Applicable Ethics Rules

There are a number of places where a land-use lawyer must search for guidance on ethical dilemmas arising in the land-use context.

A. The Code of Professional Responsibility

All lawyers adhere to the code of ethics adopted by the state court system in each jurisdiction. The Code of Professional Responsibility was initially promulgated by the American Bar Association (ABA) in 1969, and contains nine cannons with myriad disciplinary rules and ethical considerations. In 1983, the ABA adopted the Model Rules of Professional Conduct which contain commentary to the Rules. States have adopted one of the two models, and in many cases made changes to reflect jurisdictional concerns. Therefore, individual state laws governing attorney conduct need to be consulted for variation and caselaw interpretation.

B. State Ethics Laws

Every state has enacted a code of ethics or a code of conduct for public employees. While some states pay minimal attention to the issue of municipal ethics (where land-use planning and zoning decisions generally take place), other states have specific statutory provisions for local government officials.

*387 C. Local Government Ethics Laws A number of states specifically authorize and/or mandate that local governments adopt their own codes of ethics. Some state statutes make specific reference to conflicts of interest in state and regional planning acts and laws. Attorneys who work for or in front of planning and zoning boards must be conversant with these rules as well as the more generally applicable rules of legal ethics, for a number of obvious reasons: (1) under a statutory or local law definition, if the lawyer represents the municipality or the board, she may be bound individually by the law; (2) lawyers counseling local entities or individuals therein must be familiar with special ethical considerations in the public sector; and (3) lawyers representing applicants before the boards need to know the applicable standards of ethical conduct to best serve the interests of their clients.

D. Ethics Committees and Commissions

In addition to the codes and local laws, there are special committees and commissions which may provide formal and informal opinions on professional and government ethics. These include committees of the American Bar Association, state bar associations, the Federal Bar Association, state ethics commissions or boards, and local government ethics boards. These opinions at the state and association levels may be available through online research databases, through subscription services, and in some cases, on the Internet. Opinions from local ethics committees may be more of a challenge to research.

E. State Attorneys General and Comptrollers

The state attorney general and comptroller may also offer formal and informal opinions to  municipal officials and municipal attorneys on a wide variety of ethics issues including conflicts of interest and compatibility of dual office holding. These opinions are published, readily available online, and serve as a useful source of insight into the application and interpretation of constitutional, statutory, and common law ethics principles.

F. Other Professional Organizations

Finally, if your client is the municipality and you represent the professional planning staff, both the American Planning Association and the American Institute of Certified Planners have issued guidance documents on appropriate ethical conduct for planning. In addition, other professionals who may come into contact with the municipality with respect to a land-use matter may also be governed by a code of ethics from their professional association (e.g., architects, [FN4] engineers, [FN5] and realtors [FN6]).