Can a lawyer who is a city council or county board member sue that same city or county on behalf of a private client?

Plain-English summary

Opinion E-54-2 asked whether an attorney who is a member of a city council or county board may accept a case from a claimant against the city or county and sue it while still a member. The committee answered in the negative. It reasoned that the conduct violates the spirit of Canon 6 of the Canons of Professional Ethics, which sets out the lawyer's duty to refrain from representing conflicting interests.

The committee acknowledged that, as a matter of the client relationship alone, an attorney who discloses to his client that he has an interest possibly opposed to the client's might not violate the letter of the canon, but it observed that other relationships beyond lawyer-client matter here. Before suit can be brought against a city or county, the claim must be presented to the council or board. Even if the attorney told the body he would appear for the client and refrained from voting, he would be open to public suspicion that he was privately using his influence with the other members, and he should be circumspect about any matter before the body that could be seen as of special interest to a lawyer member.

The committee concluded that the attorney owes undivided fidelity both to the body on which he sits and to his client, and that when the government's position and the client's are opposed, he cannot give undivided fidelity to both. While the committee presumed there is no clear prohibition if full disclosure is made both to the client and to the governing body, it stated that one of the most important rules is the lawyer's undivided loyalty to the client, which he cannot discharge while acting as a paid advocate against a body on which he serves. The opinion noted that the same result would follow under DR 5-105, DR 8-101(A), and DR 9-101 of the Code of Professional Responsibility.

Currency note

This opinion was issued in 1954, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies former Canon 6 of the Canons of Professional Ethics, noting the same result under DR 5-105, DR 8-101(A), and DR 9-101. The current counterparts are SCR 20:1.7 / Model Rule 1.7 (conflicts of interest; current clients) and SCR 20:1.11 / Model Rule 1.11 (current and former government officers and employees). 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: Can a lawyer who holds local office sue the government he serves on behalf of a client?

A: Under this opinion, no. The committee concluded that an attorney on a city council or county board cannot give undivided loyalty both to that body and to a client suing it.

Q: Does disclosure cure the problem?

A: The committee presumed no clear prohibition if full disclosure is made to both the client and the governing body, but it still concluded the dual loyalty cannot be discharged, treating the representation as improper.

Q: Why does serving on the body matter if the lawyer abstains from voting?

A: The committee reasoned that the claim must first be presented to the body, and even an abstaining member is open to public suspicion of privately influencing the other members.

Background and rules framework

The opinion applied former Canon 6 (conflicting interests) and pointed to DR 5-105, DR 8-101(A), and DR 9-101 for the same result. The current counterparts are SCR 20:1.7 / Model Rule 1.7 (conflicts) and SCR 20:1.11 / Model Rule 1.11 (government officers and employees).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / SCR 20:1.7 (conflicts of interest; current clients); former Canon 6, DR 5-105
• Model Rule 1.11 / SCR 20:1.11 (government officers and employees); former DR 8-101(A), DR 9-101

See also

• WI Ethics Op. E-69-1: Municipal Justice of the Peace Conflicts
• WI Ethics Op. E-65-1: District Attorney Conflict in a Condemnation Case
• WI Ethics Op. E-75-25: Private Practice by a Lawyer Holding Public Office

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-54-2.pdf