When the Government Is a Former Client

Revolving door provisions typically do two things: prohibit attorneys who go from the public sector into the private sector from appearing before the governmental body for which they worked for a set amount of time (usually one or two years); and impose a lifetime ban on appearances before a governmental agency on any specific matter worked on in the public sector. The lifetime ban, depending upon its interpretation, could prove problematic for law firms who serve as municipal attorneys on retainer. For example, if an attorney drafted a local subdivision law or ordinance fifteen years ago, and no longer represents the municipality, is the lawyer or her firm prohibited from ever representing an applicant for a subdivision approval? Unless the population represented by the local government is substantial, the majority of municipalities simply employ legal counsel on retainer from local law firms (as opposed to full-time salaried employees). The political nature of the job of municipal attorney means that from election year to election year, the appointment of the local government attorney may also be up for grabs. Should municipal attorneys be prohibited from ever doing work in the jurisdiction which pertains to land-use laws that may have been drafted or written by them or their firms in the past? If this is so, it may have a chilling effect on the number of lawyers interested in municipal work.

The Code of Professional Responsibility in DR 5-108 specifically addresses conflicts of interest with respect to former clients. The Rule provides that, absent express consent upon full disclosure to a former client, a lawyer shall not, "1. Thereafter represent another person in the same or a substantially related mater in which that person's interests are materially adverse to the interests of the former client. 2. Use any confidences or secrets of the former client...." Recently, a New York appellate court, relying on DR 5-108, held that where a law firm had been retained by a municipality for approximately twenty-five years, first as counsel to the planning board and later as counsel to the village, and during that time it had been involved in the site plan law which was developed and in effect, it was precluded from representing a client before the planning board for a site plan review six years later. [FN25] The court found that given the long-standing prior representation of the village in matters which directly related to zoning and site plan review (including the fact that the law firm had drafted a recodification of the code), this was a, "... substantial related matter in which ... [petitioner's] ... interests are materially adverse to the interests of the former client."

This case has a significant impact on practitioners who retain public sector clients, especially when their retainer agreement may be terminated at will and their prior work and advice may preclude any later representation in an area where they have built a practice concentration

In reaching a somewhat different conclusion, a Virginia court held that a law firm would not be disqualified from representing a client for a rezoning before the county where the firm employs a former county attorney who was involved in land-use matters during her employ as a county attorney. [FN26] The Court determined that there was no conflict with DR 5-105 [FN27] since the citizen taxpayers who brought the suit were not clients of the former county attorney, and her former client, the county, did not challenge the representation. Furthermore, the Court found that DR 9-101 which provides that, "a lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee," did not apply in this case since there was no evidence that the former county attorney was involved in rulemaking or policymaking. [FN28]

Disclosure and Recusal

Determining when disclosure alone is enough or when recusal or withdrawal is the more appropriate course of action can also be a challenge. For example, may an attorney in private practice represent clients before a planning or zoning board where her spouse sits as a member? While one may assume that the ethics inquiry is a matter solely for the municipal official, does the attorney have an obligation to disclose the relationship to

their client? Furthermore, does professionalism dictate that the lawyer attempt to ascertain whether her firm is being retained for the hearing in an effort to garner votes due to the marital status of a lawyer in the firm and a board member? In a recent opinion of the California Attorney General, it was opined that a city council may enter into a development agreement with a land developer when one of the council members is married to an attorney whose law firm represents that developer on other matters, so long as the council member discloses the interest to the council on the record, and the member does not participate in negotiating or voting upon the agreement. [FN21]

A Georgia court held that where the planning commissioner's son was a member of a law firm, even where the son had no direct involvement in the representation, the commissioner was prohibited from participating in the proceedings for the zoning application. [FN22] The court also referred to the local ethics code which prohibited a municipal officer from participating in a matter involving an interest of an immediate relative. [FN23] The court stated, "Public interest requires that Cobb County protect against improper influence or the appearance of improper influence...." [FN24] The court did not address the motives or the integrity of the lawyers involved; rather it focused on the conduct of the planning commissioner

Conflicts as Applicable to the Law Firm

Another dilemma is presented when a municipal attorney's private law firm wishes to represent a client before a municipal board. May the firm do so without causing a conflict of interest situation for the municipal lawyer? The answer may not be so clear-cut, and may depend upon: provisions in state and local government ethics laws; the Code of Professional Responsibility; a determination as to whether the municipality will hire special outside counsel to offer advice on the matter; and an inquiry as to whether the municipal attorney will financially benefit from her firm's representation of the client before the municipality. [FN15]

In a recent New Hampshire case, the chair of a county commission was ordered disqualified from participation in a determination of public necessity prior to the initiation of eminent domain proceedings since the chair was a lawyer and his law partner was representing two of the landowners. [FN16] Since the chair had already participated in the proceeding, the court remanded the matter for a new proceeding. [FN17]

In Pennsylvania, an attorney may not represent a township in making amendments to their zoning code when a member of his law firm conducts the hearing and rules on objections. [FN18] The court warned, "All municipal adjudicative bodies must avoid unnecessary conflicts and commingling of incompatible functions whenever possible." [FN19] Since this procedure was susceptible to prejudice, it was prohibited. In relying on an opinion of the Ethics Committee of the Mississippi State Bar, the Attorney General opined that it would be a violation of the Code of Professional Responsibility for a law firm to represent a client who is seeking to establish a facility in the city while the firm has been retained to assist the city attorney in the defense of an unrelated voting rights case against the city. [FN20]

Conflicts Between Clients

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

Professional Ethics vs. Government Ethics

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].

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]).