NEW YORK STATE BAR ASSOCIATIONCommittee on
Opinion #468 - 05/18/1977
Topic: Conflict of Interests; Town Attorney; Village Attorney
Digest: Not improper per se for lawyer to be both attorney for town
and village located within town
Code: EC 5-15
May a lawyer at the same time be both town attorney and attorney for
a village located within the town?
It is not per se improper for a lawyer to be both town attorney and
attorney for a village located within the town since there is no
inherent conflict between the two positions.
Nevertheless, where the circumstances are such that the two positions
may foreseeably conflict with one another on specific matters, the
lawyer may yet be required to refrain from undertaking the
representation of both municipalities. In this connection, EC 5-15
explains in relevant part:
"If a lawyer is requested to undertake . . . representation of
multiple clients having potentially differing interests, he must weigh
carefully the possibility that his judgment may be impaired or his
loyalty divided if he accepts . . . the employment. He should resolve
all doubts against the propriety of the representation. A lawyer should
never represent in litigation multiple clients with differing interests;
and there are few situations in which he would be justified in
representing in litigation multiple clients with potentially differing
interests. *** On the other hand, there are many instances in which a
lawyer may properly serve multiple clients having potentially differing
interests in matters not involving litigation. If the interests vary
only slightly, it is generally likely that the lawyer will not be
subjected to an adverse influence and that he can retain his independent
judgment on behalf of each client; and if the interests become
differing, withdrawal is less likely to have a disruptive effect upon
the causes of his clients."
Consistent with the principles set forth in EC 5-15, we believe that
a substantial likelihood of litigation between the two municipalities
should preclude acceptance of the proposed dual role. See, Ore. Op. No.
101 (1961), indexed at 3937, 0. Maru, Digest of Bar Association Ethics
Opinions (1970), hereinafter "Maru's Digest.” If litigation is
unlikely, but there still exists the possibility of negotiations between
the two which would conceivably serve to benefit one at the
other’s expense, the lawyer should similarly reject the offer to
serve as attorney for both municipalities. See, N.J. Op. 29 (undated),
indexed Maru's Digest at 1515; Wash. Op. 104 (1962), indexed Maru's
Digest at 4622.
The ability of the lawyer to withdraw from the representation of one
or both of the municipalities on specific matters, after first accepting
a dual role, is of little consequence to the present issue. If there is
a substantial likelihood that the lawyer will in fact be required to
withdraw, he should avoid the problem altogether by accepting only one
of the two positions.
Where it appears that the interests of the two municipalities will
vary only slightly, again consistent with the principles set forth in EC
5-15, the lawyer may properly undertake to represent both. See, ABA Inf.