Editor's Note: Refer to Rule 1.7.
CONFLICT OF INTEREST- There is no conflict of interest per se for a law firm to represent both a county Board of Supervisors and a Municipality within said county; nor is there a conflict of interest per se for a law firm to represent the Board of Supervisors for two different counties.
The Ethics Committee of the Mississippi State Bar has been asked to render an opinion on the following inquiry:
Law Firm A represents the City Council for Reykajavick and also represents the Board of Supervisors for Red County, the County in which Reykajavick is located.
Is it unethical for Firm A to represent both the City and the County Board of Supervisors?
Is it unethical for Firm A to represent the Board of Supervisors for two different counties?
If the Ethics Committee is of the opinion that no conflict exists per se, what action should the firm take should an actual conflict arise and is the entire firm disqualified from participation in the action involving the conflict?
This inquiry can be answered in light of DR 5-101(A),(B) and (C) which are as follows:
(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105 (C).
(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected
by his representation of another client, except to the extent permitted under DR 5 101(C).
(C) In the situations covered by DR 5-101(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interests of each and if each consents to the representation on the exercise of his independent professional judgment on behalf of each.
Prior to our adoption of the Code of Professional Responsibility, attorneys were bound under the Canons of Professional Ethics. Canon 6 thereof gave a concise definition of DR 105 as follows:
It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
EC 5-15 gives guidance as to when as attorney may properly represent multiple clients, and states as follows:
. . . 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 client.
Informal opinion 518 rendered November 27, 1982, by the Committee on Ethics and Professional Responsibility of the American Bar Association found that it would not be unethical for an Attorney to represent two municipalities with regard to drafting and execution of contracts and agreements between both municipalities for sewer connections and installations, provided consent was given by municipalities after a full disclosure of all facts indicative of a conflict of interest. However, that opinion also noted that an attorney must always consider whether his proposed conduct will uphold the honor and maintain the dignity of the profession and that instances may
arise where because of local politics or other factors it would not be proper for the attorney to represent both governmental entities. Nevertheless, under the facts stated, the ABA Committee found no conflict.
Ethics Committees of several other states also provided guidance in this area. Opinion E-152 of the Kentucky State Bar, rendered in 1986, found that the interests of a County Zoning Commission and a City in that county are not inherently adverse. Therefore, a city attorney's partner may serve as counsel for the County Zoning Commission. The New York State Bar Opinion 468 of May 18, 1977, found that it is not per se improper for a lawyer to be both town attorney and attorney for a village located within the town. A lawyer, however, should not take on such a dual role if there is a substantial likelihood of litigation between the two municipalities or if there is a possibility of negotiations between the two, the outcome of which could conceivably serve to benefit one at the other's expense. It appears that the interests of the municipalities will vary only slightly; the lawyer may represent both.
We therefore, conclude that it is not per se a conflict of interest and unethical and improper for a law firm to represent a county Board of Supervisors and a Municipality located within that county; nor is it improper for a firm to represent the Board of Supervisors for two different counties. Should any actual conflict arise, the law firm should request each of the clients to obtain separate counsel to represent their interests in the matter a conflict exists. Under DR 5-101[D] the Committee is of the opinion that the entire firm would be disqualified from participation in any action over which a conflict would arise.