4(a).

Whether the communication would violate any provision of statutory, regulatory or common law is beyond the scope of this Committee's role. If, however, the attorney reasonably believes that communication between municipal counsel and members of the decision-making body may violate any provision of law and that such communication is likely to result in substantial injury to the client, the attorney is required to follow the procedure set forth in Rule 1.13(b). If consultation by members of the municipality's decision-making authority is prohibited by 1-23-360 or any other provision of law, and if such communication would prejudice the municipality by invalidating its decision on a municipal matter or otherwise, the attorney is obligated to take "measures . . . designed to minimize disruption of the organization and the risk of revealing information . . . to persons outside the organization." Rule 1.13(b).