Can a board of aldermen's lawyer opine on a proposed code's constitutionality while privately representing tenants and landlords subject to the code?

Plain-English summary

The committee answered three questions from an attorney employed under a personal-service contract as counsel for a board of aldermen, who also privately represented tenants and landlords who would be subject to a proposed city building and housing code he had not helped draft. It concluded he could write the requested opinion on the code's constitutionality, need not reveal his clients' names, and had no duty to volunteer their names absent a request for an opinion.

On the first question, the committee applied DR 5-105 (with EC 5-14 and EC 5-15 on preserving independent judgment and weighing divided loyalty). It reasoned that the attorney would not act as an advocate: his only concern, and the board's, was the code's constitutionality, not how the code applied to any individual client, and nothing indicated the code would unfavorably affect tenants and landlords. So the representation would not require any division of loyalty. The committee noted there would be a conflict if, after passing on constitutionality for the board, the attorney then attacked that constitutionality for a private client, but that was not the case. It added that if the attorney saw any possibility his judgment for a client might be affected, he should make full disclosure to both the board and his clients and could continue with their concurrence.

On the second question, the committee held that even if disclosure were required, the board would be entitled to know only that he represented persons within the regulated area, not the identities of individual tenant or landlord clients, because the board's only interest was the general constitutional question and the clients' identities were immaterial. On the third question, it held that if the attorney had no duties regarding a code under the board's consideration, he had no ethical obligation to reveal the names of clients who might be affected if the code were adopted.

Currency note

This opinion was issued in 1975 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can the board's lawyer opine on a code's constitutionality while privately representing affected tenants and landlords?

A: Yes. The committee held that because the lawyer would not advocate on how the code applied to his clients, only on its general constitutionality, the representation required no division of loyalty under DR 5-105.

Q: Must the lawyer reveal his clients' names to the board?

A: No. The committee held that even if disclosure were required, the board need know only that he represents persons in the regulated area, not the identities of individual clients, which were immaterial to the constitutional question.

Q: When would a conflict arise?

A: The committee said a conflict would arise if, after opining on the code's constitutionality for the board, the attorney then attacked that constitutionality on behalf of a private client.

Background and rules framework

The opinion applied DR 5-105 of the former Code of Professional Responsibility (declining or continuing multiple employment that may adversely affect independent judgment), with EC 5-14 and EC 5-15 on loyalty and divided interests, and addressed whether client identities must be disclosed. The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.6 (confidentiality of information relating to the representation).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (refusing or continuing multiple employment); EC 5-14, 5-15; modern analogs Model Rules 1.7 and 1.6

See also

• KBA Ethics Op. E-127: Firm Practice Before a Board Led by a Member
• KBA Ethics Op. E-129: County and City Attorney
• KBA Ethics Op. E-99: Inquest Counsel Accepting a Committee Appointment

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-106.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-106
Issued: March 1975

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question 1:

May an attorney who is counsel for a Board of Aldermen on a personal service contract write a legal opinion when requested to do so by the board about the constitutionality of a proposed city building and housing code if the attorney represents clients in his private practice who are either tenants or landlords and therefore subject to the code?

Answer 1:

Yes.

Question 2:

In the circumstances of Question 1, must the attorney reveal the names of his clients who are tenants and landlords to the board?

Answer 2:

No.

Question 3:

In the circumstances of Question 1, if the board has not requested a legal opinion from the attorney on the pending building and housing code, must the attorney at this time inform the board of the names of all clients he represents who are either tenants or landlords?

Answer 3:

No.

References:

DR 5-105: EC 5-14, 5-15

OPINION

An attorney employed as counsel for a Board of Aldermen on a personal service contract inquires whether, if requested to do so, he may write a legal opinion for the board on the constitutionality of a proposed city building and housing code in view of his representation in his private practice of tenants and landlords who would be subject to the code. He further inquires whether, with or without a request by the board for a legal opinion on the code, he must reveal to the board the names of his clients who are tenants and landlords. The attorney advises that he did not participate in the drafting of the proposed code.

The rules applicable to this situation are found in DR5-105. It provides:

(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 determined 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 5-105(C).

(C) In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.

(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment.

In commenting on this provision, EC 5-14 notes that maintaining independence requires a lawyer to refuse employment that will dilute his loyalty to a client. In EC 5-15 it is observed that an attorney asked to represent multiple clients having potentially different interests should weigh the effect on his independence of judgment and consider the possibility of creating divided loyalty. Under the former Canons, the test was whether the attorney was being asked to advocate for one client that which representation of another client required him to oppose.

Here, the attorney involved would not be asked to act in the traditional role of advocate. His only concern and that of the board would be the constitutionality of the proposed code. He would not be asked to pass upon any portion of the code as it applies specifically to his individual clients, and in any event there is no indication that the code would unfavorably affect tenants and landlords. Consideration of these factors convinces us that representation of the board in this matter would not result in any necessary division of loyalty. There would of course be a conflict if after passing upon the constitutionality of the code, the attorney then undertook in his private practice to question such constitutionality on behalf of one or more of his clients, but that is not the case here. In the absence of such circumstances we cannot say that his independent professional judgment would be adversely affected by the contemplated representation. It is of course a matter of judgment in each case, but on the facts presented we see nothing that would do violence to the requirements of DR 5-105. If the attorney sees any possibility that his judgment in behalf of a client might be affected, he should make full disclosure of such possibility to both the board and his clients. With their concurrence he could continue in this matter.

In the event disclosure to the board and clients is required, we are asked whether the attorney must also reveal to the board the names of clients who are tenants and landlords. While in such circumstances the board would be entitled to know that he represents those within the area to be regulated, we see no reason for disclosure of the identity of the individual clients who are either tenants or landlords. The board's only interest is the general question of constitutionality. Without additional facts not presented by this inquiry, the identity of clients affected by the legislation is immaterial.

The third question presents similar considerations. If an attorney on contract to a board has no duties with respect to a code under consideration by the board, we find no ethical obligation upon him to reveal the names of clients who might be affected in the event the code is adopted.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.