Determining the nature of a potential ethical issue is not often as easy as it appears. For example, attorneys may be functioning in more than one advisory role, and they may be subject to both professional and governmental ethical considerations. These standards may not always be in agreement with each other. What follows is a discussion on three areas of concern for the lawyer both as a professional and as an advisor to a municipality. The issues addressed below merely begin to uncover the ethical dilemmas which may confront the land-use practitioner.
A. Attorney as a Professional.
As noted in the introduction, the conduct of attorneys is governed by the code of professional responsibility
adopted by each state.
1. CONFLICTS OF INTEREST
The Code of Professional Responsibility DR 5-105 prohibits attorneys from representing clients with differing interests. Sometimes, the municipal attorney finds herself in a conflict of interest situation. For example, when a town attorney discovers a conflict between the position of the town board and the town zoning board of appeals, each municipal body would be entitled to their own legal counsel. [FN7] In Kentucky, the Attorney General opined that it is a common law conflict of interest and incompatibility of office situation for an attorney to function as an independent contractor for a municipal planning and zoning board while at the same time serving as an assistant county attorney, where the municipalities are within the county. [FN8] It is not uncommon for attorneys or law firms to represent more than one and sometimes dozens of municipalities. At times this can also test ethical limits as at least one state ethics committee has opined that it is not improper per se for a lawyer to be both the town attorney and the village attorney for a village located with the town. [FN9].
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