CONFLICT OF INTEREST- Employee of law firm may serve as member of the Civil Service Commission of a City even though, from time to time, the firm represents the City.
The Ethics Committee of the Mississippi State Bar has been asked to render an opinion as to whether and under what circumstances an active Associate of a law firm may serve as a member of the Civil Service Commission when the firm has in the past, or may in the future, represent authorities, districts, boards and other public entities affiliated with the City that directly or indirectly affect the City, and whether serving as a member of the Civil Service Commission under the hereinabove stated conditions would violate any Rule of Professional Conduct.
Rules 1.7 (Conflict of Interest: General Rule), 1.10 (Imputed Disqualification: General Rule) and 1.11 (Successive Government in Private Employment), of the Mississippi Rules of Professional Conduct are determinative of the issues. In addition, previous Ethics Opinions Numbers 26, 28 and 62 are relevant. With the understanding that the law firm's representation does not extend into matters actually touching the Civil Service Commission (for example, proceedings from, appeals to, or other challenges to actions of the Civil Service Commission), no Rule of Professional Conduct would be violated by the appointment of an Associate of a law firm to the Civil Service Commission of the City.
Rule 1.7 of the Mississippi Rules of Professional Conduct provides generally that a lawyer shall not represent a client where the representation would be adverse to other clients. It is assumed that, in pursuing the duties of the Commission and in the practice of law, the lawyer would comply with Rule 1.7 as specific issues were presented.
Rule 1.10 of the Mississippi Rules of Professional Conduct provides generally that no lawyer in a firm shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so. It is assumed that, in pursuing the duties of the Commission and in the practice of law, the lawyer and the firm would comply with Rule 1.10 as specific issues were presented.
Rule 1.11 provides generally that a lawyer should not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. It is assumed that, in pursuing the duties of the
Commission and in the practice of law, the lawyer and the firm would comply with Rule 1.11 as specific issues were presented.
Ethics Opinion Number 26 states "A lawyer who is a public officer or attorney for a public body, whether full-time or part-time, and his partners and associates should not engage in activities in which their personal or professional interest are, or foreseeable may be, in conflict with the official duties of the Lawyer/Official.". Ethics Opinion Number 28 mandates "Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client.". Ethics Opinion Number 62 concludes "While the Committee is of the opinion that a Lieutenant Governor could engage in dual employment while serving as Lieutenant Governor of the State without violating the disciplinary rules and principals of the Code of Professional Responsibility, under the circumstances and in the situations discussed hereinabove, the Committee is of the opinion that the willingness of the Lieutenant Governor to forego private employment in the areas indicated and the structuring of the firm so as to insulate him from all connection with the firm's representation of and against or before legislative or executive branches of the State government dispels any conceivable appearance of impropriety." ( It should be noted that the Canons of Ethics, including the Canon which required an attorney to avoid even the appearance of impropriety, have been replaced with the Mississippi Rules of Professional Conduct, which became effective on July 1, 1987. The Mississippi Rules of Professional Conduct have no admonition for attorneys to avoid the appearance of impropriety).
Finally, both the law firm and the Associate being considered for membership in the Civil Service Commission should keep in mind Rule 8.4, which provides that "[i]t is professional misconduct for a lawyer to state or imply an ability to influence improperly a government agency or official."
With the foregoing qualifications in mind, the Ethics Committee finds that it is permissible for a member of the law firm to serve on the Civil Service Commission of the city, even though the firm may represent the city with respect to various matters