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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-35
Conflict: Counsel Representing Two Government Agencies With adverse Interests and Clients Who Appear Before Such Agencies
Your letter raises the question of whether Lawyer X has a conflict of interest in representing a client who is buying a parcel of land in the County, and at the same time representing the Board of Zoning Appeals and the Planning Commission in the same county. Your client is selling the land in question, and under the terms of the contract, both the Planning Commission and the Board of Zoning Appeals must grant certain approvals before the contract will be performed. The buyer of the land is not a party to the zoning case being presented to the county agencies.
As an initial matter, the Committee would like to emphasize that ""resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation."" Comment to Rule 1.7 of the Maryland Rules of Professional Conduct. Secondly, part of. your inquiry seems directed at establishing whether the other attorney has created a conflict interest by merely because he represents both government agencies. Whether that is true depends on the legal connection between the agencies. The relationship or lack thereof between the Planning Board and the Board of Zoning Appeals is a legal question which the Committee will not address. See Ethics Docket 88-7.
The question of whether Lawyer X has a conflict of interest in representing the Planning Board, the Board of Zoning Appeals and a private party interested in purchasing land is governed by Rules 1.7 and 1.11 of the Maryland Rules of Professional Conduct. On the facts as you have stated them, there does not seem to be a direct adversarial relationship between the agencies and the private party. The contract purchaser is not a party to the proceeding before the agencies.
Under Rule 1.7(b), when there is no direct adversarial relationship between clients, a lawyer must determine whether a conflict exists by considering whether representation of one client ""may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests."" If the lawyer reasonably believes his other responsibilities will not adversely affect his representation of the client, he may still undertake representation if the client consents after consultation. The Comment to Rule 1.7 states that the critical question is whether a conflict will ""materially interfere with the lawyer's independent professional judgment in considering alternatives or foreclosing courses of action that reasonably should be pursued on behalf of the client.""
You have advised that, in the past, the Chairman of the Planning Commission and Lawyer X have privately expressed views which are inconsistent with the proposals contained in the contract of sale and for which approval is being sought from the Board and Commission. You have not provided the Committee with any facts as to what role Lawyer X will have in the decision-making role of either the Board or the Commission. However, in the event that his responsibilities to the Board and Commission may be materially limited by his responsibilities to the contract purchaser, Lawyer X may not represent the public agencies unless he reasonably believes that the representation will not be adversely affected and the Board and Commission consent after consultation. See, e.g., Rule 1.7(b) and Ethics Docket 87-42.
This opinion, 88-35 makes references to opinions 86-53 and 88-07.
Other References: Rules 1.7 and 1.11
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