MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2003-15
May a county attorney’s office simultaneously represent a zoning appeals board and a county agency that is a party to litigation before the board?
You are the County Attorney for your jurisdiction. You inquire about the propriety of the participation of one of the attorneys from your office in an administrative proceeding before the County Board of Zoning Appeals (“Board”).
The facts as you present them are that the County’s Planning and Zoning Commission (“Commission”) approved a preliminary plan for a subdivision presented by certain property owners. The subdivision plan was opposed by the County’s Department of Planning. The County Department of Planning appealed the Commission’s decision to the County Board of Zoning Appeals (“Board”). On appeal to the Board, the property owners are represented by a private attorney, while the opposing side – the Department of Planning _ is represented by an assistant county attorney. The Commission, below, and the Board, on appeal, are also represented by assistant county attorneys.
Prior to a hearing before the Board, the lawyer for the property owners sent a letter urging the disqualification of the County Attorney’s Office from participation in the appeal either as counsel for the Appellant or as counsel for the tribunal. The lawyer asserted in his letter that it is improper for the County Attorney’s Office to represent one of the litigants in a dispute before the Zoning Appeals Board at the same time it also represents the Board itself. You inquire whether the Maryland Rules of Professional Conduct for Lawyers prohibit the participation of the County Attorney’s Office in the administrative hearing before the Zoning Appeals Board.
You advise that, in preparing for the appeal, the assistant county attorney who represents the Department spoke with the Commission’s lawyer (another assistant county attorney) about the original hearing but that the assistant county attorney who serves as the appeal Board’s lawyer has not participated in any of those discussions and has not had access to the Appellant’s documents related to the dispute.
In order to determine whether lawyers of the Department of the County Attorney may simultaneously represent the aforementioned governmental bodies, it will be necessary to determine the relationship between the various agencies as well as the legal authority and duties of the Department and the relationship of its attorneys to one another. Attorneys employed by a government entity are frequently considered to be members of a “firm.” Graves v. state, 94 Md. App. 649 (1993), rev’d on other grounds, 334 Md. 30 (1994). However, where the practice of each attorney is so attenuated from the other’s that the interchange of information can be avoided, there is not practical analogy to a law firm for the purposes of the imputed disqualification requirements of Rule 1.10.
The Comment to Rule 1.13 (Organization as Client) recognizes its applicability to attorneys representing the government, while acknowledging some potential difficulties regarding the identification of the client:
The duty defined in this Rule applies to governmental organizations…
In addition, duties of lawyers employed by the government…
may be defined by statutes and regulation. Therefore, defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context.
Although in some circumstances the client may be a specific agency, it is generally the government as a whole.
Additionally, the Scope section of the preface to the Maryland Lawyer’s Rules of Professional Conduct provides that lawyers under the supervision of an attorney general, state’s attorney, or other government law officers, may be authorized to represent several government agencies in intra-governmental legal controversies in circumstances where a private lawyer could not represent multiple clients. The Scope further provides that “[t]hese Rules do not abrogate any such authority.”
In an opinion involving the County Attorney of St. Mary’s County the Attorney General of Maryland advised that that County’s Attorney represents the corporate entity, not its individual constituent agencies or officers. In doing so, the Attorney General opined that:
The corporate entity that is St. Mary’s County is the client of the St. Mary’s County Attorney. The county commissioners are not individually the clients of the county attorney. However, to the extent that the commissioners and other elected and appointed officials and employees of the county are carrying out the function of the corporate entity in accordance with law, they are the agents of the client and may be viewed by the county attorney as entitled to speak for the client. Although the county attorney should act with due regard for the public interest, and attorney-client relationship as such does not ordinarily exist between the county attorney and the citizens of the county.
82 Op. Att’y Gen. _ (Op. 97-028, 1997).
In an analogous situation, courts in other jurisdictions have determined, based on their respective state constitutions, that a state Attorney General, who is not an actual party and has no interest in a contented matter as a private individual, has no conflict of interest in continued simultaneous representation of apposing state agencies in litigation. City of New York v. Pennsylvania Public Utility Com., 449 Pa. 136(1972) Granholme v. Public Service Commission, 243 Mich. App. 487 (2000). The court in Illinois EPA v. Pollution Control Board, 69 Ill. 2d 372 (1977), for example, reasoned that the attorney general’s responsibility, as chief legal officer, is not limited to serving or representing the particular interests of State agencies, including opposing agencies, but embraces serving the broader interests of the government.
The Committee stresses the fact that the authority of the Department of the County Attorney is determined by public local law. Accordingly, the issue of whether your Department of the County Attorney represents the governmental organization or simply its constituent officers or agencies is a legal question that you must determine. See Ethics Docket 88-7, 88-35. 1
The general rules concerning conflicts of interest are set out in Rule 1.72 of the Maryland Rules of Professional Conduct. Rule 1.7 states as follows:
- “A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless
- the lawyer reasonably believes the representation will not adversely affect the relationship with the other client, and
- each client consents after consultation.
- 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 to a third person, or by the lawyer’s own interests, unless:
- the lawyer reasonably believes the representation will not be adversely affected, and
- the client consents after consultation.”
In the event that you determine that your Department is not legally prohibited, per se, from simultaneously representing these county agencies, you mush consider the possible limitations imposed by Rule 1.7(b). You must determine whether a conflict among the governmental agencies will materially interfere with the independent professional judgment of any of the lawyers.
Also, in the event that you determine that you Department is not legally prohibited from simultaneous representation of these county agencies, you would also have to consider Rule 1.6 (confidentiality of Information). You advise that the Board’s lawyer has not participated in conversation s related to the appeal and has not had access to any Department of Planning documents. However, you do not advise what specific procedure or policy is in lace to avoid inadvertent disclosure of confidential information. The Committee recommends the use of a “Chinese wall” to maintain confidentiality as necessary. Se Ethics Docket 89-8.
Finally, this Committee notes that there may be other ethics laws enacted by the County with which we have no familiarity. You should check to determine whether or not the local legislative body has enacted any such ethical standard, which would preclude your representation of other clients.
We trust that the forgoing is responsive to your inquiry and thank you for taking the time to solicit and opinion from the Committee.
1 The ethics opinions of the Maryland state Bar Association’s Ethics Committee are available to members via the Association’s website http://www.msba.org.
2 Rule 1.11(a) may also be instructive in this matter. That rule proscribes representative of a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee unless the appropriate governmental agency consults after consultation. In Ethics Docket 99-28, this Committee opined that the principles or Rule 1.11 should apply to simultaneous government and private employment and state that Rule 1.11(a) specifically contemplates that a governmental agency has the power to consent, after consultation, to waive a conflict.