State Bar Association
Topic: Conflicts; Town
Digest: A nonconsentable conflict exists when one
member of a law firm acts as Town Attorney on, among other things, planning and
zoning matters and another lawyer in the firm seeks to represent an applicant
before the Town’s planning board.
Rules: 1.0 (f), (r) &
(w), 1.7(a), 1.7(b)
inquiring law firm represents a Town.
One of the firm’s partners serves as Town Attorney, with principal
responsibility for advising the Town Board, while another partner, as Deputy
Town Attorney, chiefly advises the Planning Board and the Zoning Board of
Appeals. Another lawyer affiliated with
the firm (“Lawyer X”) concentrates in, among other things, zoning matters for
inquiry arises out of a plot of land located within the Town in close proximity
to residential properties and a school.
Another government entity (not the Town) once owned the plot but has
since sold it. Upon this sale, the Town
changed the zoning of the plot from Limited Industrial to Residential,
apparently to prevent expanded industrial use of the plot owing to limited
access to the plot. Apart from a railway
line, the only access is over a residential street.
a company (“Owner”) has acquired a portion of the plot and proposes to expand
its existing business there in what the inquirer characterizes as a
“low-intensity” use. The inquiry states
that the Town Board supports this proposal as long as the Owner limits its use
of the plot to the proposed low-intensity use, and therefore intends to return
the plot’s zoning to Limited Industrial.
Lawyer X proposes to represent the Owner in the rezoning application to
the Planning Board.
plot cannot be rezoned unless the Town Board adopts a local law. Following
referral to the County Planning Department for a review and recommendation, the
matter will go to the Town Planning Board for a site plan review. The principal function of a planning board
“is to approve site plans, subdivision plats, and conditionally permitted uses
of property. Town Law §§ 274-a,
276.” N.Y. State 630 (1992). Thus, two of the firm’s lawyers would be
acting for the Town and its Planning Board on the application, while another
lawyer in the same firm would be acting for the Owner as applicant.
inquirer expresses confidence that each lawyer will exercise independent
professional judgment for the lawyer’s clients, and states that each of the
clients is prepared to sign a waiver of any conflict.
a lawyer in a firm act for a private client in applying to the Town Zoning
Board for zoning changes, where other members of the firm currently serve as
Town Attorney and Deputy Town Attorney, with responsibility for advising the
Town on zoning and planning matters, as long as the Town and the private client
each give informed consent?
7. This Committee interprets the New York Rules of
Professional Conduct (the "Rules").
We assume for purposes of this opinion that the proposed representation
would not violate any applicable law governing Town Attorneys and their firms,
including, but not limited to, the Public Officers Law, General Municipal Law,
the Town Law, and the Town’s own Ethics Code.
See, e.g., General Municipal
Law §§ 800 – 812 (Conflicts of Interest of Municipal Officers and
Employees). We do not opine on such
Conflicts of Interest
8. Absent informed consent from each affected client,
Rule 1.7(a) prohibits concurrent representations when a reasonable lawyer would
conclude that either:
1) the representation will involve the lawyer in
representing differing interests; or
2) there is a significant risk that the lawyer's
professional judgment on behalf of a client will be adversely affected by the
lawyer's own financial, business, property or other personal interests. [Emphasis supplied.]
9. With exceptions not applicable here, when lawyers
are associated in a firm, none of them may knowingly represent a client when
any one of them practicing alone would be prohibited from doing so. Rule 1.10(a).
This Rule applies to attorneys employed by the government, whether
full-time or part-time. N.Y. State 1065
(2015) (imputing part-time prosecutor’s conflict to entire firm).
10. “Differing interests” are defined in Rule 1.0(f) to
include “every interest that will adversely affect either the judgment or the
loyalty of a lawyer to a client, whether it be a conflicting, inconsistent,
diverse or other interest.” In N.Y.
State 603 (1989) we declined to apply a per
se rule of disqualification to all instances in which a part-time assistant
city attorney represents a private client before city agencies. Instead, we employed a functional analysis of
the relationship between the proposed representation and the nature of the
lawyer’s public function. Applying that
functional test, we held in Opinion 603 that neither a part-time assistant city
attorney nor any other lawyer in his private law firm could represent clients
before the city agencies with which the attorney was associated. In contrast, N.Y. State 630 (1992)
involved a lawyer who served a town as
special counsel for particular subject matters not involving the town’s
planning or zoning boards. There, we said the
lawyer could represent a private client before the planning and zoning boards
because we were not persuaded that the interests of the
private client were necessarily so conflicting, diverse or inconsistent with
the interests of the town as to adversely affect the lawyer’s judgment or
loyalty to either client, i.e. the lawyer would not per se be representing "differing interests."
in N.Y. State 630 (1992), we cautioned:
A critical factor in our conclusion is that special
counsel ordinarily has limited duties and responsibilities and does not have
the town-wide responsibilities and influence of the town attorney or permanent
member of his or her staff. A different
rule would apply where the nature or volume of legal work handled by special
counsel makes him or her the functional equivalent of a regular, ongoing member
of the town attorney’s staff, or where the subject matter of the particular
representation is of such overriding importance to the town that special
counsel is perceived as having significant influence with the planning or
zoning board of appeals. In those
situations, ... the duty of undivided loyalty and the heightened danger of
compromising confidences and secrets, coupled with the “special sensitivity”
required of lawyers for the public to “take special care not to accept
employment which would tend to undermine public confidence in the integrity and
efficiency of the legal system,” would preclude representation of private
clients before agencies whose legal representation is under the umbrella of the
town attorney’s office. [Citations omitted.]
caveat in N.Y. State 630 teaches that a lawyer who is town attorney may not
concurrently represent private clients whose interests are adverse to the town
– and Rule 1.10(a) imputes the town attorney’s conflicts to his entire
firm. The duty of undivided loyalty, and
the special sensitivity required of lawyers for the public not to accept
employment that would tend to undermine public confidence in the integrity of
the legal system, are paramount. See also Rule 1.11(f)(2) (“A lawyer who
holds public office shall not . . . use the public position to influence, or
attempt to influence, a tribunal to act in favor of . . . a client.” ); Rule
1.11, Cmt.  (Rule 1.11(f) is designed to “prevent the lawyer from exploiting
public office for the advantage of another client”).
630 was decided under the predecessor to the current Rules: DR 5-105(A) of the New York Lawyer’s Code of
Professional Responsibility, which, like Rule 1.7(a), addressed conflicts of
interest in concurrent representations.
The language of the two provisions is not identical but the variances
are immaterial to us here. By either standard, a conflict is present here. One of the
lawyers in the firm represents the planning board and the zoning board of
appeals. An application for a zoning
change is essentially a negotiation between the Town and the Owner whereby each
party seeks to optimize its own interests in the decision of whether to grant a
variance and the terms of such variance.
Moreover, a personal interest conflict is present, since there is a
significant risk that the independent professional judgment of the lawyers
involved will be affected by the personal interest of the attorneys for the
Town in continuing representation with the Town or in the interests of the firm
in remaining in the good graces of the Owner.
to the Prohibition Against Concurrent Representation of Conflicting Interests
that a conflict of interest exists does not end the inquiry. We must also
determine whether the conflict is consentable (i.e., waivable).
have previously held that a governmental entity may consent to a conflict of interest
as long as the conflict is consentable under the Rules. In N.Y. State 629 (1992), for example, we
said that a lawyer in private practice who had previously represented a
governmental entity could later represent a client with interests adverse to
the government, as long as the lawyer obtained the consent of the governmental
entity and (i) the lawyer was reasonably certain both that the entity was
legally authorized to waive the conflict of interest and that all legal
prerequisites to the consent had been satisfied, and (ii) the lawyer reasonably
believed that the process by which the consent was granted was sufficient to
preclude any reasonable perception that the consent was provided in a manner
inconsistent with the public trust. But the conflict in Opinion 629 was a
conflict with the private lawyer’s former client, not with a current client,
and therefore did not raise the question of “differing interests” that arises
when a lawyer or law firm seeks to oppose a current client. Here, the inquiry revolves
around a potential conflict between two current clients of the same law
Opinion 630, we did not expressly address whether informed consent could
mitigate a government lawyer’s conflict because we found no conflict. Here we have found a conflict, so we must
analyze whether consent can cure the conflict.
17. Rule 1.7(b) provides:
Notwithstanding the existence of a concurrent
conflict of interest under Rule 1.7(a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the
lawyer will be able to provide competent and diligent representation to each
(2) the representation is not prohibited by
(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
affected client gives informed consent, confirmed in writing.”
Rule authorizes consent to a conflict by the affected clients, unless one of
the three circumstances in Rule 1.7(b)(1)-(3) applies, in which case the
conflict is nonconsentable. If a conflict is nonconsentable, a lawyer may not
even ask for a client’s consent. As
explained in Comment  to Rule 1.7: “If a lawyer does not reasonably believe
that the conditions set forth in paragraph (b) can be met, the lawyer should
neither ask for the client's consent nor provide representation on the basis of
the client's consent. A client's consent to a nonconsentable conflict is
ineffective.” We must therefore examine the three circumstances in Rule 1.7(b).
first circumstance, which is set out in Rule 1.7(b)(1), is that the lawyer “reasonably believes that the lawyer will be able to provide competent
and diligent representation to each affected client.” This “reasonable” belief standard is not
purely subjective. See Rule 1.0(r) (reasonable belief, when used in reference to a
lawyer, “denotes that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable.”) Objective criteria, including public trust in
the processes of government, are integral to the analysis. This analysis necessarily involves
consideration of the public’s reasonable view of a single law firm handling
both sides of an issue that affects the public in a significant way, such as
allowing industrial use of land abutting residential properties and an
educational institution. Whether or not
the issue provokes widespread controversy, we believe that our Opinion 630
correctly captures the ethical concerns that this inquiry raises. Where lawyers from a single law firm are both
filing an application with a public agency on behalf of a private client and
advising the government agency about the applied-for change in the town’s
current zoning and planning program, government decision-making is affected in
ways that consent cannot ameliorate.
19. The second circumstance in Rule 1.7(b) that makes a
conflict nonconsentable is that the representation is “prohibited by law.” As noted above, whether the conflict here is
prohibited by law is a legal question beyond the jurisdiction of this
Committee, so we do not answer that question.
20. The third circumstance in Rule 1.7(b) that makes a
conflict nonconsentable is that the representation involves 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. Here, there is a question about whether the
matter before the planning board involves a “claim” by one client of the firm
against another client. There is also a
question about whether the planning board is a "tribunal” within the
meaning of Rule 1.0(w) (“‘Tribunal’ denotes . . . an . . . administrative
agency or other body acting in an adjudicative capacity,” i.e. “when a neutral
official, after the presentation of evidence or legal argument by a party or
parties, will render a legal judgment directly affecting a party’s interests in
a particular matter.”). See N.Y. State 838 (2010) (whether a
rule-making or rate-making proceeding before an administrative agency should be
considered as being before a “tribunal” is a question of fact; principles that
would apply to the determination include whether the parties have the
opportunity to present evidence and cross-examine other providers and whether
the ultimate determination will be made by a person in a policy-making role or
by an independent trier of fact such as an administrative law judge). Both questions involve issues of fact or law
that are beyond our jurisdiction to determine.
But if the representations here are prohibited by law, or if the
planning board is a tribunal and the zoning application is a claim by one
client against another client, then the conflict here is nonconsentable.
21. It does not matter that we lack power to resolve
the issues raised by the second or third circumstances of Rule 1.7(b)(3),
because Rule 1.7(b)(1) settles the question.
A municipal zoning or planning board performs important functions which
ordinarily involve public hearings.
Typically, the advocate of any zoning change (here, presumably the
counsel for the Owner) outlines the proposed change, while counsel for the
board (here, a lawyer affiliated with the Owner’s advocate) has the duty to
question the proposal, raise concerns, and perhaps engage in direct
negotiations with the party advocating the proposed change. During those
negotiations, either the Owner or the Town may need to compromise or yield
points. In addition, because the hearings
are public, affected citizens – to whom the Town’s counsel may owe duties – may
voice their concerns about the proposed zoning change. The planning board must be neutral and free
from bias when carrying out its duties.
In these circumstances, lawyers from the same law firm who are representing
potentially opposing parties could not reasonably conclude that each can
provide competent and diligent representation to his or her client. This is especially true where the town
attorney holds the heightened duties of counsel to the public, and the public
will suffer if he provides anything less than competent and diligent
representation to the Town.
22. For all these reasons, we believe the conflict here
nonconsentable conflict exists when one member of a law firm acts as Town
Attorney on, among other things, planning and zoning matters while another
lawyer in the same law firm seeks to represent an applicant before the Town’s