Other times, a conflict may arise when a municipal attorney is appointed on retainer, and a conflict arises between the position of a municipal client and another client. For example, it was held a violation of DR 5-105(A)(B) and (C) for a village attorney and his firm to represent the zoning board of appeals and at the same time appear as attorneys for an interest requesting relief from the ZBA. The same case held that it is also a conflict for the same attorney to file a petition challenging the determination of the board. [FN10]
Similarly, the New York Attorney General opined that the counsel to a municipal water supply board may not represent a developer in applications for subdivision approval before the city planning and zoning commissions. [FN11]
Disciplinary Rule 9-101 provides in part, "1. A lawyer shall not represent a private client in connection with a matter in which he participated personally and substantially as a public officer or employee...." While most people would recognize this as a "revolving door" provision, the question remains as to what exactly "personal and substantial participation" means, and whether this precludes representation years down the road. At least one state has determined that it is unethical for an attorney for the town zoning board of appeals to represent a client in a private matter before the town board. [FN12]
In one case, an attorney representing a borough in New Jersey began representation of a attorney did not represent the planning board, the board of adjustment or the developer during the land-use approval process, the court nonetheless held that such dual representation was forbidden as contrary to the public interest. [FN13] The court noted that the very nature of the work of a developer involves a high degree of municipal interaction. The court stated: [T]he likelihood of transactions with a municipality and the room for public misunderstanding are so great that a member of the bar should not represent a developer operating in a municipality in which the member of the bar is the municipal attorney or the holder of any other municipal office of apparent influence. [FN14]
developer after the developer had already received final approval for his project. The attorney was retained to handle matters including mortgage financing. Although the
No comments:
Post a Comment