Can a lawyer who sits on a town council represent a client challenging the constitutionality of an ordinance the lawyer voted to adopt?

Plain-English summary

The opinion addresses a lawyer who serves on a town's governing body and voted to adopt a state statute into the locality's Traffic Code, and who has since been retained by a defendant challenging the constitutionality of that same provision. The committee explains that the problem is not the decision to represent the client but the chosen defense, attacking the ordinance's constitutionality; if the lawyer cannot competently and diligently represent the client without challenging the ordinance, it would be unethical to undertake the representation or to have the client forgo the challenge (citing LEO 1699). The committee identifies three conflict dimensions: the client's interest, the governing body's interest, and the lawyer's personal interest, analyzed under Rules 1.11(b) and 1.7(a)(2).

Under Rule 1.11(b), which bars a lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public officer unless both the client and the agency consent, the committee concludes the lawyer participated personally and substantially in adopting the ordinance. It finds no per se prohibition, but the existence of a current conflict means the lawyer must obtain the consent of both the private client and the government agency after full disclosure; whether the agency will consent depends on factors outside the committee's purview. The committee also points to the State and Local Government Conflict of Interests Act.

Under Rule 1.7(a)(2), the committee concludes the lawyer must consider his own personal interest, with no blanket prohibition or approval and a case-by-case determination required. The lawyer may proceed only with full disclosure and client consent under Rule 1.7(b) if he reasonably believes he can provide competent and diligent representation. The committee observes that if the lawyer went on record supporting the very ordinance he seeks to challenge, that inconsistent position could undermine his credibility and weaken his effectiveness, and he may then be unable to satisfy Rule 1.7(b) and continue.

In practice

Under the Virginia rules as they stood when the opinion issued, the committee holds that a lawyer who sits on a town council and voted to adopt an ordinance is not per se barred from representing a client challenging it, but that, having participated personally and substantially in the adoption, the lawyer must obtain the consent of both the private client and the government agency under Rule 1.11(b). The opinion holds that the lawyer must also evaluate his own personal interest under Rule 1.7(a)(2) on a case-by-case basis and may proceed only with client consent under Rule 1.7(b) where he reasonably believes he can give competent and diligent representation. It holds that if the lawyer publicly supported the ordinance, the resulting inconsistency may prevent him from meeting Rule 1.7(b) and continuing the representation, and that the State and Local Government Conflict of Interests Act should also be considered.

Common questions

Q: Is a council member automatically barred from challenging an ordinance he voted for?

A: No. The opinion concludes there is no per se prohibition, but because the lawyer participated personally and substantially in adopting the ordinance, Rule 1.11(b) requires the consent of both the client and the government agency.

Q: Whose consent is needed under Rule 1.11(b)?

A: Both the private client's and the government agency's. The opinion concludes the lawyer must obtain consent after full disclosure; whether the agency will consent depends on factors outside the committee's purview.

Q: How does the lawyer's own interest factor in?

A: Under Rule 1.7(a)(2) the lawyer must assess whether his role on the council creates a significant risk that the representation will be materially limited; the opinion concludes this is case-by-case and that the lawyer may continue only with client consent under Rule 1.7(b) if he reasonably believes he can represent the client competently and diligently.

Q: What if the lawyer publicly supported the ordinance?

A: The opinion concludes that going on record in support of the ordinance he now challenges could undermine his credibility and weaken his effectiveness as an advocate, and that under those circumstances he may be unable to satisfy Rule 1.7(b) and continue the representation.

Background and rules framework

The opinion interprets Rule 1.11(b) of the Virginia Rules of Professional Conduct (Model Rule 1.11), which bars a lawyer from representing a private client in a matter in which the lawyer participated personally and substantially as a public officer unless the client and the agency consent, and Rule 1.7(a)(2) and (b) (Model Rule 1.7) on material-limitation conflicts and their cure by informed consent. It also references the State and Local Government Conflict of Interests Act (Va. Code §2.2-3100 et seq.) and prior opinions LEOs 683 and 1699.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Va. Rule 1.11(b) (former government officer; consent of client and agency)
• Model Rule 1.7 / Va. Rule 1.7(a)(2), (b) (material-limitation conflict; informed-consent cure)

Statutes:

• Va. Code §2.2-3100 et seq. (State and Local Government Conflict of Interests Act)

Other opinions cited:

• Va. LEO 683: a city councilman may represent a client charged under an ordinance where other rules are met
• Va. LEO 1699: former assistant city attorney barred from attacking her own ordinance work product

See also

• VSB Ethics Op. 1875: Furloughed Government Lawyer Conflicts
• VSB Ethics Op. 1867: Release-Dismissal Agreements and Prosecutors

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1841.pdf

Original opinion text

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

Committee Opinion
June 27, 2008
Committee Revised
March 17, 2011
LEGAL ETHICS OPINION 1841

CAN A LAWYER WHO IS A MEMBER
OF THE TOWN’S GOVERNING BODY
REPRESENT A CLIENT CHALLENGING
THE CONSTITUTIONALITY OF AN
ORDINANCE THE LAWYER VOTED TO
ADOPT?

This hypothetical involves a lawyer who is a member of a local town’s governing body.
The locality recently adopted a Virginia statute as local law and incorporated it into the
locality’s Traffic Code, which they routinely do when new statutes are adopted annually
by the General Assembly. Normally, these statute revisions are adopted by the town’s
governing body in toto and not individually screened or adopted piecemeal. The lawyer,
as a member of the body, voted in favor of the adoption.
The lawyer has now been retained by a defendant charged under this same provision of
the locality’s Traffic Code who is challenging the constitutionality of this provision. Is it
unethical for the lawyer to continue this representation when it involves a direct attack on
the locality’s Traffic Code?
In this hypothetical the member of town council determined that his client’s defense
should be based on the constitutionality of the locality’s Traffic Code. It is this defense,
and not the decision to represent the client, that is problematic. If the lawyer cannot
provide competent and diligent representation without challenging the ordinance’s
constitutionality, it is unethical for him to agree to represent the client, or have the client
agree to forgo the challenge. 1 See also LEO 1699 in which the Committee opined that it
would be unethical for a former Assistant City Attorney to represent a private client
challenging an ordinance drafted by the attorney in her capacity as an Assistant City
Attorney in part because she would be put in the position of attacking her own work
product and legal advice. 2
There are three aspects to this conflicts analysis based upon application of the Rules of
Professional Conduct: 1) the interest of the client; 2) the interest of the governing body;
and 3) the personal interest of the lawyer. These conflicts are addressed through
application of Rule 1.11(b) and Rule 1.7(a)(2). If the lawyer cannot resolve these
conflicts then he should decline the representation.

1

Cmt. [7], Rule 1.2 (agreement limiting scope of representation must comply with lawyer’s other duties
under the Rules of Professional Conduct, i.e., competence and diligence); Rule 1.7 (a)(2)(material
limitation). See also Cmt. [19], Rule 1.7 (when a disinterested lawyer would conclude that the client
should not consent to a conflicted representation it is improper for the lawyer to seek the client’s consent).

2

Nothing in this opinion overrules LEO 683(attorney who holds office as city councilman may represent
client charged with violation of an ordinance where doing so complies with other rules).

Committee Opinion
June 27, 2008
Committee Revised
March 17, 2011
In addition, consideration should be given to the State and Local Government Conflict
of Interests Act 3 that provides standards of conduct for officers and employees of the
Commonwealth.
The Committee’s analysis starts with the application of Rule 1.11 (b), 4 which prohibits
a lawyer from representing a private client in a matter in which he has participated
“personally and substantially” as a public official unless both the client and the agency
consent. The concern here is misuse of the public office for the benefit of the private
client. Given the facts in this hypothetical, the Committee is of the opinion that this
lawyer participated “personally and substantially” in the adoption of this town ordinance.
Secondly, in the current hypothetical the Committee finds that there is no per se
prohibition under Rule 1.11(b) against the lawyer representing a client challenging a
town ordinance. Under the rule, where a current conflict exists, the lawyer is required to
obtain the consent of both the private client and the government agency, after full
disclosure and consultation regarding the potential conflict. Whether or not the lawyer is
successful in acquiring such consent from the government agency depends upon many
factors outside the purview of this Committee.
Finally, the Committee is of the opinion that the lawyer needs to consider his own
personal interests, as required by Rule 1.7(a)(2). Specifically, under Rule 1.7(a)(2), a
conflict of interest exists whenever, “there is significant risk that the representation of one
or more clients will be materially limited by … a third person or by a personal interest of
the lawyer.” Rule 1.7(a) creates neither a blanket prohibition nor a blanket approval for
this type of scenario. A case-by-case determination is necessary. Rule 1.7(b) 5 provides
3
4

See § 2.2-3100 et seq.
Rule 1.11(b) states as follows:
Except as law may otherwise expressly permit, a lawyer shall not represent a private
client in connection with a matter in which the lawyer participated personally and
substantially as a public officer or employee, unless the private client and the
appropriate government agency consent after consultation. No lawyer in a firm with
which that lawyer is associated may knowingly undertake or continue representation
in such a matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is
apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to enable
it to ascertain compliance with the provisions of this Rule.

5

Rule 1.7(b) states as follows:
Notwithstanding the existence of a concurrent conflict of interest under paragraph (a),
a lawyer may represent a client if each affected client consents after consultation, and:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;

Committee Opinion
June 27, 2008
Committee Revised
March 17, 2011
the circumstances under which a lawyer may continue the representation of a client
despite conflicts that arise under Rule 1.7(a).
In this hypothetical, the lawyer needs to consider the effect of his public service on
such representations and determine whether his role on the town’s governing body
creates a “significant risk that the representation … will be materially limited by the
lawyer’s responsibilities to a third person or by a personal interest of the lawyer.” Even
if the lawyer has responsibilities to a third party or personal interests that may materially
limit his responsibilities to the client, the lawyer may continue the representation with
complete disclosure to the client and with client consent if the lawyer reasonably believes
that he can provide competent and diligent representation. Rule 1.7(b).
One way the representation of the criminal client might be materially limited is if the
lawyer, as a member of the public body, went on record as supporting the very town
ordinance he seeks to challenge. This inconsistent position could undermine the lawyer’s
credibility and weaken his effectiveness as an advocate. Under those circumstances, the
lawyer may not be able to meet the requirement of Rule 1.7(b) and continue the
representation.
This opinion is advisory only, and not binding on any court or tribunal.

(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against
another client represented by the lawyer in the same litigation or other proceeding
before a tribunal; and
(4) the consent from the client is memorialized in writing.