CI-811

September 17, 1982

SYLLABUS

Where a city's law department has formerly opined on a matter in controversy between the mayor and the city council, the city law department may not represent both the council and the mayor in litigation to resolve the controversy even if both parties consent to the dual representation.

References: MCPR Canon 9, DR 4-101(A) and (B), DR 5-105(B), (C) and (D); CI-319, CI-334; Jedwabny v. Philadelphia Transp. Co. 390 Pa 231, 135 A2d 252 (1957); Chateau de Ville Prods., Inc. v. Tams-Witmark Music Library, Inc. 474 F Supp 223 (SD NY 1979).

TEXT

Both the mayor and the council of a city regularly request legal opinions from the city law department, which are supplied on an advisory basis rather than from an advocate's position. Currently there is a controversy between the mayor and the council regarding the mayor's appointment of a certain official. The law department opined that the council was correct; i.e., that the mayor had not followed certain procedures necessary to validate that appointment. The mayor did not take remedial action, which would have validated the appointment but rather directed the appointee to continue to serve relying on the adequacy of the procedures followed previously.

As a result, the council has ordered the law department to bring an action in order to settle the controversy. The law department has offered the mayor assistance in that action. The mayor has since stated to an area newspaper that he considers the dual representation "the most unethical thing he has ever heard of."

Based on the above facts, you have asked the committee's opinion regarding the following issues:

1. May the City's law department represent both the Council and the Mayor in the action if both consent to the dual representation?
2. May the City's law department represent both the Council and the Mayor in the action in light of the Mayor's statement to the press?

MCPR DR 5-105 provides in part:

"(B) A lawyer shall not continue multiple employment of the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105(C).

"(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it ifs obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

"(D) If a lawyer is required to decline employment or to withdraw from employment or to withdraw from employment under a Disciplinary Rule, no partner, or associate, or any other lawyer affiliated with him or his firm, may accept or continue such employment."

The law department regularly represents the mayor and the council; they are both current clients, who now have differing interests. Therefore, MCPR DR 5-105(B) is triggered, i.e., the law department's representation of both clients would likely to adversely affect the representation of those clients. Furthermore, under MCPR DR 5-105(D), all lawyers within the law department are required to withdraw from representation if one lawyer is required to do so. C-212.

The exception to a mandatory disqualification when representing client of differing interests set forth at DR 5-105(C) requires that two elements be present: (1) it must be obvious that the law department can adequately represent the interest of each client, and; (2) each client must consent to such representation after full disclosure. There are three facts which would indicate that the law department could not adequately represent both clients in this action. First, the law department has previously issued an opinion which reached a result contrary to the interests of one of the clients. Second, one client has indicated a lack of respect for the law department's judgment in this matter. Third, the representation contemplated by the law department is litigious in nature.

The primary basis for disallowing a lawyer's simultaneous representation of clients whose interests differ absent the clients consent is the danger that a lawyer who represents adverse interest may develop a sense of loyalty to one client which will undermine the representation of the other. The first two factors indicated above could lead to an assumption that the law department would have a greater sense of loyalty to the council than to the mayor. The fact that one of the clients has decided to resort to litigation to resolve the clients' differences weighs heavily against a showing of the law department's obvious ability to adequately represent the interests of both clients. As provided in ABA Model Code of Professional Responsibility EC 5-15:

"If a lawyer is requested to undertake or to continue 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 or continues 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." Emphasis added.

Courts have consistently held that simultaneous representation of plaintiff and defendant in the same litigation presumably affects the lawyer's independent judgment to such a degree that it is obvious that the lawyer cannot adequately represent both client. See, Jedwabny v. Philadelphia Transp., Co. 390 Pa 231, 135 A2d 252 (1957) and Chateau de Ville Prods., Inc. v. Tams-Witmark Music Library, Inc. 474 F Supp 223 (SD NY 1979). Similarly, CI-319 concluded that representation in litigation of multiple clients with potentially differing interest would be improper.

While the law department may honestly believe that it has the ability to adequately represent both clients, the obviousness of the presence of that ability is extremely questionable under the circumstances. In CI-334:

"A lawyer who believes, reasonably and in good faith that he can properly represent several clients with un-identical interests may be found to have behaved unethically by Grievance Board personnel who, with '20-20 hindsight, ' may have views quite different than those of the lawyer about such matters as likelihood of adverse affect on independent judgment, obviousness of ability to adequately represent each client, and fullness of disclosure of possible effect on independence of judgment."

That opinion points out the fact that any lawyer who represents clients with conflicting interests even with the consent of those clients does so at his own peril since such representation is "fraught with danger." Since the ethical conduct of the law department is being called into question by one of the clients, MCPR Canon 9, "a lawyer should avoid even the appearance of professional impropriety," should be considered.

In conclusion, it does not appear obvious that the law department can adequately represent the interest of both clients in the action. That conclusion is augmented by the fact that the parties have resorted to litigation. Therefore, it is advisable that the law department withdraw from representation of one of the clients. Furthermore, if the client whose representation is declined could plausibly maintain that the law department is privy to confidential information based on any prior representation of that client, which information could be used to the client's detriment in this action, the law department may not represent either client. See DR 4-101(A) and (B).