Ethics Opinion

Opinion 2014-3

March 2014

Summary: The Massachusetts Rules of Professional Conduct do not prevent a lawyer from representing a client at a municipal planning agency's land use hearing when a member of the lawyer's firm is also a member of the municipality's Board of Zoning Appeals since the BZA has no interest or jurisdiction with respect to the matter.

Facts: Attorney inquires about her ability to represent a client at a land use hearing before a municipal planning agency when a firm member is also a member of the municipality's ZBA. The inquirer reports that in her particular municipality the ZBA has no interest in the matter and no jurisdiction with respect to any decision that the planning agency might make.

Discussion: This Committee has given advice several times with respect to issues involving representation of a municipal agency when a firm is acting adversely to the interests of other another agency of the municipality at the same time. We have followed the lead of the Supreme Judicial Court, which has discussed such problems on an ad hoc basis after noting that public interest considerations require that the rules governing representation of conflicting interests apply less strictly when representation of municipal entities (as opposed to private clients) is involved. See Scope Note 4, Massachusetts Rule of Profession Conduct and our Opinions 89-2 and 94-2, citing relevant Supreme Judicial Court opinions. Indeed, in Opinion 89-2, we advised that in limited circumstances it may be possible for a law firm to act on behalf of a municipal agency simultaneously with acting adversely to the same agency in an unrelated matter.

This inquiry does not involve two representations.. Rule 1.7, our conflict of interest rule, is nevertheless relevant because it provides:

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

  1. the lawyer reasonably believes the representation will not be adversely affected; and
  2. the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

In addition, Rule 1.10(a) provides that "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), or 1.9."

These sections require consideration whether the firm's proposed representation of a client before the municipality's agency may be "materially limited" by the responsibilities of the firm member to the Town ZBA. Based on the inquirer's representation that the matter she has been asked to undertake has no current or future relationship to any jurisdiction of the ZBA, the Committee sees no basis to believe that there is any problem under Rule 1.7(b). Decisions of the Supreme Judicial Court indicate that in the situation described, the municipality's ZBA and planning agencies would be treated as separate entities. See Filippone v. Mayor of Newton, 392 Mass. 622 (1984) and Board of Public Works v. Wellesley Board of Selectmen, 377 Mass. 621 (1977), as discussed in our Opinion 89-2. In giving this advice the Committee assumes that the firm member who is also a member of the ZBA has no confidential information of the ZBA that is relevant to the potential representation.

The Committee also needs to mention that it is not authorized under its Rules to give advice concerning matters of substantive law and so it expresses no opinion as to whether any provision of ch. 268A or any other statute or municipal regulation governing the activity of a member of the Zoning Board of Appeals is relevant to the potential representation.

This advice is that of a committee without official government status.

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on May 8, 2014.