Can a county attorney sue the Board of Zoning Appeals on behalf of the Board of Supervisors when the same attorney has advised the BZA on the very variance at issue?

Plain-English summary

A part-time county attorney was instructed by the Board of Supervisors to file a circuit-court petition challenging a variance the Board of Zoning Appeals had granted a corporation, naming both the BZA and the corporation as respondents. The same county attorney advises the BZA from time to time and had specifically advised it on the public notice for this variance; the BZA considers him its attorney and asked him for counsel in the suit. He took the position that the BZA was not a "real" party and needed no counsel. The committee was asked whether he has a conflict, whether consent could cure it, and whether opposing counsel must report him.

The committee distinguishes its earlier LEO 1209 (no conflict where the county attorney had not advised the BZA on the permit and the BZA was not named) and analyzes the conflict under both Rule 1.7 (current clients) and Rule 1.9 (former clients), because whether an attorney-client relationship still exists is a fact question outside its purview. It notes Rules 1.4 and 1.16 place the burden of clarity about when representation ends on the lawyer, so a client's reasonable belief that the representation continues can prevent treating it as "former." If the BZA is a former client, Rule 1.9 bars representation adverse to it in a substantially related matter; the committee opines the public notice is substantially related to the variance itself, so suing the BZA over that variance is a conflict. If the BZA is a current client, Rule 1.7 bars representing opposing parties in the same litigation, with no exception (Comment 7), and the committee rejects the "not a real party" argument because naming the BZA made it a party.

On curability, the committee explains a Rule 1.9 former-client conflict can be cured by the BZA's consent, but a Rule 1.7 conflict arising from adversity between current clients in litigation cannot, because consent only works where the lawyer reasonably believes the representation will not adversely affect the other client, which Comment 7 says is never the case in litigation. On reporting, the committee points to Rule 8.3(a): the duty arises where the information is reliable and the misconduct raises a substantial question as to honesty, trustworthiness, or fitness, a fact-specific judgment (LEO 1635); once a duty to report is found, the report must be made without unnecessary delay (LEO 1635, quoting LEO 1545). The opinion overrules LEO 1209 to any extent inconsistent.

Currency note

This opinion was issued in 2003. Virginia's conflict and reporting rules and later opinions may have refined the analysis. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that a government lawyer who has advised one public body cannot litigate against that body on a substantially related matter for another public client; under Rule 1.9 the conflict is consentable by the former client, but under Rule 1.7 a litigation conflict between current clients is not curable by consent. It also holds that an opposing lawyer's duty to report under Rule 8.3, once triggered by reliable information of a substantial-question violation, must be acted on without unnecessary delay rather than deferred to the end of the case.

Common questions

Q: Can a county attorney sue the zoning board for the Board of Supervisors after advising the board on the same variance?

A: No. The opinion finds a conflict under Rule 1.9 if the BZA is a former client (the public notice is substantially related to the variance) and under Rule 1.7 if it is a current client (no representing opposing parties in litigation).

Q: Does it matter that the lawyer says the zoning board is not a "real" party?

A: No. The committee rejects that argument; Rule 1.9 has no notion of parties being less real than others, and under Rule 1.7 naming the BZA in the petition made it a party and triggered the conflict.

Q: Can the parties consent to cure the conflict?

A: Only a former-client (Rule 1.9) conflict is curable by the BZA's consent. A current-client litigation conflict under Rule 1.7 is not curable, because consent cannot apply where the lawyer represents opposing parties in litigation.

Q: Must opposing counsel report the conflict, and when?

A: Rule 8.3(a) requires a report only where the information is reliable and the misconduct raises a substantial question as to honesty, trustworthiness, or fitness (a fact-specific call, see LEO 1635); if a duty to report exists, it must be acted on without unnecessary delay.

Background and rules framework

The opinion interprets Rule 1.7 (Model Rule 1.7; current-client conflicts, Comment 7 on opposing parties in litigation), Rule 1.9 (Model Rule 1.9; duties to former clients, substantial-relationship test), and Rule 8.3 (Model Rule 8.3; reporting professional misconduct). It also references Rules 1.4 and 1.16 on the lawyer's duty to make the beginning and end of a representation clear.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Virginia Rule 1.7 and Comment 7 (current-client conflicts in litigation)
• Model Rule 1.9 / Virginia Rule 1.9 (duties to former clients; substantial relationship)
• Model Rule 8.3 / Virginia Rule 8.3(a) (reporting misconduct)
• Model Rules 1.4 and 1.16 / Virginia Rules 1.4 and 1.16 (clarity on the scope and end of representation)

Statutes:

• Virginia Code Section 15.2-2314 (petition to circuit court challenging a BZA decision)

Other opinions cited:

• Virginia LEOs 1209 (overruled to the extent inconsistent), 1635, 1545 (reporting misconduct without unnecessary delay)

See also

• VA LEO 1799: Prosecutor's Real-Estate Business Conflict With Defense Counsel
• VA LEO 1840: Duty to Report a Settlement Company's Fraud
• VA LEO 1810: Guardian Ad Litem Conflict Through a Former Partner

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1785.pdf

Original opinion text

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

Committee Opinion
November 14, 2003
LEGAL ETHICS OPINON 1785

CONFLICT – CAN A COUNTY’S ATTORNEY
REPRESENT
A
COUNTY
BOARD
OF
SUPERVISORS IN A SUIT AGAINST THE
BOARD OF ZONING APPEALS (BZA) WHEN
THE COUNTY’S ATTORNEY ADVISES IN
MATTERS BEFORE IT?

You have presented a hypothetical in which a corporation obtains a variance from the
Board of Zoning Appeals (BZA). The Board of Supervisors subsequently voted to
challenge the decision of the BZA and instructed the county’s part-time County Attorney
to file a petition with the county’s Circuit Court, pursuant to Va. Code §15.2-2314 as
counsel for the Board of Supervisors. The petition names both the BZA and the
corporation as respondents.
The general duties of the County Attorney include providing legal counsel to the Board
of Supervisors and to the various officials and agencies of or serving the county
government. As part of those duties, the County Attorney on an occasional basis has
rendered legal advice to the BZA when asked. The BZA considers the County Attorney to
be its attorney. The BZA is not appointed by the Board of Supervisors; the Circuit Court
appoints the members of the BZA. The Board of Supervisors has the power to enact
zoning ordinances. The BZA has the power to grant variances to those ordinances. If the
Board of Supervisors disagrees with the BZA’s decision to grant a particular variance, the
Board of Supervisors can challenge that BZA action by petitioning the Circuit Court.
The BZA consulted the County Attorney for legal advice regarding the public notice for
this particular zoning variance. The basis of the petition’s challenge of the variance
involves some other aspect of the variance or its issuance.
The BZA has requested of the County Attorney that it needs counsel in this lawsuit
regarding the corporation’s variance. The corporation’s attorney has informed the County
Attorney that the corporation’s attorney thinks it is a conflict of interest for the County
Attorney to continue to represent the Board of Supervisors in this matter. The County
Attorney maintains he has no conflict as the BZA is not a “real” party to the litigation, that
the only “real” party is the corporation. On the same ground, the County Attorney
maintains that the BZA does not need counsel in the matter.
You have asked the committee to opine, under the facts of this inquiry, the following
questions:
1) whether it is a conflict of interest for the County Attorney to serve as counsel
for the Board of Supervisors in that board’s petition filed against the BZA when
that attorney regularly advises the BZA on matters as needed and specifically
advised the BZA on the public notice for this variance;

Committee Opinion
November 14, 2003
2) if the County Attorney does have a conflict of interest, would consent from the
BZA, or anything else, “cure” the conflict, and
3) if the County Attorney does have a conflict of interest but refuses to withdraw
from representation of the Board of Supervisors, would the corporation’s attorney
have a duty to report this conduct to the Virginia State Bar, and if so, must the
complaint be filed immediately rather than at the end of the proceedings.
This committee was previously faced with a similar situation, addressed in LEO 1209.
That opinion involved a county attorney filing a petition for a Board of Supervisors to
challenge that BZA’s grant of a special use permit. In that opinion, the committee
concluded that the attorney had no conflict of interest.
At first blush, LEO 1209 would appear dispositive of the present inquiry. However, the
hypothetical now before the committee contains two facts not stated in the prior opinion.
Whereas in LEO 1209, the County Attorney did not advise the BZA on that particular
permit, the present County Attorney advised the BZA on the public notice for this
particular variance. Also, whereas in LEO 1209 no mention is made of the petition naming
the BZA as a party, the petition in the present hypothetical was filed against the BZA, by
name. These two distinguishing facts must be considered in determining whether or not a
conflict of interest is triggered in this hypothetical.
The pertinent rules for analysis of the conflicts consequences of those facts are Rule 1.7
and Rule 1.9. Rule 1.7 addresses conflicts between two current clients, while Rule 1.9
addresses conflicts between a former client and a current client. The facts of this
hypothetical suggest in one instance that the attorney advises the BZA from “time to time,”
which would imply that if no such advising is currently being provided, than the BZA is a
former client. However, the facts also state the BZA thinks of the County Attorney as its
attorney, which would imply that the BZA is a current client of the County Attorney.
Whether an attorney/client relationship actually exists at the time of the petition is a factual
issue, determination of which is outside the purview of this committee. Accordingly, this
opinion will consider the potential conflicts under either scenario, but notes that an
attorney’s duty of communication under Rule 1.4 and duty to protect a client’s interests
upon termination, under Rule 1.16, combine to place the onus of clarity regarding the
beginning and the end of the representation on the attorney and not the client. If a client’s
belief that a representation is on-going is reasonable under the circumstances, and the
attorney does nothing to indicate that the relationship has terminated, an attorney may not
be able to treat that client as a “former” client for conflicts of interest analysis.
If in fact this County Attorney previously advised the BZA on various matters but
currently does not represent the BZA, the BZA would be a former client for purposes of
Rule 1.9. That rule provides that an attorney may not represent a current client in a matter
adverse to a former client in a matter substantially related to the prior representation. Here,
the current and prior matters in question are the petition challenging the variance and the
advice to the BZA regarding the public notice for that variance. As noted in the facts set
out above, the notice is not the ground stated in the petition for this challenge, but this

Committee Opinion
November 14, 2003
corporation’s variance was the subject of each representation. This committee opines that
the notice for the variance is substantially related to the variance itself. By filing a petition
on behalf of the Board of Supervisors against the BZA as defendant involving the same
variance discussed with the BZA in the past, this attorney has a conflict of interest.
It is the position of the County Attorney that despite filing a petition against the BZA,
that the BZA is not a “real” party for conflicts of interest purposes, that the only “real”
party is the BZA’s co-defendant, the corporation. This committee sees no such wiggle
room in Rule 1.9; when an attorney files a lawsuit on behalf of one client naming a former
client as the adverse party, that counts as “a matter adverse to” that former client. The rule
contains no notion of some parties being less real than other parties. The committee finds
the County Attorney’s position untenable under these Rules. Under an assumption that the
BZA is a former client of the attorney, he has a conflict of interest under Rule 1.9.
Alternatively, if the County Attorney’s representation of the BZA is on-going, with no
termination occurring between various instances of advice, then the BZA is a current client
and Rule 1.7 would govern this conflicts question. Rule 1.7 would find a conflict of
interest whenever one attorney represents adverse parties in the same litigation; there are
no exceptions. As discussed above, the committee is unpersuaded by the County
Attorney’s argument that he has no conflict of interest because the BZA is not a “real”
party. Comment Seven to Rule 1.7 specifically states that the rule “prohibits
representation of opposing parties in litigation.” By naming the BZA in the petition, the
County Attorney made the BZA a party and triggered this conflict.
Under the above analysis, the committee concludes that regardless of whether the BZA is
a former or a current client, the County Attorney has a conflict of interest in filing this
petition against the BZA. Indicative of the nature of that conflict is that the BZA went to
him to request representation in the lawsuit, and it was he who evaluated their legal need
and determined that, in his view, the BZA needs no counsel. The mere provision of that
advice, which is legal advice, triggered a conflict of interest for this attorney as his client,
the Board of Supervisors, would seem to have an interest in whether or not a party it is
suing has counsel in the matter.
Your second inquiry is whether a conflict of interest of this sort is “curable.” The
conflict of interest in this situation was analyzed under two alternatives. If the conflict
stems from adversity to a former client under Rule 1.9, then consent from the former client
(here, the BZA) would “cure” the conflict and allow the County Attorney to represent the
Board of Supervisors. In contrast, if the source of this conflict of interest is Rule 1.7’s
provisions regarding adversity between current clients, consent will be ineffective.
Consent may only cure such conflicts where “the lawyer reasonably believes the
representation will not adversely affect the relationship with the other client.” As outlined
above, Comment Seven to that rule establishes that such is never the case when the
adversity is in the context of litigation. If in fact the BZA remains a current client of the
County Attorney, his conflict of interest would not be “curable” by consent of the parties.

Committee Opinion
November 14, 2003
Your third inquiry with respect to this hypothetical is whether the corporation’s attorney
would have a duty to file a complaint against this County Attorney and, if so, whether he
must file that complaint immediately or, instead, after the end of this litigation. As to
whether there is a duty to report this misconduct, the corporation’s attorney should look to
Rule 8.3(a), which states that the duty to report is triggered where the information
regarding the misconduct is “reliable” and where the nature of the misconduct “raises a
substantial question as to that lawyer’s honesty, trustworthiness or fitness to practice law.”
That determination is a fact-specific judgment call, which would require consideration of
more in depth facts than are provided in this hypothetical. The committee suggests LEO
1635 as a useful source of guidance in that determination; that opinion reviews numerous
factors for consideration of the matter. As to whether the corporation’s attorney, were he
to determine he did have a duty to report the misconduct, would need to file the complaint
immediately or whether he could wait until the end of the litigation, this committee has
repeatedly maintained that upon determining a duty to report, “the attorney is obligated to
report such misconduct without any unnecessary delay.” LEO 1635, quoting LEO 1545.
To the extent that any portion of this opinion is inconsistent with LEO 1209, that opinion
is overruled.
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.
Committee Opinion
November 14, 2003