MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2001-09
Conflict of Interest: Representation of clients before land-use, planning and zoning commission’s boards while serving as commission’s lobbyist
You have indicated that your firm represents private clients before two land-use, planning and zoning boards of a bi-county commission. Both boards jointly govern the commission in connection with policy and issues affecting the commission as a whole. Your firm is also being considered for a position as the commission’s lobbyist in Annapolis. You have indicated that the commission is charged with the review and approval of subdivisions, rezonings, special exceptions, site plans and permits. You have not provided facts relating to the commission’s legislative interests. You have not indicated whether such private clients’ appearances before the commission’s boards would be isolated or ongoing, and, understandably, you also have not provided specific facts relating to private clients’ cases before the commission’s boards. Finally, you have indicated that firm attorneys representing private clients before the boards would not also lobby for the commission. You have then asked whether your firm’s simultaneously serving as the commission’s lobbyist and representing private clients appearing before the commission’s two boards would pose a conflict of interest.
First, Maryland Rules of Professional Conduct, Rule 1.10 provides in pertinent part, “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule[] 1.7 …. ” Consequently, the fact that attorneys appearing before the boards will not also be lobbying for the commission does not insulate your firm from a potential conflict of interest.
The primary issue presented by your inquiry thus centers on Maryland Rules of Professional Conduct, Rule 1.7, which provides in part:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. [Emphasis added.]
As the emphasized language above suggests, your inquiry poses the questions whether the interests of the commission and private clients appearing before the commission’s boards would be “directly adverse”; whether your firm’s representation of one client would be “materially limited by” your firm’s responsibilities to the other or to a third party or by your firm’s own interests; and whether any such “direct [ ] advers[ity]” or “material [ ] limit[ation]” could reasonably be expected to “adversely affect [ ]” one of your firm’s clients.
Without specific facts relating to the commission’s legislative interests or your private clients’ cases, and assuming that your firm would not be advising the commission or its boards regarding private clients’ matters being adjudicated, the Committee cannot categorically conclude that the dual representation proposed would be “directly adverse” or that your firm’s representation of one client would be “materially limited by” your responsibilities to the other client, a third person or your firm’s own interests. Nevertheless, for the following reasons the Committee has grave reservations about the advisability of such dual representation.
First, even if the commission may not initially have interests which would be deemed “directly adverse” to those of the parties appearing before the commission’s boards, were a private client subsequently to appeal from a decision by one of the commission’s boards, such private client’s interests could then become “directly adverse” to the commission’s interests and such client might be “adversely affected” should your firm, as would be likely, cease to represent the client on appeal. Similarly, the Committee also believes that your representation of such private clients could thereby be “materially limited by” your firm’s responsibilities to the commission.
In addition, the commission could ask your firm to lobby for enhanced statutory or regulatory authority, an outcome which could “adversely affect[]” the present or future interests of your firm’s private clients, particularly those who appear before the commission’s boards on an ongoing basis. For example, while Rule 6.4 (“Law reform activities affecting client interests”) is not directly applicable to your inquiry, it contemplates that an attorney’s “law reform activities” can “adversely affect [1” a client’s interests. The comments thereto suggest, for example, that “a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions or rules governing that subject” and go on to note that in seeking to effect a change in the law, a lawyer should be mindful of his or her obligations under Rule 1.7.
The Committee is also concerned that even were your firm able successfully to sequester the attorneys involved, and even were those attorneys who appeared before the boards to exercise the independent professional judgment required by Rule 2.1, because both boards jointly govern the commission, your firm’s explication of the law when counseling the commission or your firm’s advocacy of position(s) as the commission’s lobbyist could undermine the persuasiveness or credibility of contradictory position(s) your firm might advocate on behalf of private client(s) appearing before the boards, thereby “adversely affect [ing]” your private client (s) . Although less likely, a legislative body might similarly perceive your firm’s advocacy of its private clients’ positions before the commission’s boards as contradicting, and thus undermining the persuasiveness and credibility of, positions your firm was advocating as the commission’s lobbyist, thereby “adversely affect[ing]” the commission.
The Committee also notes that Rule 1.7(b) requires that your firm ought to consider whether its own interest in continuing to represent the commission would “materially limit[]” its representation of its private clients. For example, given the political context of your proposed dual representation, your firm’s interest in preserving its relationship with the commission could “materially limit[]” its representation of its private clients by jeopardizing its independent professional judgment (Rule 2.1), for example, in advocating or foreclosing courses of action before the boards that might otherwise reasonably have been pursued on behalf of your firm’s private clients.
Furthermore, even were your firm able reasonably to conclude that any possible “direct [ ] advers[ity]” or “material [ ] limit [ation]” would not “adversely affect [ ]” one of your clients, each client must still consent to such dual representation after consultation. Rule 1.7(c) thus provides:
The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer’s responsibilities to another, or from the lawyer’s own interests, as well as the advantages and risks involved.
In turn, it is conceivable that adequately explaining the implications of the common representation or the limitations thereto as well as the advantages and risks involved might, for example, necessitate that your firm communicate to its private clients confidential information relating to the positions or interests of the commission. Because Rule 1.6(a) requires that such confidential information may only be revealed after client consultation, the consultation required by Rule 1.7(c) might well have to be preceded by the consultation required by Rule 1.6(a).
The Committee also cautions you that in addition to the potential for a violation of Rule 1.7, the dual representation proposed has the potential to lead to violations of other Rules as well. For example, your firm would have to be wary of any unauthorized revelation of one client’s confidential information to the other (prohibited by Rules 1.6 (a) and 1. 8 (b)); and because members of your firm would simultaneously be representing, and in communication with, members of the commission who are also members of the boards, your firm would have to be wary of violating Rule 3.5 (prohibiting the improper influencing of officials and ex parte communications with such officials) and Rule 8.4. (prohibiting the implication of an ability to influence an official)
Finally, while the Committee does not equate the potential for a Rules violation (or the mere accusation thereof) with a violation, the Committee also does not believe that a significant likelihood of encountering conflicting responsibilities should be ignored, since the avoidance of such conflicts, before they occur, lies at the heart of the Rules. As the Preamble to the Rules of Professional Conduct indicates:
A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious.
In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living.
Accordingly, because the spirit of the Rules of Professional Conduct seeks to prevent lawyers from encountering un-harmonious or conflicting responsibilities, the Committee believes it appropriate to consider not only whether a conflict of interest exists at the outset but also the probability that one may eventually be encountered or asserted. For example, it is conceivable, if not probable, that an opponent of one of your private clients who was appearing before the boards would object to your firm’s dual representation of the commission and such private client. Given the political context of your firm’s dual representation, such an accusation might in itself cause your clients’ interests to become “directly adverse” or might cause your representation of one client to be “materially limited by” your responsibilities to the other or by your firm’s own interests.
In summary, while the Committee cannot conclude from the limited facts presented that the dual representation proposed is prohibited, the Committee strongly discourages it.
We hope that this opinion is of assistance.
REFERENCES: Maryland Lawyers‘ Rules of Professional Conduct, Rules 1.6(a), 1.7, 1.8(b), 2.1, 3.5, 6.4, 8.4; Preamble