Can a law firm represent a client before a local governing body when one of the firm's lawyers sits on that body, even if the lawyer discloses the tie and abstains from voting?

Plain-English summary

The committee was asked to reconsider LEO 1718, which held it impermissible for a firm to represent a client before a governing body when one of the firm's lawyers sits on that body, even if that lawyer discloses the relationship and abstains from voting. The request urged reconsideration because Virginia had adopted the Rules of Professional Conduct since 1718 and because the bar worried 1718 might discourage lawyers from serving on public boards.

The committee finds the regulatory change does not alter the result. Although the former Code's "appearance of impropriety" language (Canon 9) was not carried into the new Rules, the substance of former DR 8-101(A) and DR 9-101(C) survives in Rule 8.4(d), preserving the prohibitions on using public office for improper influence or advantage and on suggesting influence with a government official. The conflict-of-interest portion of the Rules remains an appropriate basis for analysis, and a majority of state bars addressing the issue have found such conduct improper.

The committee finds the Michigan Bar's analysis (Mich. Bar Op. RI-22 (1989), applying Rule 1.11) especially compelling: although Rule 1.11(b) might seem to let a board-member cure the conflict by recusing, the Michigan Bar held recusal unavailable because it would "deprive citizens of the representative elected to exercise judgment." The committee agrees, holding that the board-member's obligation to constituents disqualifies any lawyer in his firm from appearing before the board, and that recusal would itself violate Comment 1 to Rule 1.11 (a public officer should not engage in activities conflicting with duties to the public). It treats the board-availability concern as a public-policy matter that cannot override the Rules, and reaffirms LEO 1718.

Currency note

This opinion was issued in 2002. Virginia's Rule 1.11 and related conflict provisions may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, a firm may not appear before a governing body on which one of its lawyers sits, and that the member's recusal does not cure the conflict because abandoning his duty would harm the constituents he serves. The committee reaffirms LEO 1718 and treats the policy concern about board availability as outside its rules-interpretation role. (This conclusion was later distinguished in LEO 1773, which declined to extend the per se bar to appearances before local bodies on which no firm member serves.)

Common questions

Q: Can a firm appear before a local board if one of its lawyers is a board member?

A: No. The committee holds it impermissible for a firm to represent a client before a governing body on which any firm lawyer serves.

Q: Does the board-member's recusal fix the problem?

A: No. The committee, agreeing with the Michigan Bar, holds recusal does not cure the conflict because it would deprive constituents of the judgment they elected the member to exercise, contrary to Comment 1 to Rule 1.11.

Q: Did the move from the old Code to the new Rules change the result?

A: No. The committee finds that although the "appearance of impropriety" language was dropped, the substance of the old disciplinary rules survives in Rule 8.4(d), and the conflict-of-interest analysis still supports the prohibition.

Background and rules framework

The opinion interprets Rule 1.11 (Model Rule 1.11; a lawyer who is a public officer, and Comment 1's caution against conflicts with public duties) and Rule 8.4(d) (Model Rule 8.4; carrying forward former DR 8-101(A) and DR 9-101(C) on misuse of public office and claimed influence). It relies on the Michigan Bar's Op. RI-22 (1989) and reaffirms Virginia LEO 1718.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Virginia Rule 1.11 and Comment 1 (lawyer as public officer)
• Model Rule 8.4 / Virginia Rule 8.4(d) (misuse of public office; successor to DR 8-101(A) and DR 9-101(C))

Other opinions cited:

• Virginia LEO 1718: original holding, reaffirmed here.
• Michigan Bar Opinion RI-22 (1989): recusal does not cure a board-member's conflict.

See also

• VA LEO 1773: Legislator's Firm Before Local Boards
• VA LEO 1785: County Attorney Conflict vs BZA
• VA LEO 1841: Council Member Challenging an Ordinance

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1763.pdf

Original opinion text

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

Committee Opinion
January 6, 2002
LEGAL ETHICS OPINION 1763

RECONSIDERATION OF LEO 1718;
REPRESENTATION OF CLIENT
BEFORE GOVERNING BODY WHEN
OTHER ATTORNEY IN SAME FIRM IS
MEMBER OF GOVERNING BODY.

You have requested a reconsideration of Legal Ethics Opinion 1718 [LE Op. 1718].
That opinion involved the following hypothetical:
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, is it 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 committee concluded 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.”
Your request suggests that reconsideration of that conclusion occur for two reasons: 1)
the adoption of the Rules for Professional Conduct since the issuance of LEO 1718 [LE
Op. 1718] and 2) the possible effect of LEO 1718 [LE Op. 1718] on the availability of
attorneys for service on public boards.
LEO 1718 [LE Op. 1718] cites a number of legal authorities as comprising the legal
foundation for the conclusion that the proposed conduct triggers an incurable conflict of
interest. The opinion analyzes discipline rules, ethics considerations, prior Virginia ethics
opinions, an ABA opinion, and numerous ethics opinions from other states.
The pertinent regulatory authority has changed since 1998, the year the committee
issued LEO 1718 [LE Op. 1718]. That opinion cites the following authority as pertinent
from the former Code of Professional Responsibility: Discipline Rules 8-101 (A) [DR:8101] and 9-101(C) [DR:9-101], along with Ethical Considerations 8-8 [EC:8-8] and 9-6
[EC:9-6]. The change highlighted by your request is that the phrase “appearance of
impropriety” in the title of former Canon 9, of which DR 9-101 [DR:9-101] was a part,
was not repeated in the corresponding portion of the new Rules for Professional Conduct,
that is, Rule 8.4(d) [Prof. Conduct Rule 8.4]. Also, the text of the two Ethical
Considerations cited in LEO 1718 [LE Op. 1718] does not appear in the new rules.
However, the text of DRs 8-101(A) [DR:8-101] and 9-101(C) [DR:9-101] remains
virtually intact in the new rules. Thus, the new rules maintain the prohibitions regarding

Committee Opinion
January 6, 2002
the use of a public office for improper influence or advantage and regarding the
suggestion that a lawyer has influence with a government official or entity.
While express reference to the “appearance of impropriety” standard is no longer in the
rules, the conflict of interest portion of the rules remains an appropriate source of analysis
for the question raised in LEO 1718 [LE Op. 1718]. As referenced in that opinion, a
majority of the state bars that have issued an opinion regarding this issue have found that
the proposed conduct is improper. While some of those opinions are based on an analysis
of the “appearance of impropriety” standard, opinions from other states are based in
whole or in part on a conflict of interest analysis.
This committee finds especially compelling the analysis developed by the Michigan
Bar on this issue. In considering this issue, the Michigan Bar relied upon an analysis of
Rule 1.11. Mich. Bar Op. RI-22 (1989). Part (b) of that rule addresses an attorney's
working on a matter both as a public official and in representing a private client. A
conflict of interest arising under Rule 1.11(b) [Prof. Conduct Rule 1.11] can be “cured” if
both the private client and the appropriate government agency consent after consultation.
That provision also provides that an attorney in that first attorney's firm could work on
the matter so long as the lawyer is properly screened and notice is given to the proper
agency. In applying that rule to the present issue, the Michigan Bar found that, at first
blush, the rule would suggest that the government board member could “cure” the
conflict by recusing himself from the matter. Nevertheless, the Michigan Bar concluded
that such a “cure” was not available to the attorney/board member as such a withdrawal
from duty would “deprive citizens of the representative elected to exercise judgment in
such matters.” This committee agrees with the Michigan Bar's conclusion that the
attorney/board member's obligation to his constituents would disqualify any attorney in
his firm from appearing before the board.
This committee opines that the situation in the present hypothetical triggers an
impermissible conflict of interest under the Rules for Professional Conduct. This conflict
of a partner representing a client before a partner's board should not be “cured” by the
board member's recusal from the matter. Such recusal goes against the directive found in
Comment 1 to Rule 1.11 [Prof. Conduct Rule 1.11], which states,
This Rule prevents a lawyer from exploiting public office for the advantage of the
lawyer or a private client. A lawyer who is a public officer should not engage in
activities in which his personal or professional interests are or foreseeably may be
in conflict with official duties or obligations to the public.
Thus, this committee opines that for an attorney/board member to recuse himself from a
matter before his board in order that his law firm may accept representation of a private
client creates an impermissible conflict of interest. Therefore, an attorney may not accept
representation of a client in a matter that would require an appearance before a board, or
other public body, of which any member of that attorney's firm is a member.

Committee Opinion
January 6, 2002
Your request raises as cause for reconsideration not only the recent rules change in
Virginia but also the concern that the conclusion of LEO 1718 [LE Op. 1718] could limit
the availability of lawyers for service on public boards. The committee notes that this
concern is actually one of public policy rather than of rules interpretation. The committee
opines that, regardless of public policy considerations, the Rules of Professional Conduct
do not permit the proposed conduct. The committee also notes that this particular
potential consequence was considered and addressed in LEO 1718 [LE Op. 1718].
This committee reaffirms the conclusion of Legal Ethics Opinion 1718 [LE Op. 1718].
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.
Committee Opinion
January 6, 2002