ETH 1130
Ethics Opinion 1130
New York Ethics Opinion
New York State Bar Association Committee on Professional Ethics
July 12, 2017
Topic:
Conflicts; Town Attorney
Digest:
A nonconsentable conflict exists when one member of a law
firm acts as Town Attorney on, among other things, planning
and zoning matters and another lawyer in the firm seeks to
represent an applicant before the Town's planning board.
Rules:
1.0 (f), (r) & (w), 1.7(a), 1.7(b)
FACTS
1. The
inquiring law firm represents a Town. One of the firm's
partners serves as Town Attorney, with principal
responsibility for advising the Town Board, while another
partner, as Deputy Town Attorney, chiefly advises the
Planning Board and the Zoning Board of Appeals. Another
lawyer affiliated with the firm ("Lawyer X")
concentrates in, among other things, zoning matters for
private clients.
2. The
inquiry arises out of a plot of land located within the Town
in close proximity to residential properties and a school.
Another government entity (not the Town) once owned the plot
but has since sold it. Upon this sale, the Town changed the
zoning of the plot from Limited Industrial to Residential,
apparently to prevent expanded industrial use of the plot
owing to limited access to the plot. Apart from a railway
line, the only access is over a residential street.
3.
Recently, a company ("Owner") has acquired a
portion of the plot and proposes to expand its existing
business there in what the inquirer characterizes as a
"low-intensity" use. The inquiry states that the
Town Board supports this proposal as long as the Owner limits
its use of the plot to the proposed low-intensity use, and
therefore intends to return the plot's zoning to Limited
Industrial. Lawyer X proposes to represent the Owner in the
rezoning application to the Planning Board.
4. The
plot cannot be rezoned unless the Town Board adopts a local
law. Following referral to the County Planning Department for
a review and recommendation, the matter will go to the Town
Planning Board for a site plan review. The principal function
of a planning board "is to approve site plans,
subdivision plats, and conditionally permitted uses of
property. Town Law §§ 274-a, 276." N.Y. State
630 (1992). Thus, two of the firm's lawyers would be
acting for the Town and its Planning Board on the
application, while another lawyer in the same firm would be
acting for the Owner as applicant.
5. The
inquirer expresses confidence that each lawyer will exercise
independent professional judgment for the lawyer's
clients, and states that each of the clients is prepared to
sign a waiver of any conflict.
QUESTION
6. May
a lawyer in a firm act for a private client in applying to
the Town Zoning Board for zoning changes, where other members
of the firm currently serve as Town Attorney and Deputy Town
Attorney, with responsibility for advising the Town on zoning
and planning matters, as long as the Town and the private
client each give informed consent?
OPINION
7. This
Committee interprets the New York Rules of Professional
Conduct (the "Rules"). We assume for purposes of
this opinion that the proposed representation would not
violate any applicable law governing Town Attorneys and their
firms, including, but not limited to, the Public Officers
Law, General Municipal Law, the Town Law, and the Town's
own Ethics Code. See, e.g.. General Municipal Law
§§ 800 - 812 (Conflicts of Interest of Municipal
Officers and Employees). We do not opine on such questions.
Concurrent
Conflicts of Interest
8.
Absent informed consent from each affected client. Rule
1.7(a) prohibits concurrent representations when a reasonable
lawyer...
