071217 NYEO, ETH 1130

Docket Nº:ETH 1130
Case Date:July 12, 2017
Court:New York
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...

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