Posted By: Professor Patricia E. Salkin
Most municipalities across the country are small and cannot afford separately retained legal counsel for its legislative body and all of its various boards, commissions and departments. While best practices might dictate separate and specialized legal counsel for the executive and legislative branches of municipal governments, as well as for the planning and zoning boards (where a disproportionate amount of municipal litigation occurs), the reality is that only the larger city and suburban towns routinely operate this way. There are no doubt, however, instances where the interests of two or more entities within the same municipality are in conflict, and in these cases, it is clear that each entity is entitled to its own independent legal counsel. Numerous state bar association opinions speak to this issue (e.g., when the zoning board is being sued by the legislative body). Recently, the Maine Supreme Court had occasion to address the issue of whether it is a violation of the Rules of Professional Conduct for a town attorney to represent the town in litigation stemming from advice the attorney gave to the zoning board of appeals. The facts are as follows:
On the advice of legal counsel, the Zoning Board of Appeals of the Town of Westport Island refused to grant standing to residents wishing to challenge the planning board’s approval a permit requested by the Town Board to make improvements to the public boat-launching site. Residents opposed to the issued permit argued, among other things, that the Town Attorney should be barred from representing the Town in litigation over the standing issue since he served as an advocate and legal advisor to the zoning board on the same matter.
The Court concluded that while the Maine Bar Rules do prohibit attorneys from serving certain dual roles, in this case the representation was not in conflict. Specifically, Rule 3.4(g)(2)(i) states:
A lawyer shall not commence representation is a matter in which the lawyer participated personally and substantially as a judge or judicial law clerk. A lawyer shall not commence representation in a matter in which the lawyer participated personally and substantially as a nonjudicial adjudicative officer, arbitrator…or law clerk to such a person, unless all parties to the proceeding give informed consent.
The Court explained that since the zoning board is a branch of the Town, the attorney was simply doing his job as the Town’s legal representative when he advised the zoning board on the standing issue. The Court said that the attorney did not act in a judicial or quasi-judicial capacity and hence the Bar Rule was not implicated here and the motion to disqualify was properly denied.