Opinion 655

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #655 (18-93)
Topic: Conflict of Interest; town zoning board member; representation against the town on personal injury claim

Digest: Absent evidence of improper influence or impaired professional judgment, not improper for attorney-member of town zoning board of appeals to represent personal injury client in litigation against the town.
Code: DR 1-102(A), 1-102(A)(5), 5-101(A), 5-105(C), 8-101(A)(2); EC 8-8, 9-2

QUESTION

May an attorney-member of a town zoning board of appeals represent a private client as a plaintiff in a personal injury litigation against the town where the town employs special outside counsel for the defense of personal injury claims?

OPINION

In N.Y. State 484 (1978), while recognizing “that a lawyer-member of a Zoning Board of Appeals ethically bears no lesser burden than its counsel in representing private clients before other agencies of the town,” this Committee concludedthat a lawyer-member of a town’s Zoning Board of Appeals, as well as his partners and associates, should be at liberty to represent private clients before other agencies of the town in matters unrelated to zoning where it is clear that such agencies are not functionally related to the Zoning Board of Appeals.We find no persuasive reason to apply a different ethical rule where the lawyer- member of the zoning board proposes to represent a private client as a plaintiff in personal injury litigation against the town, particularly where the town employs special outside counsel to defend personal injury claims. (*1)The two disciplinary rules directly applicable to the inquiry are DR 8-101(A)(2), which prohibits a lawyer from using his or her position as a public official “to influence, or attempt to influence, a tribunal to act in favor of the lawyer or of a client,” (*2) and DR 5-101(A), which forbids a lawyer from accepting employment “if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests.”As to the former, a member of the zoning board of appeals is not like a deputy supervisor, who is “charged with preserving the funds of the town,” “would be very likely to have an influence on the disposition of litigation concerning the town,” and whose retention to represent a private client in personal injury litigation against the town would be “highly suggestive of an improper motive on the part of the deputy’s client” and connote “an expectation that the client will derive some special benefit because of his lawyer’s official position.” N.Y. State 510 (1987) (improper for deputy town supervisor to represent clients in tax certiorari proceedings or other litigation against the town). Nor is there any obvious relationship between “the proposed representation [and] the nature of the lawyer’s public function.” See N.Y. State 603 (1989) (part-time city attorney may not represent private clients before city agencies for which the city attorney’s office provides legal representation or assistance), or any “concurrent, overlapping and intertwined” synthesis between the powers of a zoning board of appeals and the interests of a town in defending personal injury claims. N.Y. State 292 (1975) (attorney for town zoning board of appeals may not represent a private client in a zoning change application to the town board).We noted in N.Y. State 630 (1991) that a board of zoning appeals is a statutory body that acts “as a ‘safety valve’ for the zoning system” and hears appeals taken “by an officer, department, board or bureau of the town,” as well as by aggrieved property owners. Absent evidence that a lawyer-member of a town zoning board of appeals is likely to influence or attempt to influence the town to act favorably in the personal injury lawsuit, or is trafficking on the town position in order to obtain a large volume of personal injury work, and given the lack of any apparent “danger of cross-use of confidential information” or other compromise of the duty “to maintain confidences and secrets,” see N.Y. State 580 (1987) (municipal bond counsel may represent private clients in administrative or judicial proceedings against a municipal industrial development agency, but not against the municipality itself), the duties and powers of a member of a zoning board of appeals are so functionally divorced from the defense of personal injury lawsuits that there is no basis for a per se rule of disqualification under DR 8-101(A)(2). The fact that the town employs special outside counsel to defend personal injury claims underscores the separation and widens the gap between the zoning board and the defense of personal injury claims.The absence of any functional relationship between the work of a zoning board of appeals and personal injury litigation also impels us to reject a per se rule of disqualification under DR 5-101(A), as we perceive no obvious danger (*3) that the exercise of professional judgment by a lawyer-member of a board of zoning appeals on behalf of his private client or with respect to his zoning board judgments “will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests.” As we noted in N.Y. State 484, at 2:Indeed, there is much that would seem to compel a different rule. The Code, for example, reminds us that it is “highly desirable” for lawyers to hold public office. EC 8-8. In this light, to disqualify lawyer-members of municipal boards from handling all matters involving agencies of the municipality in which they serve, without reference to the nature of their public office or private employment, would seem unduly restrictive and almost certain to discourage that which the Code expressly seeks to promote.

CONCLUSION

With the qualifications set forth above, the question posed is answered in the affirmative.

NOTES

(*1) Whether the town is self-insured or covered by liability insurance is irrelevant to our analysis.(*2) DR 8-101(A) (1) is not directly applicable, as it proscribes use of a public position to obtain “a special advantage in legislative matters” (emphasis added) . Of course, a lawyer who uses his or her position as a member of the zoning board of appeals to gain “a special advantage” for a personal injury client in litigation against the town would violate DR 1-102(A)(5) by engaging in conduct “that is prejudicial to the administration of justice,” and would run afoul of EC 9-2 (by diminishing “public confidence in the integrity and efficiency of the legal system and the legal profession.”)(*3) This Committee has applied the “obviousness” test of DR 5-101(C) to situations where DR 5-101(A) is implicated. See, e.g., N.Y. State 516 (1980).

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