Opinion 468

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #468 – 05/18/1977 (51-77)

Topic: Conflict of Interests; Town Attorney; Village Attorney
Digest: Not improper per se for lawyer to be both attorney for town and village located within town
Code: EC 5-15

QUESTION

May a lawyer at the same time be both town attorney and attorney for a village located within the town?

OPINION

It is not per se improper for a lawyer to be both town attorney and attorney for a village located within the town since there is no inherent conflict between the two positions.Nevertheless, where the circumstances are such that the two positions may foreseeably conflict with one another on specific matters, the lawyer may yet be required to refrain from undertaking the representation of both municipalities. In this connection, EC 5-15 explains in relevant part:”If a lawyer is requested to undertake . . . representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts . . . the employment. He should resolve all doubts against the propriety of the representation. A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in representing in litigation multiple clients with potentially differing interests. *** On the other hand, there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests in matters not involving litigation. If the interests vary only slightly, it is generally likely that the lawyer will not be subjected to an adverse influence and that he can retain his independent judgment on behalf of each client; and if the interests become differing, withdrawal is less likely to have a disruptive effect upon the causes of his clients.”Consistent with the principles set forth in EC 5-15, we believe that a substantial likelihood of litigation between the two municipalities should preclude acceptance of the proposed dual role. See, Ore. Op. No. 101 (1961), indexed at 3937, 0. Maru, Digest of Bar Association Ethics Opinions (1970), hereinafter “Maru’s Digest.” If litigation is unlikely, but there still exists the possibility of negotiations between the two which would conceivably serve to benefit one at the other’s expense, the lawyer should similarly reject the offer to serve as attorney for both municipalities. See, N.J. Op. 29 (undated), indexed Maru’s Digest at 1515; Wash. Op. 104 (1962), indexed Maru’s Digest at 4622.The ability of the lawyer to withdraw from the representation of one or both of the municipalities on specific matters, after first accepting a dual role, is of little consequence to the present issue. If there is a substantial likelihood that the lawyer will in fact be required to withdraw, he should avoid the problem altogether by accepting only one of the two positions.Where it appears that the interests of the two municipalities will vary only slightly, again consistent with the principles set forth in EC 5-15, the lawyer may properly undertake to represent both. See, ABA Inf. 518 (1962).

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