Can a city attorney represent a landowner against the city's urban renewal commission in a condemnation case?

Plain-English summary

The committee considered whether a city attorney could represent a landowner whose property was being taken through condemnation by the city's urban renewal commission. The city attorney noted the commission had its own private attorney, that the city paid a substantial portion of the cost of the commission's renewal contracts, and that condemned title sometimes passed to the city and sometimes to the commission before being reconveyed for redevelopment. The committee answered yes.

The committee turned first to the statutory authority. Under KRS Chapter 99, a city's legislative council may create an urban renewal agency, and once created the agency is a separate corporation from the city, with a separate governing body, free to employ its own counsel. While the city may assist the agency, the committee found no indication that the city attorney would be called upon, or even permitted, to advise the agency in connection with such assistance, and that was especially so here because the agency already had its own legal counsel.

In those circumstances the committee found no ethical conflict preventing the city attorney from accepting the employment. It noted that impropriety would exist only if the city attorney undertook to counsel the agency, because then the interests of the two parties would be inconsistent.

Currency note

This opinion was issued in 1974 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 Treat this page as historical context, not current guidance.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 a city attorney represent a landowner against the city's urban renewal commission?

A: Yes. The committee held there was no ethical conflict because the commission is a separate corporation with its own counsel, which the city attorney neither advises nor is permitted to advise.

Q: When would a conflict arise?

A: The committee held that impropriety would exist only if the city attorney undertook to counsel the agency, since the interests of the agency and the landowner would then be inconsistent.

Q: Did the city's funding of the commission's work create a conflict?

A: No. Although the city paid much of the cost of the commission's renewal contracts, the committee relied on the agency's separate corporate status and its own counsel in finding no conflict.

Background and rules framework

The opinion turned on the separate corporate status of the urban renewal agency under KRS Chapter 99, applying the conflict-of-interest principles of the former Code of Professional Responsibility (DR 5-105 on representation involving differing interests). The modern analogs are Model Rule 1.7 (concurrent conflicts of interest) and Model Rule 1.11 (conflicts for current government lawyers).

Citations and references

Rules of Professional Conduct:

• DR 5-105 (representation involving differing interests); modern analogs Model Rules 1.7 and 1.11

Statutes:

• KRS Chapter 99 (urban renewal; the agency as a separate corporation with its own counsel)

See also

• KBA Ethics Op. E-106: Board Counsel With Private Clients Subject to a Code
• KBA Ethics Op. E-104: Former City Attorney Switching Sides
• KBA Ethics Op. E-129: County and City Attorney

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-080.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-80
Issued: January 1974

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:

May a city attorney accept employment to represent a landowner whose property is being taken through condemnation proceedings by the urban renewal commission of that city?

Answer:

Yes.

References:

KRS Chapter 99

OPINION

The Ethics Committee has received a request for advice from a city attorney as to whether he may ethically represent a landowner whose property is being taken through condemnation proceedings by the urban renewal commission of that city. He notes that the commission has its own private attorney, and that a substantial portion of the cost of contracts executed by the commission for renewal work is paid by the city. In some instances title to property taken by condemnation is conveyed to the city, while in other cases title is taken in the name of the commission and then reconveyed to local citizens for redevelopment.

For answer to this inquiry, resort must be had initially to the statutory authority for urban renewal activity. By KRS Chapter 99, the legislative council of a city is authorized to create an urban renewal agency. Once created, the agency is a separate corporation from the city, with a separate governing body, and is free to employ its own counsel. While the city may assist the agency in the performance of its duties, there is no indication that the city attorney would be called upon or even permitted to advise the agency in connection with such assistance. Especially is this so in the present inquiry, since we have noted that the agency in question has already obtained legal counsel of its own.

In such circumstances the Committee finds no ethical conflict which would prevent acceptance of the questioned employment. Only if the city attorney should undertake to counsel the agency would any impropriety exist. Then obviously, the interests of the two parties would be inconsistent.

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.