If a lawyer also serves on a city council, can the lawyer (or the lawyer's firm) represent private clients before that council or the city's boards and commissions?

Plain-English summary

Opinion E-89-7 asked whether a lawyer who is a member of a city council may represent clients before the council or before any of the city's boards, commissions, or subunits, and whether the lawyer's partners or associates may provide such representation. As to the lawyer-councilmember personally, the committee began with SCR 20:1.11(a), which provides that except as law may 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 appropriate government agency consents after consultation. For matters in which the lawyer did not and will not participate personally and substantially, the committee noted the rules neither expressly permit nor prohibit related representation, and quoted the Comment to SCR 20:1.11 that a government lawyer remains subject to Rules 1.7 and 1.9 and to conflict-of-interest statutes and regulations that may limit the agency's ability to consent.

The committee concluded that where the lawyer's past and potential future official contact with a matter was and is likely to be nonexistent or insubstantial, and where the city council grants informed consent upon full disclosure, the lawyer may personally provide the representation, provided the lawyer also complies with SCR 20:1.7(b) and SCR 20:8.4(d). It stated that it did not intend to encourage or discourage such representation, and that whether the representation is consistent with the lawyer's public trust must be evaluated case by case by the lawyers and governmental units involved, not by the committee.

As to partners and associates, the committee explained that when the lawyer-councilmember's involvement as a public officer was personal and substantial, or when the lawyer possesses confidential government information that could be used adversely, SCR 20:1.11 sets forth the conditions for the firm to provide the representation, including screening the lawyer and apportioning no part of the fee to that lawyer. For the situations the rules do not specifically address (where the councilmember could debate and vote on a matter the firm handles, or could influence the outcome because of the office), the committee concluded guidance may be drawn from SCR 20:1.7(b), 20:1.10(a) and (d), and 20:8.4(d), and that it would be prudent, though perhaps not clearly required, for the firm to observe the disclosure and written-consent requirements of SCR 20:1.7(b) as to both the private client and the appropriate governmental entity. It added that a general disclosure and consent might suffice for frequent and routine appearances, while matters involving substantial public interests may more clearly require case-by-case disclosure and consent, and that these procedures are probably best left to the government agencies involved so long as they do not conflict with the Supreme Court's standards of conduct.

Currency note

This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). SCR 20:1.11 (former and current government officers) and the conflict and imputation rules the opinion relies on were later revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer who serves on a city council appear before that council for a private client?

A: Per the opinion, only where the lawyer's official involvement in the matter was and will be insubstantial and the council gives informed consent on full disclosure, and the lawyer also satisfies SCR 20:1.7(b) and 20:8.4(d).

Q: What if the lawyer handled the matter as a public officer?

A: The committee read SCR 20:1.11(a) to bar the lawyer from then representing a private client in that matter unless the appropriate government agency consents after consultation.

Q: Can the lawyer's partners or associates take the representation instead?

A: Where the lawyer's official role was substantial or involved confidential government information, the committee said SCR 20:1.11 allows the firm to proceed only with screening and no fee apportionment to that lawyer; in vote-or-influence situations it called following SCR 20:1.7(b)'s disclosure and written consent prudent.

Background and rules framework

The opinion interpreted SCR 20:1.11 / Model Rule 1.11 (special conflicts for former and current government officers and employees) together with SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts), SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts), and SCR 20:8.4(d) / Model Rule 8.4 (conduct prejudicial to the administration of justice), as applied to a lawyer holding municipal office.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:1.11 / Model Rule 1.11 (government officers and employees)
• Wis. SCR 20:1.7 / Model Rule 1.7 (conflicts of interest); SCR 20:1.10 / Model Rule 1.10 (imputation)
• Wis. SCR 20:8.4(d) / Model Rule 8.4 (professional misconduct)

Other opinions cited:

• Wisconsin Formal Ops. E-75-25, E-76-2, E-86-12, E-86-14
• ABA Informal Op. 1182 (Dec. 5, 1971)

See also

• WI Ethics Op. E-89-15: City Attorney Advisor and Advocate
• WI Ethics Op. E-90-5: City Attorney as Defense Counsel
• WI Ethics Op. E-92-5: Corporation Counsel in Support Cases

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-89-7.pdf