Citation Numbers: 87 Op. Att'y Gen. 126
Judges: J. JOSEPH CURRAN, JR.
Filed Date: 8/27/2002
Status: Precedential
Modified Date: 7/5/2016
Dear John B. Norris, III, Esquire
Your predecessor asked whether it would be a "conflict of interest" for one attorney from the Office of the County Attorney to represent a County official or agency in an administrative appeal before the County Board of Appeals while another attorney from that Office advises the Board of Appeals.
Issues of legal ethics, as well as due process concerns, may be raised when two attorneys from the same government office act, respectively, as adviser to an administrative tribunal and as advocate before that tribunal in the same matter. However, in our opinion, those concerns are resolved if the County Attorney's Office employs procedures designed to ensure the fairness of the administrative process.1
The St. Mary's County Board of Appeals is established under the zoning enabling law set forth in the Annotated Code of Maryland, Article
The jurisdiction of the Board of Appeals is limited to land use matters. It decides applications for special exceptions, conditional uses, and variances as a matter of first impression. See
Article
See Article
The Board of Appeals conducts quasi-judicial hearings that are open to the public and at which any person may testify. The Chairman of the Board is authorized to administer oaths and compel attendance of witnesses. Zoning Ordinance § 20.3(5). We understand that a typical appeal is conducted as a de novo adversarial hearing. The Planning Director presents a planning staff report that outlines the basis for his or her decision. Testimony and other evidence is received from applicants and other interested parties.
Witnesses are cross-examined. Closing statements are usually made. In addition, the floor is opened to general public comment.
Following the hearing, the Board of Appeals may affirm, reverse, or modify, in whole or in part, the order or decision under review.4
In addition, the Board may issue its own order or decision as it has "all the powers of the administrative officer from whom the appeal is taken." Article
In light of the complexity of land use decisions and the importance of ensuring proper administrative proceedings, the assistance of counsel is valuable and, in some cases, essential for both the County agencies that participate in the proceedings and the Board of Appeals itself.
B. Office of the County Attorney
The County Attorney's Office is small. In recent years it has consisted of two or three full-time attorneys. The Office represents the Board of County Commissioners, the County governing body, as well as the agencies, boards, and commissions that are part of the County government. Included among those entities are agencies involved in land use the Board of Appeals, the County Planning Commission, and the Department of Planning and Zoning.
When a decision of a County agency such as the Planning Department is appealed to the Board of Appeals, both the agency and the Board generally require the assistance of counsel. We understand that, typically, the senior attorney in the County Attorney's Office advises the Board of Appeals and another attorney from the Office represents the County agency whose decision is the subject of the appeal.
On occasion, however, when the budget permits, the Office of the County Attorney has engaged the services of a contract attorney to advise the Board of Appeals in place of a full-time attorney from the County Attorney's Office.
A. Rules of Professional Conduct
The ethical rules governing Maryland attorneys are set forth in the Maryland Rules of Professional Conduct, as adopted by the Court of Appeals. Maryland Rule 16-812, Appendix. There is no question that an attorney for a government entity, such as St. Mary's County, is subject to those rules.
1. Conflicts of Interest
Rule 1.7 sets forth the general rule on conflicts of interest:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.
Other portions of the rule concern the imputation of conflicts when an attorney leaves or joins a firm. (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.
(c) The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved.
In some circumstances, even the appearance of a conflict may result in a violation of Rule 1.7. Attorney Grievance Comm'n v. Hines,
Subject to limited exceptions, when a lawyer is disqualified under Rule 1.7 from representing a client, other lawyers in the same law firm are also disqualified. See Rule 1.10.5 "Firm" or "law firm" is defined for purposes of the Rules as "a lawyer or lawyers in a private firm, lawyers employed in the legal department of a corporation or otherorganization and lawyers employed in a legal services organization." Maryland Rules of Professional Conduct, Preamble: Terminology; Rule 1.10comment (emphasis added). A county attorney's office appears to come within this definition. See Maryland State Bar Association, Committee on Ethics, Ethics Docket 89-3 (concluding that county attorney's office is a "firm" for purposes of Rule 1.10 in addressing conflict involving county attorney's part-time private practice).
2. Application of Conflicts Rules to Government Attorneys
The Maryland Rules of Professional Conduct, however, acknowledge that the conflicts rules may not apply to government lawyers in the same way they do to attorneys in private practice. The introductory section of the rules states that "lawyers under the supervision of [government legal officers] may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. They also may have authority to represent the `public interest' in circumstances where a private lawyer would not be authorized to do so. These Rules do not abrogate any such authority." Maryland Rules of Professional Conduct,Preamble: Scope. Disqualification by imputation is an area where government law offices have traditionally been afforded different treatment.6 This is due, at least in part, to the nature of the government client.
3. Identifying the Government Attorney's Client
For a government attorney, the "client" may be viewed more broadly than the specific agency or official that the lawyer is representing or advising. Rule 1.13 of the Rules of Professional Conduct concerns organizational clients. It provides that "[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." Rule 1.13(a). The rule further provides that a lawyer representing an organization may also represent its constituents, subject to the conflict rules in Rule 1.7. Rule 1.13(e). The commentary to Rule 1.13 states that, while the rule generally applies to government organizations, the "duties of lawyers employed by the government. . . may be defined by statutes and regulation." Rule 1.13 comment. The commentary also acknowledges that "defining precisely the identity of the client and prescribing the resulting obligations of such lawyers may be more difficult in the government context. Although in some circumstances the client may be a specific agency, it is generally the government as a whole." Id. See also 2 Restatement (Third) of the Law Governing Lawyers§ 97 Comment c (2000) ("client" of government attorney may vary, depending on circumstances such as terms of attorney's employment, scope and nature of services, particular regulatory arrangements relevant to attorney's work, and history and tradition of the office).
In a prior opinion, this Office discussed the "client" of the St. Mary's County Attorney. 82 Opinions of the Attorney General ___ [Opinion No. 97-028 (December 16, 1997)]. That opinion primarily concerned whether the County Attorney could appropriately invoke the attorney-client privilege to withhold information from public disclosure. Citing Rule 1.13, the opinion concluded that the corporate entity that is, the County government as a whole is the County Attorney's client, that various officials and employees of the County are agents of that entity when acting within the scope of their authority, and that, under appropriate circumstances, the County Attorney may be required to assert the attorney-client privilege or other privileges on behalf of the County. However, that opinion did not address whether the County Attorney might have a conflict in representing diverse units of County government, such as the Board of Appeals and a County department whose decision is at issue before the Board.
In general, a unit of county government, such as a planning department, is considered an agent of the county and not a distinct client for purposes of conflict of interest analysis. However, the courts have recognized an exception to this general rule "when the agency lawfully functions independently of the overall entity." See CivilService Comm'n of San Diego County v. Superior Court,
While the St. Mary's County Board of Appeals is a County agency, it is not an agent of the County Commissioners in the same respect as the Planning Department. Although the members of the Board of Appeals are appointed by the County Commissioners, the Board is a quasi-judicial body that exercises independent decision-making authority.7 Only a court can reverse a decision of the Board of Appeals.
Thus, a reasonable argument can be made that the Board should be considered a separate client from the Planning Department. If the County Attorney's representation of the Board were "directly adverse to" or "materially limited by" the Office's representation of the Planning Department, there likely would be a conflict within the meaning of Rule 1.7. But that conclusion would not resolve the propriety of dual representation.
Even if two government entities are considered separate clients under the Rules of Professional Conduct, other law creating a government law office or describing its duties may authorize or require dual representation. Moreover, the "conflict" addressed by those rules concerns only the possibly divergent interests of the two government entities — a conflict that can be waived by the government entities themselves. The Rules of Professional Conduct do not address the separate issue of fairness to third parties who are involved in an administrative proceeding involving the two entities.
B. Fairness of Administrative Process
The propriety of the simultaneous representation by a government law office of several agencies does not depend entirely on whether possibly distinct agency clients might have divergent interests that the law recognizes. In particular, the propriety of one lawyer from a county attorney's office advising an administrative tribunal, while another lawyer acts as advocate before that tribunal, may depend on whether the dual representation undermines the integrity of the administrative process.
In a 1974 opinion, Attorney General Burch considered whether it was proper for one Assistant Attorney General to act as legal adviser to the State Board of Public Accountancy while another presented evidence before the Board during an administrative proceeding. After reviewing the constitutional role of the Attorney General and a statutory requirement that agencies obtain legal representation from the Attorney General's Office, he concluded that "[t]he roles of presenter of evidence and legal adviser. . . are duties imposed by law and without impropriety when thereis no unfairness in fact." 59 Opinions of the Attorney General 10, 14 (1974) (emphasis added), citing Reddick v. State Commissioner ofPersonnel,
The Court of Special Appeals reached a similar conclusion nine years later in Comm'n on Medical Discipline v. McDonnell,
A similar conclusion was reached in a California decision, which held that an asserted conflict of interest within a government law office would be resolved if appropriate screening mechanisms were adopted.Howitt v. Superior Court,
The California Court of Appeal held that the county counsel's office could represent a county agency in an adversarial hearing while, at the same time, serving as legal adviser for the decision-maker, provided that the representation followed certain guidelines.
C. Summary
In our view, the Rules of Professional Conduct do not preclude one attorney in the County Attorney's Office from representing the County Planning Director or the Planning Department before the Board of Appeals while another attorney from that Office serves as counsel to the Board. Although the County Attorney is not a constitutionally created office, the County Attorney's function within the County government is analogous to the role of the Attorney General in State government. In our view, that function justifies a county law office's dual roles in administrative proceedings at the county level, provided there are procedures to ensure the fairness of the administrative process.
To avoid the appearance of a conflict or actual unfairness, the County Attorney's Office could adopt and follow certain protocols when one attorney in the Office acts as adviser to the Board while another represents a county agency in an appeal before the Board. For example, such protocols could proscribe ex parte communications between the two attorneys regarding issues of the law or facts related to a particular matter before the Board, provide for each attorney to maintain separate files on Board matters that would not be accessible to the other attorney, and ensure that support staff protect confidentiality. The protocols should be designed to separate the roles of agency advocate and Board adviser and to preserve the integrity of the administrative process.
However, procedures should be employed to separate the two roles and to ensure the fairness of proceedings before the Board.
J. Joseph Curran, Jr. Attorney General
William R. Varga Assistant Attorney General
Robert N. McDonald Chief Counsel Opinions Advice
*Page 137
Civil Service Commission v. Superior Court , 209 Cal. Rptr. 159 ( 1984 )
Howitt v. Superior Court , 5 Cal. Rptr. 2d 196 ( 1992 )
McDonnell v. Commission on Medical Discipline , 301 Md. 426 ( 1984 )
Attorney Grievance Commission of Maryland v. Hines , 366 Md. 277 ( 2001 )
Consumer Protection Division Office of the Attorney General ... , 304 Md. 731 ( 1985 )
Reddick v. State Commissioner of Personnel , 213 Md. 195 ( 1957 )