1988-89-03.

• Case Date: October 13, 1988
• Court: New Hampshire

New Hampshire Ethics Opinion 1988. 1988-89-03. NEW HAMPSHIRE BAR ASSOCIATIONEthics Committee Formal Opinion #1988-89/3Town Moderator Representation of Clients Before the Same Town BoardOctober 13, 1988RULE REFERENCES:*Rule 1.7 *Rule 1.8 *Rule 1.11 *Rule 1.11A *Rule 1.11A(b)(3) *Rule 1.11A(b)(5) *Rule 8.4(d)SUBJECTS:*Adverse Effect on Professional Judgment *Adverse Representation *Conflict of Interest *Government Representation *Lawyer Official *Public OfficialsSTATUTORY REFERENCES:*RSA 40:3 *RSA 40:4 *RSA 40:4-B *RSA 40:8 *RSA 669:62 *RSA 672:8 *RSA 675:3 *RSA 675:4 *RSA 677:2-4CODE REFERENCES:*DR5 *DR5-105 (A & B) *DR9 *DR9-101ANNOTATION:There is no outright prohibition against an attorney who is town moderator also representing clients before the local land use boards of that municipality. However, the attorney should be alert to particular situations which may require that the attorney decline representation of a particular client, call for the appointment of a moderator pro tempore, or both. Conflict of interest questions must be resolved by resorting to the general conflict of interest rule (Rule 1.7), the listing of prohibited transactions in Rule 1.8, and with respect to potential conflicts in the public sector, the rules governing successive government and private employment and the conduct of lawyer officials (Rule 1.7, Rule 1.8; Rule 1.11; Rule 1.11A). Generally, a lawyer-moderator may discharge responsibilities to both the town and to clients in matters involving the town's zoning board of adjustment or planning board, without: 1) direct adversity or material limitation; or 2) entering into prohibited transactions (Rule 1.7; Rule 1.8) Rule 1.11A would not prevent a lawyer-official from functioning both as an attorney for private individuals appearing before local land use boards of a town and serving as a moderator for the town, in most circumstances. (Rule 1.11A.) Rule 1.11A(b)(3) speaks only of appointed officials and is inapplicable to elected land use board members. (Rule 1.11A; Rule 1.11A(b)(3)). A lawyer-official must take great care to avoid conflicts of interest. (Rule 1.7; Rule 1.11A(b)(5).) A lawyer-official must not state or imply an ability to influence government in derogation of Rule 8.4(d). (Rule 8.4(d).)QUESTION:May an attorney who is a town moderator represent clients before the planning board and zoning board of...