Can a law firm represent a client before a local governing body when one of the firm's lawyers is a member of that body, if the lawyer-member discloses the tie and abstains?

Plain-English summary

Lawyer A and Lawyer B were in the same firm. Lawyer A sat on a local governing body; Lawyer B represented a firm client in a zoning application before that body. Lawyer A would disclose his relationship with Lawyer B and abstain from the body's consideration and decision. The committee was asked whether, given that disclosure and abstention, Lawyer B could represent the client before the body.

The committee traced its line of opinions barring a firm lawyer from lobbying the General Assembly when a firm member sat in it (LEOs 419, 537, 1278), holding that a lawyer-legislator's compliance with the conflict-of-interests statutes discharges a legal obligation only and does not override the higher ethical duties of the profession. Quoting Gunter v. Virginia State Bar, the committee reiterated that conduct may be unethical even if lawful, because lawyers are held to a higher standard than the statute and common law. It surveyed the weight of out-of-state authority barring such representation, the minority Arizona approach (In re Ethics Op. No. 74-28) that allowed it with disclaimer, non-participation, and fee separation, and the ABA's shift from a flat bar (Formal Op. 296) to an "implied consent" position tied to state conflict statutes (Formal Op. 306). The committee declined to follow the ABA's implied-consent view.

The committee concluded the representation is not permissible. Public confidence is not inspired, and an appearance of impropriety not avoided, when a firm appears before a body on which its lawyer sits, even with recusal: the public would perceive an "inside track," the lawyer-member benefits economically through firm overhead and compensation tied to business he produces, and the firm's loyalty to the client is diluted because it must exclude the lawyer-member and his knowledge from the representation (so seeking client consent may amount to seeking consent to less-than-adequate representation). The committee acknowledged the concern that this could chill lawyers from public service but reasoned the opposite rule would chill adequate representation of constituents. It held it is not ethically permissible for a firm to represent a client before a governing body on which one of its lawyers is a member, even with disclosure and abstention.

Currency note

This opinion was issued in 1998, under Virginia's former Code of Professional Responsibility (the disciplinary rules and ethical considerations it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. Later opinions (LEOs 1763 and 1773) have applied and refined this analysis under the current rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific point here.

Common questions

Q: Can a firm appear before a board if its lawyer-member just abstains?

A: Under this 1998 opinion, no. The committee held disclosure and abstention do not cure the appearance of impropriety, the economic benefit to the lawyer-member, or the diluted loyalty to the client; the representation is not ethically permissible.

Q: Doesn't complying with the conflict-of-interests statute take care of it?

A: The committee said no. Compliance with the conflict-of-interests laws discharges a legal obligation only; quoting Gunter, it stressed that lawful conduct can still be unethical because lawyers are held to a higher standard.

Q: Why isn't client consent enough?

A: Because the firm must exclude the lawyer-member and his knowledge of the matter and the body, the representation's resources are impaired. The committee reasoned that seeking consent to that limitation may be seeking consent to less than adequate representation.

Background and rules framework

The opinion was decided under Virginia's former Code of Professional Responsibility: DR 8-101(A) (a lawyer holding public office not using the position for special advantage) and DR 9-101(C) (not implying improper influence over a tribunal or public official), guided by EC 8-8, EC 9-2, and EC 9-6 on conflicts and the appearance of impropriety. The modern analogues are Rule 1.11 (government lawyers and officials) and Rule 8.4.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 8-101(A), DR 9-101(C); EC 8-8, EC 9-2, EC 9-6 (Code of Professional Responsibility)

Cases:

• Gunter v. Virginia State Bar, 238 Va. 617 (1989), conduct may be unethical even if lawful; lawyers held to a higher standard.
• In re Ethics Op. No. 74-28, 111 Ariz. 519 (1975), minority view permitting firm appearances with safeguards.

Other opinions cited:

• Virginia LEOs 419, 537, 1278: a firm lawyer may not lobby a legislative body on which a firm member serves, despite disclosure and abstention.
• ABA Formal Ops. 296 (1959) and 306 (1962): the shift from a flat bar to an implied-consent rule, which the committee declined to follow.

See also

• VA LEO 1763: Firm Member on the Board Appeared Before
• VA LEO 1773: Legislator's Firm Before Local Boards

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1718.pdf

Original opinion text

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

Committee Opinion
December 2, 1998
LEGAL ETHICS OPINION 1718

CONFLICT OF INTEREST; ATTORNEY
AS MEMBER OF LOCAL GOVERNING
BODY AND MEMBER OF LAW FIRM
WHICH REPRESENTS A CLIENT IN
MATTER WHICH MUST BE ACTED
UPON BY THAT GOVERNING BODY.

You have presented a hypothetical in which Lawyer A and Lawyer B are members of
the same law firm. Lawyer A is a member of a local governing body. Lawyer B
represents a client of the law firm in a zoning application before the local governing
body. Lawyer A will disclose his relationship with Lawyer B and will abstain from
participation in the local governing body's consideration and decision concerning the
zoning application of the law firm's client. Based on those facts, you have asked the
committee to opine whether it is ethically permissible for Lawyer B to represent a
client in a matter before the local governing body on which Lawyer A serves if Lawyer A
discloses his relationship with Lawyer B and abstains from participation in the local
governing body's consideration of the matter.
The appropriate and controlling disciplinary rules pertinent to your inquiry follow:
DR:8-101(A): A lawyer who holds public office shall not:
(1) Use his public position to obtain or attempt to obtain, a special advantage in
legislative matters for himself or for a client under circumstances where he knows or
it is obvious that such action is not in the public interest.
DR:9-101(C): A lawyer shall not state or imply that he is able to influence
improperly or upon irrelevant grounds any tribunal, legislative body or public
official.
Guidance is also provided in the Ethical Considerations to the Disciplinary Rules, as
follows:
EC:8-8: Lawyers often serve as legislators or as holders of other public offices. This
is highly desirable, as lawyers are uniquely qualified to make significant
contributions to the improvement of the legal system. A lawyer who is a public
officer, whether full or part-time, should not engage in activities in which his
personal or professional interests are or foreseeably may be in conflict with his
official duties.
EC:9-6: Every lawyer owes a solemn duty . . . to conduct himself so as
to reflect credit on the legal profession and to inspire the confidence,
respect, and trust of his clients and of the public; and to strive to
avoid not only professional impropriety but also the appearance of
impropriety.

Committee Opinion
December 2, 1998

In prior LEOs the committee has addressed whether a lawyer may lobby the General
Assembly on behalf of a client when another lawyer in the law firm is a member of the
General Assembly. In LE Op. 419, dated July 21, 1981, the committee opined that it was
not ethically permissible for a lawyer to lobby the General Assembly or other legislative
body when his partner was a member of the legislative body, notwithstanding disclosure
and abstention by the lawyer-legislator and disclosure by the lawyer-lobbyist. In LE Op.
537, dated January 18, 1984, the committee affirmed LE Op. 419. In doing so, the
committee observed that "the Virginia Comprehensive Conflict of Interest Act does not
obviate [the conclusion reached in LE Op. 419] nor in any way diminish the professional
responsibility of the attorney."
The subject was revisited in LE Op. 1278, dated September 21, 1989. The committee
was asked to consider whether, in view of the enactment of the detailed General
Assembly Conflict of Interests Act (Code of Virginia §§ 2.1-639.30, et seq) a member of
a law firm was permitted to lobby the General Assembly when another member of the
law firm was a member of the General Assembly. The committee affirmed LE Op. 419
and LE Op. 537, stating:
The Committee is of the view that the conclusions reached in Legal Ethics Opinions
Nos. 419 and 537 continue to be applicable to the situation you have described,
notwithstanding the greater detailed disclosure now required of legislators under the
[Conflict of Interests] Act. It is the Committee's opinion that the legal requirements
of disclosure and abstention imposed on members of Virginia legislative bodies do
not override the ethical admonitions of the applicable disciplinary rules. The
Committee continues to believe that compliance with the Act by the legislator is a
legal, not an ethical, requirement and will not obviate the need for both lawyerlegislators and lawyer-lobbyists to adhere to the ethical obligations of the profession.

Therefore, upon careful reconsideration, the Committee reaffirms the prohibitions
articulated in Legal Ethics Opinions Nos. 419 and 537 and opines that, the General
Assembly Conflict of Interests Act notwithstanding, it is improper for an attorney to
lobby before the General Assembly or other legislative body when a lawyer with
whom he shares a professional relationship is an elected member of that body.
Ethics panels in most other jurisdictions have concluded that it is not ethically
permissible for a lawyer in the lawyer-legislator's law firm to represent clients in matters
before a legislative body on which the lawyer-legislator serves. That the lawyer-legislator
recuses himself/herself from participation and voting in the matter was found to be
inadequate to cure what some ethics panels described as a conflict of interest, and others,
an appearance of impropriety. However the ethical proscription was described, it was
imputed to the entire law firm. See Michigan Op. RI-22 (1989); Connecticut Op. 37
(1988) and Op. 94-19 (1994); Illinois Op. 90-17 (1991); Iowa Op. 92-31 (1993), 93-25
(1994), and Op. 96-20 (1996); Rhode Island Op. 93-14 (1993); Kentucky Op. E-347

Committee Opinion
December 2, 1998
(1991); Alaska Op. 76-1 (1976); Nebraska Op. 96-2 (undated); Philadelphia Bar Ass'n
Op. 87-20; South Carolina Op. 90-20 (1990); and Maryland Op. 91-15 (1991); see In re
Vrdolyak, 137 Ill. 2d 407, 560 N.E.2d 840 (1990), and In re Opinion 452 87 N.J. 45, 432
A.2d 829 (1981).
A different conclusion was reached in In re Ethics Op. No. 74-28, 111 Ariz. 519, 533
P.2d 1154 (1975) (en banc). In that case a lawyer was an elected member of the city
counsel. One question presented was whether members of the city councilman's law firm
were prohibited from representing clients in civil matters before the city council.
It was argued that the Arizona conflict of interests laws controlled. The public interest
was fully protected, it was contended, by compliance with the statutory curative measures
by which public officials could avoid potential conflict of interests. The Arizona Supreme
Court turned away the "exclusivity" of the conflict of interests laws, stating that "This
court can obviously set higher standards for the members of the bar than the legislature
has set for public officials in general." 111 Ariz. at 521, 533 P.2d at 1156. The court
reached what it described as a common sense solution to avoid an appearance of
impropriety and to encourage public service by lawyers:
[M]embers of the firm can appear before the city council if: 1) the attorney public
official publicly announces his disqualification and, if there is a record of
proceedings, that disqualification appears in the record, 2) the attorney public official
refrains from discussing the matters upon which the firm appears with any of his
colleagues on the council and any city employees involved with the matters, and 3)
there is a separation of accounts so that the attorney public official in no way
shares in the fee or other remuneration received by the firm.
Id.
In a concurring opinion, Chief Justice Cameron addressed the Canon 9 axiomatic norm
that lawyers are to avoid "even the appearance of impropriety," stating at 522, 533 P.2d at
1157:
Canon 9 states, `A lawyer should avoid even the appearance of professional
impropriety. ' This is, of course, a worthy and commendable goal, but that is all it
can be - a goal that is often unattainable in the practical world of private law practice.
What is professionally improper is frequently in the eye of the beholder and ethical
conduct to those outside the legal profession can have the appearance of professional
impropriety. . . . [I]t should then be emphasized that while we are concerned with
avoidance of conduct that would give the appearance of professional impropriety, it
is actual unethical conduct which is our primary concern. Ethical conduct which
only incidentally creates the appearance of professional impropriety in the minds of
the public should not, absent other factors, be proscribed. To be overly strict in
interpreting Canon 9 would prevent an attorney from discharging his responsibility
as a citizen to participate in public affairs and hold public office. To deny an attorney
this opportunity for public service would not only unnecessarily restrict his rights as

Committee Opinion
December 2, 1998
a citizen, but would imply that attorneys are exempt from the reasonable demands
and responsibilities of citizenship, a result which, we believe, would reflect
unfavorably upon the legal profession and be a loss to society.
See West Virginia Op. 84-5 (1985), permitting a lawyer to serve as a hearing examiner
for a state commission when his law firm represented clients before the commission,
provided he did not participate in the matters in which his law firm or law firm clients
were involved; New Hampshire Op. 1996-92/14 (1992), permitting law firm to represent
clients before workers' compensation appeals board on which one of its lawyers was
an appointed member, provided the lawyer-member publicly disqualified himself and
abstained from participation and did not attempt to influence the other members, and the
law firm did not have access to information of the appeals board.
The ABA Standing Committee on Legal Ethics has issued two opinions on the ethics
issue presented. ABA Formal Opinion 296 (1959) concluded that there was an inherent
conflict of interest in a lawyer lobbying the legislature for a client when another lawyer in
the law firm was a member of the legislature. The conflict of interest affected the public,
and the public could not consent.
Three years later, the ABA reconsidered and modified its conclusion. In ABA Formal
Opinion 306 (1962), the ABA said that the unintended effect of its earlier opinion
deterred lawyers from serving in state legislatures, and that a modification was warranted.
Its modification was tied to states' conflict of interests rules for legislators.
The ABA reasoned that when a state had adopted constitutional or statutory conflict of
interests rules requiring legislators to disclose personal interests and abstain from voting,
those rules expressed the public policy of the state. Hence, a disclosure of the lawyerlegislator's interest in and relationship to the lobbying by a lawyer in his/her law
firm, coupled with abstention from voting on the matter, cured the conflict of interest.
The "implied consent" rule was stated, as follows:
We have concluded that if in any particular state there are constitutional or statutory
provisions or legislative rules which expressly or by necessary implication recognize
the propriety of a lawyer appearing before legislative committees, or otherwise
lobbying in the legislature for a client where a member of his firm or associate was at
the time a member of the legislature, or where provision has been made permitting a
member of the legislature to disqualify himself from voting on or participating in
the discussion of the matter involved, consent has been given resolving the conflict
of interest questions, either by the people through the constitution or by the
legislature speaking for the state.
Notwithstanding the ABA's conclusion, the committee is not persuaded that a lawyerlegislator's compliance with the applicable conflict of interests laws ethically permits his
law firm to represent clients in matters before a state or local governing body on which he
serves. Such compliance discharges a legal obligation only. Conduct that is permissible

Committee Opinion
December 2, 1998
as a matter of law is not necessarily permissible as a matter of ethics. The distinction was
clearly drawn in Gunter v. Virginia State Bar, 238 Va. 617, 621 (1989):
The lowest common denominator, binding lawyers and laymen alike, is the statute
and common law. A higher standard is imposed on lawyers by the Code of
Professional Responsibility, many parts of which proscribe conduct that would be
lawful if done by laymen. . . . [W]e emphasize that more is expected of lawyers than
mere compliance with the minimum requirements of that standard . . . .

[C]onduct may be unethical, measured by the minimum requirements of the Code of
Professional Responsibility, even if it is not unlawful. . . .
State and local government conflict of interests laws express a salutary public policy.
The public policy expressed embraces citizen legislators generally. Lawyers who hold
public office assume responsibilities beyond those of other citizens by virtue of the Code
of Professional Responsibility. See Annotated Rules of Professional Conduct, Rule 8.4,
com. 3 (3rd ed. 1996). Moreover, the committee has opined in several opinions that the
Code of Professional Responsibility governs the conduct of lawyers who serve in a
capacity other than lawyer for a client. See LE Op. 1443 (lawyer acting as "lender's
agent"); LE Op. 1487 (lawyer acting as executor); LE Op. 1587 (lawyer acting as Chapter
7 bankruptcy trustee); LE Op. 1617 (lawyer acting as executor, trustee, guardian, or
attorney-in-fact). Hence, the committee affirms its conclusion in LE Op. 1278 that the
legal requirements of disclosure and abstention applicable to all members of legislative
bodies do not override the ethical constraints under the Code of Professional
Responsibility applicable to lawyers who are members of legislative bodies.
The committee recognizes that no Disciplinary Rule explicitly answers the question
presented. As the committee observed in LE Op. 1702, legal ethics, like ethics generally,
are fraught with gray areas that do not fit under a literally dispositive Disciplinary Rule.
There is not an ethical vacuum, however. The polestar is conduct that, consistent with the
admonitions of EC:9-2 and EC:9-6, reflects credit on and inspires public confidence in
and respect for the integrity of the legal profession and avoids the appearance of
impropriety.
Compliance with conflict of interests laws does not necessarily satisfy those ethical
admonitions. The Virginia Attorney General has addressed the purpose of the conflict of
interests law, as follows:
Our system of government is dependent in large part upon its citizens maintaining
the highest trust in their public officials. The conduct and character of public
officials is of particular concern to state and local governments, because it is chiefly
through that conduct and character that the government's reputation is derived. The
purpose of the conflict of interests law is to assure the citizens of the Commonwealth
that the judgment of public officers and employees will not be compromised or

Committee Opinion
December 2, 1998
affected by inappropriate conflicts. To this end, the [Conflict of Interests] Act
defines certain standards or types of conduct which clearly are improper. The law
cannot, however, protect against all appearance of conflict.
Attorney General COI Advisory Opinion No. 9-A10 (1989) [AG COI:9-A10]
(emphasis supplied).
You express a concern that LE Op. 1278 is unduly restrictive and could have a chilling
effect on lawyers who wish to stand for election to a local governing body. The
committee is not insensitive to your concern, yet a different rule could have a chilling
effect on the adequacy of a lawyer-legislator's representation of his constituents. For
example, if the lawyer-member of the local governing body in your hypothetical is
associated with a law firm that has a substantial zoning practice before the local
governing body, his/her recusal from participation in all of those applications would
effectively leave his constituents without a voice in the decision-making process.
The sense of the committee is that public confidence in the legal profession is not
inspired, nor is an appearance of impropriety avoided, if a law firm represents clients
before a governing body on which one of its lawyers is a member even if he/she abstains
from participation and voting. A likely public perception, and an understandable one, is
that the lawyer for the client has an advantage or an "inside track" because another lawyer
in the law firm is a member of the governing body.
Regardless of the lawyer-member's recusal, his/her cultivation of a relationship of trust
and respect with the other members and their inter-personal relations are likely to result
in a public perception that his/her law firm profits from that relationship in its
representation before the governing body. Conversely, if the law firm's representation is
unsuccessful, a nagging suspicion for the client is whether the governing body's decision
was the result of an unarticulated concern that it not be accused of impropriety in dealing
with a member's law firm.
That the lawyer-legislator would not, as required in In re Ethics Op. No. 74-28, receive
any portion of the legal fee does not diminish an appearance of impropriety. The
requirement itself seems to elevate form over substance. Even if a portion of the defined
fee is not distributed to the lawyer-member of the governing body, the fee paid the law
firm may well be used to pay law firm overhead allocable to the lawyer-member and
thus benefit him/her. If the lawyer-member of the governing body produces significant
clients that the law firm represents before the governing body, the law firm may consider
his/her production of business in arriving at his/her compensation or percentage of
profits. There, too, the lawyer-member has derived an economic benefit from his law
firm's representation of clients before the governing body on which he/she serves.
Moreover, if a law firm represents clients before a governing body when one of its
lawyers is a member, there is the appearance, if not the fact, of conflicting loyalties. The
law firm, which includes the lawyer who sits on the governing body, owes a duty of
loyalty to the client and must use all available resources to achieve the client's lawful

Committee Opinion
December 2, 1998
objective. The duty of loyalty is diluted and the available resources impaired, however,
when the law firm must exclude the lawyer-legislator from the representation, and the
law firm cannot enlist his knowledge of the subject matter or of the governing body in the
representation. The lawyer-legislator may have acquired non-public or even confidential
information as a member of the governing body that would serve the client's interest. The
client is denied the benefit of such information, however. If the law firm seeks clientconsent to the limitation on its resources, the law firm might well be asking for consent to
less than adequate representation.
Similarly, the lawyer-legislator has a duty to the governing body on which he/she
serves and to his/her constituents. When he/she abstains from the governing body's
decision-making because it involves his/her law firm's representation of a client, then
his/her personal interest is elevated over his/her duty as a public servant. Both the
governing body and the lawyer-legislator's constituents are deprived of the benefit of
his/her voice in the decision-making process.
The committee is not unmindful of Chief Justice Cameron's observation that avoiding
an appearance of impropriety is but a worthy goal that is often unattainable in the private
practice of law. The rationale underlying the worthy goal is, as Plato's allegory of the
cave illustrated long ago, that appearance can be understood to be reality. "[W]here
public confidence is in issue, what people think is true may be as important as what is
true." Association of the Bar of New York, Report of the Special Committee on the
Federal Conflict of Interest Laws, Conflict of Interest and Federal Service 17 (1960).
"The appearance of conflict is as dangerous to public confidence in the administration of
justice as true conflict itself." Lloyd N. Cutler, Conflicts of Interest, 30 Emory L.J. 1015,
1020 (1981). Significantly, the appearance of impropriety test remains in the ethics law
of the federal government. See generally Daniel L. Koffsky, The Appearance of
Wrongdoing, 6 Georgetown J. of Legal Ethics 501 (1993).
The sense of the committee is that whenever lawyers' conduct presents an appearance
of impropriety that can diminish public confidence in and respect for the integrity of the
legal profession, as well as the administration of government, lawyers must adhere to the
"higher standard" of ethical conduct emphasized in Gunter to avoid the appearance of
impropriety The committee concludes, therefore, that it is not ethically permissible for a
law firm to represent a client in a matter before a governing body when one of the law
firm's lawyers is a member of the governing body even if he/she discloses the conflict
and abstains from participation and voting in the matter.
Committee Opinion
December 2, 1998