C-241

July, 1988

SYLLABUS

Members of the same law firm as a member of the city council may not represent as attorneys, individuals appearing before the city governmental body on which the firm member sits.

Members of the same law firm as a member of the city council may not represent as attorneys, individuals appearing before city governmental bodies subordinate to the body on which the firm member sits.

References: MCPR DR 9-101(C), DR 8-101; C-212; CI-42, CI-192, CI-419, CI-1003; Op 192. C-216, CI-382 and CI-1106 are distinguished.

TEXT

A city council member is a member of a law firm, and asks (a) whether other members of the law firm may ethically represent clients before the city's boards, commissions, or other municipal bodies, and (b) whether ethical problems are eliminated if the city council member is disqualified from considering any matter in which a member of the law firm appears.

We have previously indicated that it is unethical for a partner, shareholder, or employee of a law firm to appear before a local government administrative board as an attorney representing a client, when a member of that board is also a partner, shareholder or employee of the same firm. CI-192. In the same vein, an attorney who is a member of a city council may not represent defendants charged with violations of that city's ordinances. CI-419. See also, CI-42.

MCPR DR 9-101(C) forbids a lawyer from implying an ability to influence on "irrelevant grounds any tribunal, legislative body, or public official." MCPR DR 8-101(A)(2) prohibits an attorney from using a public position to influence, or to attempt to influence, a tribunal to act in favor of a client.

These ethical problems are raised by the current inquiry. Alternatives short of prohibiting this type of representation run afoul of serious policy concerns. Recusal of the governmental member from matters in which the law firm participated would not resolve the issue. While it is in the public interest to encourage the participation of attorneys in public life, withdrawal from specific issues would deprive citizens of the representative elected to exercise judgment in just such matters. Further, in the quasi-judicial context in which city administrative matters arise, both parties may not be represented by counsel as in the judicial arena, nor may an issue necessarily be contested. Thus, the "safety value" of a request for recusal may not, as a practical matter exist. The need for such a "safety valve" also lends credence to a need to avoid such apparent conflicts. Compare C-212, city attorney may not represent a person charged with violation of an ordinance of the employing community; Op 179, a lawyer-member of a municipal board of zoning appeals and the lawyer's law partners and employees may not represent a client's interest in proceedings before that board.

There is additionally the concern that where the individual pursuing relief before the city council or subordinate body feels aggrieved by the governmental decision, there exists the possibility of litigation between that person and the city, creating an inexorable conflict. CI-1003, city attorney and members of the sam firm may not appear before the city council representing private clients in applications for licenses and other matters that might result in litigation between such persons and the city; CI-192, a partner, shareholder or employee of a firm cannot ethically represent a client before an administrative board on which a partner, shareholder or employee of the same firm sits.

To the extent that C-216 and CI-382 may suggest a different result, they may be distinguished because they involve judicial proceedings where, as part of the adversary process, the public interest may be protected. CI-1106 involved the spouse of an attorney and not the attorney directly.