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:
- the lawyer reasonably believes the representation will not be
adversely affected; and
- 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.