Can a city attorney advise a city ethics board investigating an ethics complaint filed against a majority of the city council?
Texas Ethics Opinion 567: A City Attorney Advising an Ethics Board That Is Investigating the City Council
Short answer: Per the Committee, a lawyer who represents a city may not give legal advice to a city ethics board investigating and deciding a complaint filed against a majority of the members of the city council.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary 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.
Plain-English summary
A lawyer in private practice serves as a city attorney. Under the city charter, the city attorney serves at the discretion of the city council and is paid as the council fixes. The council later enacts an ethics ordinance creating an ethics board to review complaints against city employees and officials, and the ordinance makes the city attorney responsible for advising that board. A citizen then files an ethics complaint against a majority of the city council, and the city attorney is asked to advise the board on it.
The Committee first clears Rule 1.06(b)(1): because the city attorney does not represent the individual council members, advising the board against them is not a conflict between two clients, even though the board's position may be directly adverse to those members. The real problem is Rule 1.06(b)(2). Because the charter has the city attorney serving at the council's discretion and at compensation the council sets, advising the board against a majority of the council at least "reasonably appears" to be adversely limited by the city attorney's own interests in keeping his position.
The Committee then applies Rule 1.06(c), which can sometimes cure a 1.06(b)(2) conflict with the affected clients' consent. Citing Comment 7, the Committee reasons that where a disinterested lawyer would conclude the client should not agree, the lawyer should not even ask for consent. Given the inherent conflict between the board's duty to investigate and decide the complaint against most of the council and the city attorney's personal employment interests, the city attorney should not seek consent to advise the board on this complaint.
In practice
Under this opinion, and under the Texas rules as they stood at the time, a city attorney whose job and pay depend on the city council cannot advise a city ethics board on a complaint targeting a majority of that council. The Committee locates the conflict in Rule 1.06(b)(2) (representation adversely limited by the lawyer's own interests), not in Rule 1.06(b)(1) (the council members are not his clients). It treats the conflict as one a disinterested lawyer would tell the board not to waive, so the city attorney should not request consent under Rule 1.06(c).
Common questions
Q: I am a city attorney; can I advise the city's ethics board on a complaint against city council members?
A: It depends on whom the complaint targets. Under Opinion 567, when the complaint is against a majority of the council, the city attorney may not advise the board, because his job and compensation depend on that council.
Q: Isn't the problem that the council members are also my clients?
A: No. The Committee says the city attorney does not represent the individual council members, so Rule 1.06(b)(1) is not triggered; the conflict is under Rule 1.06(b)(2), the city attorney's own employment interests.
Q: Could the ethics board just consent to the city attorney advising it anyway?
A: The Committee says no. Citing Comment 7 to Rule 1.06, it reasons that because a disinterested lawyer would conclude the board should not agree, the city attorney should not even ask for consent under Rule 1.06(c).
Background and rules framework
The opinion interprets Texas Disciplinary Rule 1.06, which corresponds to ABA Model Rule 1.7 (conflicts of interest). Rule 1.06(b)(1) bars representing a person where the matter is substantially related and the person's interests are materially and directly adverse to another client; Rule 1.06(b)(2) bars representation that reasonably appears to be or become adversely limited by the lawyer's own interests; and Rule 1.06(c) permits such representation only if the lawyer reasonably believes it will not be materially affected and each affected client consents after full disclosure. The Committee relies on Comment 7 for the point that a lawyer should not seek consent a disinterested lawyer would advise against.
Citations and references
Rules of Professional Conduct:
- MR 1.7 (conflict of interest, current clients)
- Texas Disciplinary Rule 1.06(b)(1)
- Texas Disciplinary Rule 1.06(b)(2)
- Texas Disciplinary Rule 1.06(c)(1)-(2), Comment 7
See also
- TX Ethics Op. 579: A Public Defender Office as a Single Firm for Conflict Purposes
- TX Ethics Op. 578: Suing a Former-Client Municipality, and Whether Screening Helps
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-567/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_567.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
QUESTION PRESENTED
May a lawyer who represents a city render legal advice to an ethics board appointed by the city council regarding the investigation and determination of a complaint against a majority of the members of the city council?
STATEMENT OF FACTS
A lawyer in private practice represents a city as its city attorney. The city charter provides that the city attorney serves at the discretion of the city council, receiving such compensation as may be fixed by the council, represents the city in all litigation and legal proceedings, and performs other duties prescribed at the direction of the city council. The city council subsequently enacts an ethics ordinance that establishes an ethics board with powers to review and investigate complaints alleging ethics code violations made against employees or officials of the city. The ordinance specifically provides that the city attorney shall have the responsibility to render legal advice to the ethics board. A citizen then files a complaint against a majority of the members of the city council asserting claims of ethics code violations. The city attorney is called upon to provide legal advice to the ethics board concerning the complaint.
DISCUSSION
The city attorney does not represent the individual city council members. Therefore, in representing the ethics board concerning charges against city council members, the city attorney will not violate Rule 1.06(b)(1) of the Texas Disciplinary Rules of Professional Conduct, which provides that, unless the requirements of Rule 1.06(c) (discussed below) can be met, a lawyer shall not represent a person if the representation “involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of another client of the lawyer....” Although representation of the ethics board may be materially and directly adverse to the interests of the members of the city council against whom the complaint has been filed, those city council members are not clients of the city attorney.
However, Rule 1.06(b)(2) is applicable to the proposed representation of the ethics board with respect to this complaint. Rule 1.06(b)(2) provides in pertinent part that, unless the requirements of Rule 1.06(c) (discussed below) can be met, a lawyer shall not represent a person if the representation “reasonably appears to be or become adversely limited....by the lawyer’s own interests.” The city charter provides that the city attorney serves at the discretion of the city council and receives such compensation as may be fixed by the city council; therefore, representation of the ethics board against a majority of the members of the city council at least “reasonably appears” to be adversely limited within the meaning of Rule 1.06(b)(2) by the city attorney’s own interests in his position as city attorney.
Rule 1.06(c) provides that a lawyer may represent a client in the circumstances described in Rule 1.06(b)(2) if under Rule 1.06(c)(1) the lawyer “reasonably believes” that the representation of the client will not be materially affected and under Rule 1.06(c)(2) each “affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any.” In this case the “affected or potentially affected” clients would be the ethics board and the city. Comment 7 to Rule 1.06, in discussing Rule 1.06(c)(1), states that when a “disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, “ the lawyer should not ask for, or provide representation on the basis of, client consent. Under Rule 1.06(c)(1), given the inherent conflict between the ethics board’s responsibility to investigate and determine the complaint against a majority of the members of the city council and the personal employment interests of the city attorney, the city attorney should not ask for consent to the proposed representation of the ethics board with respect to this complaint.
CONCLUSION
In the circumstances presented, a lawyer who represents a city may not render legal advice to a city ethics board concerning the investigation and determination of a complaint against a majority of the members of the city council.
Tex. Comm. On Professional Ethics, Op. 567 (2006)