Can a lawyer who serves in the state legislature, or that lawyer's firm, represent private clients before local zoning boards and councils when no firm member sits on those boards?

Plain-English summary

A lawyer who is a member of the General Assembly belongs to a firm whose lawyers regularly represent private clients before local Boards of Supervisors, Town Councils, and Boards of Zoning Appeals on rezoning, special-exception, variance, and zoning-appeal matters, and process ministerial site and subdivision plans with locality staff. The committee was asked whether the legislator, or any firm member, may appear before those local bodies.

The committee distinguishes its recent LEO 1763 (which reconsidered LEO 1718). In 1763 a firm member sat on the very board his partners appeared before, and the committee held that the partner's representation triggered a per se conflict that imputed to the whole firm and could not be cured by the board-member's recusal. The committee explains that the underlying conflict in 1763 was the obvious one of a board member representing clients before his own board: under Rule 1.7, Rule 1.11(a), and Rule 8.4(d), a lawyer who sits on a board may never represent a client before that board, because the lawyer holds both public duties and a unique position of influence for the client.

The committee concludes those rules do not create the same conflict in the scenarios presented, because no firm member serves on any of the local bodies in question. When a firm lawyer seeks action from a local body for a client, he is not asking the very body to which a firm member belongs. The committee declines to extend LEO 1763 to these activities, conditioned on the legislator's affirmative duty under Rules 1.11 and 8.4 to refrain from using his position to influence any tribunal for a client and from implying that such influence is available.

Currency note

This opinion was issued in 2003. Virginia's conflict and public-officer rules may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, a legislator-lawyer and his firm are not categorically barred from representing private clients before local governing boards where no firm member sits on the body addressed; the per se bar of LEO 1763 turns on a firm member's membership on the very board. The legislator's continuing obligation under Rules 1.11(a) and 8.4(d) is to refrain from using or implying use of his office to influence those local bodies.

Common questions

Q: Can a state legislator's law firm represent clients before a local zoning board?

A: Yes, under this opinion, if no member of the firm sits on that board. The committee declines to extend the per se conflict of LEO 1763, which applied where a firm member served on the board appeared before.

Q: What made LEO 1763 different?

A: In LEO 1763 a firm member sat on the very board his partners appeared before. The committee treats a board member representing clients before his own board as a per se conflict under Rules 1.7, 1.11(a), and 8.4(d) that imputes to the whole firm and cannot be cured by recusal.

Q: What limits still apply to the legislator?

A: Rules 1.11(a) and 8.4(d). The legislator must not use his public position to the advantage of a client before any tribunal and must not state or imply an ability to improperly influence a government body or official.

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7; a conflict where the lawyer's own interests or duties may materially limit the representation), Rule 1.11 (Model Rule 1.11; a public officer must not use the position to a client's advantage, and Comment 1's caution against activities conflicting with official duties), and Rule 8.4(d) (Model Rule 8.4; prohibiting a lawyer from stating or implying an ability to improperly influence a government agency or official). Imputation is governed by Rule 1.10, applied through LEO 1763.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Virginia Rule 1.7 (personal-interest conflict)
• Model Rule 1.11 / Virginia Rule 1.11(a) and Comment 1 (public officer; use of position)
• Model Rule 8.4 / Virginia Rule 8.4(d) (implying improper influence)
• Model Rule 1.10 / Virginia Rule 1.10 (imputed disqualification, applied via LEO 1763)

Other opinions cited:

• Virginia LEO 1763 and LEO 1718: firm member sitting on a board may not appear, and partners' appearances are imputed and not cured by recusal.

See also

• VA LEO 1785: County Attorney Conflict vs BZA
• VA LEO 1836: City Attorney and Multiple Constituents
• VA LEO 1819: Lawyer Working as a Lobbyist

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1773.pdf

Original opinion text

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

Committee Opinion
February 10, 2003
LEGAL ETHICS OPINION 1773

WHETHER AN ATTORNEY WHO IS IN THE
GENERAL ASSEMBLY CAN REPRESENT
PRIVATE PARTIES BEFORE LOCAL
GOVERNING BOARDS.

You have presented a hypothetical involving the private law practice of the firm of a member
of the General Assembly. Specifically, members of the firm represent private clients who
regularly appear before local Boards of Supervisors, Town Councils, and Boards of Zoning
appeals in connection with legislative matters including re-zoning applications, special exception
applications, zoning variances, and zoning determination appeals. Also, members of the firm
work with the staff of a locality to process ministerial applications, such as site and subdivision
plans.
Generally, you raise questions of whether these activities are in ethical conflict with the
election of a firm member to the General Assembly. Specifically, you ask whether the attorney,
who is a member of the General Assembly, or any member of his firm, may represent clients
before any of these local bodies.
Your hypothetical raises the underlying issue of whether membership in the General Assembly
combined with representation of private clients in local government matters triggers an
impermissible conflict of interest under the Rules of Professional Conduct. Conflicts faced by
firms with legislator members was addressed recently in LEO 1763, which was, in effect, a
reconsideration of LEO 1718, which had been decided under the former Code of Professional
Responsibility. In LEO 1763, the presenting scenario was that of members of a local government
board member’s law firm representing clients before that same board. In LEO 1763, this
committee reiterated its conclusions from 1718, namely, that an impermissible conflict of interest
would be triggered by the partner’s representation before the board and that the conflict could not
be “cured” by recusal of the attorney/board member from the particular matter. Thus, you ask
whether that same conclusion must be drawn for the scenarios you present involving various
local government entities, where no attorney in the firm sits on such local government bodies.
A careful review of LEO 1763 reveals that the focus of the committee’s analysis was whether
the conflict of interest created by an attorney appearing before his own board should be imputed
so as to prevent his partners from appearing before his board, and, if so, whether the resulting
conflict could be “cured” by the attorney/board member’s recusal from the particular matter. The
committee concluded first that the conflict must be imputed to all members of the firm and
further that recusal would not cure the problem as recusal would violate the attorney/board
member’s obligations to his constituents. Rule 1.11, Comment 1 says, in pertinent part, “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, the opinion concludes that as recusal is not an effective conflicts cure, no
partner of a board member may represent clients before the board.
What the analysis of LEO 1763 does not focus on is the nature of the basic underlying conflict
of interest. In that opinion, the basic conflict (that is then imputed) was that a board member

Committee Opinion
February 10, 2003
may not represent clients before his own board. That such representation would trigger an
impermissible conflict is, in effect, so obvious as to be a given throughout the opinion’s
discussion of the conflict’s imputation and cure. It is of guidance for your present request to step
back and address the source of that underlying conflict in LEO 1763. Rule 1.7 prohibits
representing a client where that representation may be materially limited by the lawyer’s own
interests, unless he reasonably believes that the representation will not be adversely affected (and
the client consents). In addition, Rule 1.11(a) prohibits an attorney who is a public official to use
that position to the advantage of his client. Relatedly, Rule 8.4 (d) prohibits an attorney from
stating or implying the ability to improperly influence a government entity or official. Those
rules, taken together, render it impermissible for a lawyer to ever represent a client before a board
upon which the attorney sits; such a representation would be problematic in that the attorney’s
role as a board member creates both general duties to the public and a unique position of
influence for his client. Thus, the committee opines that such representation is per se
impermissible and, as outlined in LEO 1763, is imputed to all other members of the firm.
Do those same rules also create an impermissible conflict in your outlined scenarios? The
committee concludes that they do not. No member of the firm serves on any of the local bodies
of the localities in question. Thus, when a firm member seeks action on behalf of one of those
bodies for a client, he is not seeking action from the very body to which a firm member belongs.
So long as the attorneys do nothing in violation of the influence provisions of Rules 1.11 and 8.4,
outlined above, this committee does not deem them prohibited from entering into the activities
involving various local bodies identified in your request. As outlined in those rules, the
legislator has an affirmative duty to refrain from using his position to influence any tribunal for
the benefit of this clients, and to refrain from implying that such influence is available. This
committee declines to extend the analysis recently set out in LEO 1763 to any of the activities
outlined in your request.
This opinion is advisory only, based only on the facts you presented and not binding on any
court or tribunal.
Committee Opinion
February 10, 2003