Ethics Opinion

Opinion No. 88-1

January 1988

Summary: An attorney who regularly represents criminal defendants in matters in which municipal police officers are the defendants may represent the autonomous school board of the municipality absent special disqualifying circumstances, such as representation of a defendant charged with damaging school property.

Facts: A law firm has requested advice with respect to the propriety of his firm's proposed representation of the local school board in matters that cannot be handled by the municipal solicitor when the firm at the same time would be representing criminal defendants in cases where municipal police officers are the complainants.
Discussion: DR 5-105(A)states that with certain exceptions a lawyer "shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, or if it would be likely to involve him in representing differing interests ... ." This committee in Opinion 78-1 advised that a town counsel or town prosecutor, and members of their firms, could not represent a criminal defendant in any case in which the town had an interest or where any town police or other officer was involved as complainant, prosecutor or witness.
The situation in the present inquiry is quite different. The proposed representation here is not of the municipality's interest in general but only of the school committee, which is an independently elected body. Municipal officials and the police department have nothing to do with the management or operation of the school committee, except that the governing body of the municipality does approve its bottom-line budget. The municipal solicitor would play no role and would have no supervisory authority over the law firm in matters that would be handled by the firm for the school committee.
The question to be resolved is whether it is likely that the firm's independent professional judgment on behalf of a criminal defendant or the school committee would be affected by representation of the other or whether the firm would be representing "differing interests," as defined in the rules. The basis for concern is that the law firm would be simultaneously representing and defending against essentially the same client because the municipal school committee and the municipal police are both arms of the municipal government. The analogy would be to representing a parent company and suing its subsidiary at the same time, a course of action that the Supreme Judicial Court has held to come within the prohibitions of DR 5-105 and hence forbidden unless the firm can come within the consent provisions and the objective test of DR 5-105(C). See The McCourt Co., Inc. v. FPC Properties, Inc., 386 Mass. 145 (1982).
We believe that the Supreme Judicial Court would not follow that reasoning, at least not by way of a prophylactic rule, where different branches of municipal government are concerned. There are several major differences between the private company and the municipal government situations. In the first place, suing one subsidiary while representing its parent or another subsidiary has direct financial implications for the consolidated financial unit that are simply not present when a law firm represents a criminal defendant at the same time that it represents the school committee. In the second place, these governmental units, the police department and the school committee, not only operate separately from one another, but the school committee is also an independently elected body. In the third place, there are important public policy considerations favoring a reading of the rules that is not overly rigid. It is important that public bodies not be overly restricted in their ability to obtain good counsel when their regular lawyer is unable to handle a matter. A mechanical reading of the rules that precluded, at least prima facie, the representation of any part of a municipal government when a firm is currently appearing adversely to any other part of that government would prevent most firms from ever representing government and would prevent government from obtaining needed counsel.
A sensible interpretation of the rules would not regard the entire municipal government as one unit, but rather would focus on the actualities of the operation of the units involved and the facts of the particular matters in issue. On that basis, the rules ought to be interpreted to permit the inquiring firm to represent the school committee at the same time that it represents criminal defendants so long as the representation of the school committee's interests and of the interests of any particular defendant do not impinge on one another. DR 5-105(A) would, for example, preclude the firm from representing a criminal defendant charged with damaging public school property while it was representing the school committee, and it is unlikely that DR 5-105(C)'s objective test could be met in such a case.
In reaching the conclusion, we have been influenced by the fact that the school committee is an independent body whose functions are normally unrelated to the workings of the police department. We have also been influenced by the fact that the municipal solicitor will play no role in supervising the law firm's work for the school committee. Potential conflicts involving other municipal agencies must be evaluated on a case-by-case basis, to ascertain whether the requirements of DR 5-105(C) have been satisfied.
This advice has not considered the application of Chapter 268A to these facts for that question involves a question of substantive law as to which this committee is not permitted to advise.

Permission to publish granted by the Board of Delegates on January 22, 1988. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.