Can town counsel represent the selectmen against the planning board when the firm also regularly advises that board?
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This page answers the general question as of 1989. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
Town counsel, retained annually by the board of selectmen, asked whether he could represent the selectmen in defending an appeal brought by the town's independently elected planning board, which contested the selectmen's grant of a special permit. Under an informal practice, town counsel's firm advised various town agencies including the planning board, and had recently represented the board in unrelated, now-settled litigation. The planning board had been refused permission to hire independent counsel and was represented by one of its own member-attorneys.
The committee addressed two questions under DR 5-105. First, whether the planning board was a "current" client: it explained that a client can remain current even when no matter is pending if the pattern of representation is continuous and recent enough that the client reasonably relies on the firm as its present lawyer (citing IBM v. Levin), and that "fairly regular" representation might well make the board a current client, though it lacked the facts to decide. Second, assuming the board was a current client, whether DR 5-105 barred the representation as it would for private clients. For private clients, McCourt Co. v. FPC Properties forbids concurrently representing and suing a client in unrelated matters without consent, and Maddocks v. Ricker recognizes the "obviousness" test can bar representation even with consent; the planning board had not consented.
The committee concluded that the conflict rules apply to government lawyers in much the same way as to private lawyers in most situations (citing Pinshaw v. MDC, Filippone v. Mayor of Newton, and its Opinion 86-2). But it identified municipal representation as a setting where strict application would "wreak havoc," because municipal counsel routinely represent many town agencies and employees who are all in a sense current clients; if any objecting agency could block counsel from representing the municipality, municipal practice would have to be restructured. Drawing on Board of Public Works v. Wellesley Board of Selectmen and Feeney v. Commissioner, and absent any signal from the Supreme Judicial Court that it intended such a result, the committee inferred that the court would not read DR 5-105's consent and obviousness requirements to forbid town counsel from representing the selectmen against the planning board, even over the board's objection. It declined to interpret G.L. c. 268A.
Currency note
This opinion was issued in 1989, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Was the planning board a current client of town counsel?
A: Possibly. The committee said a client stays current when the pattern of representation is continuous and recent enough that the client reasonably relies on the firm as its present lawyer, and "fairly regular" representation might make the board a current client, though it lacked the facts to decide.
Q: If the board were a private client, could the firm oppose it without consent?
A: No. The committee said that for private clients, DR 5-105 and cases like McCourt and Maddocks would bar concurrently representing and opposing a client in unrelated matters without consent, and the board had not consented.
Q: Why is the result different for a government lawyer?
A: The committee concluded that strict application would disrupt municipal representation, where counsel routinely represent many town bodies at once. It inferred the Supreme Judicial Court would not read DR 5-105 to let an objecting town board block counsel from representing the municipality.
Background and rules framework
The opinion applied DR 5-105 (declining or limiting representation of differing interests, and the consent and "obviousness" cure), which corresponds today to Model Rule 1.7 (concurrent conflicts). The government-client dimension, and the question of who the client is when a lawyer represents a town and its constituent boards, is now addressed by Model Rule 1.13 (organization as client). The committee declined to interpret G.L. c. 268A.
Citations and references
Rules of Professional Conduct:
- DR 5-105 / Model Rule 1.7 (concurrent conflicts; consent and obviousness)
- Model Rule 1.13 (government or organizational client)
Statutes:
- G.L. c. 268A (conflict-of-interest statute; the committee declined to interpret it)
Cases:
- IBM v. Levin, 579 F.2d 271 (3d Cir. 1978); McCourt Co. v. FPC Properties, 386 Mass. 145 (1982); Maddocks v. Ricker, 403 Mass. 592 (1988); Pinshaw v. MDC, 402 Mass. 687 (1988); Filippone v. Mayor of Newton, 392 Mass. 622 (1984); Board of Public Works v. Wellesley Bd. of Selectmen, 377 Mass. 621 (1979); Feeney v. Commissioner, 373 Mass. 359 (1977)
Other opinions cited:
- MBA Opinions 86-2 and 89-4 (conflict rules applied to government lawyers); NY State Bar Op. 385 (1975)
See also
- MA Bar Ethics Op. 92-2: Town counsel adverse to a client served as estate executor
- MA Bar Ethics Op. 89-4: Screening a lateral lawyer who joins a government office
Source
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