Summary: In certain circumstances, town counsel may undertake litigation on behalf of the board of selectmen of a town against a subordinate town agency even though town counsel is currently representing the agency in other litigation. It is crucial in the present inquiry that the two items of litigation are unrelated, that town counsel has no relevant confidences or secrets of the town agencies, that the representation of the agency involves appellate representation on a question of law, and that neither litigation involves the credibility or performance of the agency.
Facts: A lawyer is town counsel. The board of selectmen has directed the lawyer to file an action against an agency of the town to obtain a declaratory judgment that capital expenditures which the agency wishes to make require voter approval.
The agency has independent counsel concerning the capital expenditures. As town counsel, however, the lawyer has from time to time as part of her job advised the agency about issues of municipal law, and the lawyer is currently representing the agency in a lawsuit pending before the Appeals Court. Town counsel's role in the litigation has been limited because the agency made it clear that she was to follow the lead of the co-defendant, which is another government agency. The issues in the pending appeal involve questions of law, none of which relates to the dispute about voter approval of capital expenditures. Nor does town counsel have any confidences or secrets of the agency that are relevant to the proposed suit. The lawyer has inquired whether her current representation of the agency precludes her from bringing suit against it pursuant to the instructions of the board of selectmen.
Discussion: "The general rule is that a lawyer may not represent, and be adverse to, a client at the same time, at least not without consent of both clients after full disclosure of the possible effects of the multiple representation on the independence of the lawyer's professional advice. McCourt Co., Inc. v. FPC Properties Inc., 386 Mass. 145 (1982). Even with consent, taking an adverse position to a current client is not permitted unless it is 'obvious that the lawyer can adequately represent the interests of each.' DR 5-105(C)." Opinion 92-2. However, in Opinion No. 89-2, the committee concluded that DR 5-105 should not be applied with the same rigor to conflicts between agencies of the same municipality as it is to conflicts between private parties. In that opinion, after reviewing a series of relevant opinions of the Supreme Judicial Court, we advised that the duty of loyalty should not prohibit town counsel from bringing suit on behalf of a municipality against one of the municipal agencies which he regularly advises. We noted the havoc that would arise in the field of public representation if the conflict of interest rules were rigorously applied to the situation presented by the inquiry and inferred from the SJC's decisions that "the court would not interpret the consent and 'obviousness' requirements of DR 5-105 as forbidding the representation" sought in that situation. Opinion 89-2.
In essence, our conclusion was that the relation between town counsel and the town and its subordinate agencies is different from the relationship between a lawyer and two private clients. Town counsel is hired to represent the governing board of the town and representation of its subordinate units derives from that primary representation. While the SJC and we have interpreted the requirements of independent judgment and loyalty in DR 5-105 as precluding per se simultaneous representation for and against a private client, at least without consent, our advice in Opinion 89-2 followed the SJC's lead in applying DR 5-105 in the government lawyer situation on a case-by-case basis.
This inquiry goes one step beyond the fact situation in Opinion No. 89-2 because the town counsel is now representing in litigation the agency which she proposes to sue in a pending lawsuit. We answered Opinion 89-2 on the assumption that the agency was a current client only by reason of "fairly regular" representation, although the attorney was not representing the agency at that moment. This difference makes the present inquiry more difficult. On the one hand, the same policy considerations favoring permitting representation in the proposed suit apply. Lawyers for towns generally advise subordinate town agencies on a regular basis. Disqualification of the towns' regular lawyers when they take positions adverse to a subordinate agency because they represent the subordinate body in other municipal matters would likewise cause havoc in municipal representation. Lawyers for towns would be reluctant to advise subordinate agencies if such representation would cause subsequent disqualification from representation of their principal client, the town. On the other hand, at least in some cases, there may be a substantial effect on the ability of town counsel to represent an agency adequately in the ongoing litigation if town counsel undertakes concurrent representation against it.
We continue to believe that, as in so many other areas of professional responsibility law, the SJC would resolve these conflicting considerations on a case-by-case basis. In so doing, we think that the nature of the litigation would be critical. The strongest case for disqualification is the situation where both matters in litigation involve the credibility or performance of the agency. The ability of town counsel to represent the agency with loyalty and independence of judgment would be compromised if town counsel was at the same time attacking the credibility or performance of the agency. The weakest case for disqualification is the present situation where the pending litigation involves minimal representation at the appellate level on pure questions of law, and the proposed litigation also involves a question of law that apparently does not call into question the credibility or performance of the agency. Undertaking the proposed litigation does not seem to us to pose a substantial threat to the ability of town counsel to represent the agency in the pending lawsuit. Nor does it put the same strain on the loyalty of town counsel as it would if this were two separate private representations because of the close relationship between the agency and the town and because of the ultimate responsibility of both to the public.
A further possibility is that town counsel might be able to withdraw from representation of the agency in the pending lawsuit because (or if) that could be accomplished with little or no prejudice to her client. While a private lawyer may not cure a conflict in situations of simultaneous representation by withdrawal, see Opinion 92-2, the same public policy considerations outlined above might lead the SJC to create an exception in the situation outlined in this inquiry. At the very least, town counsel may wish to discuss this possibility with the agency.
Permission to publish granted by the Board of Delegates on January 14, 1994. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.