Municipal Attorneys' Conflicting Obligations: A Case Study

Here's a difficult case involving a board of education's attorney.

The board of education in a wealthy, medium-sized Connecticut town is represented by a large law firm that represents 80 boards of education across the state (half the state's total). That same firm is representing a developer that is suing the town's planning and zoning commission, and it appears to be a controversial matter.

There is no doubt that the state's rules of professional conduct allow a firm to represent both a town and another client that is suing it, as long as there is no relationship between the matters. Even where, say, a suit concerns a school building, waivers are often obtained, so long as the different firm departments' lawyers do not discuss the different matters.

This works very well for law firms, especially sizeable firms, and generally they can be trusted to keep matters separate. But how do lawyers' rules work for towns?

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The person who raised the issue of the conflict of interest was concerned about the perception of a conflict. Another member of the town's representative town meeting (an unusual hybrid of town meeting and town council) said, according to the town's local weekly, 'the town's taxpayers are paying money to a firm that is 'aggressively trying to harm the town' by representing Redcoat's lawsuit. 'By terminating the relationship with Shipman & Goodwin, you'll be sending the message that they shouldn't be coming into our town and trying to harm us.'

When a town is too small to have in-house counsel, can it expect any loyalty from outside counsel, when that counsel works on a regular rather than a case-by-case basis? Should municipal attorneys be involved with a substantial, especially controversial suit against a town, even if it has nothing to do with the area of their regular legal work for the town?

The board of education chairwoman made some good points about the quality of the lawyer and the fact that the law firm is not doing the suing, the client is. But these are defenses of the board's choice not to fire the law firm as its counsel. That would be a radical decision compared to the firm's choice not to accept a client who wants to bring a controversial suit against a town the firm regularly represents.

Legally, the firm is in the right. The board of education is also right not to want to give up a lawyer it respects and who is in no way involved with the developer's suit. But is the law firm acting in the best interests of the client it represents on a regular basis: the people of Westport? Does the firm truly have no conflicting obligations? Of course, it does; it's just that they are not recognized by the rules of professional conduct.

Then why is all the talk about the rules, and none of it about the conflicting obligations? Why can't the law firm recognize and respect the validity of the citizens' feelings? And why won't the board of education do the same?

When people are told their reasonable feelings are invalid because the rules say the situation is okay, they lose respect for the law. They talk amongst themselves about how lawyers write their own rules of professional conduct, judges (who are all lawyers) make decisions supporting those rules, and then lawyers act as if those rules are more important than how their regular clients feel. This is not a situation that instills trust in government or in the lawyers who are seen as holding political power in the United States.

At what cost to our society do attorneys take clients whose interests are so opposed? And why does it seem so difficult to discuss such a difficult situation honestly, and in terms of ethics rather than the rules attorneys have developed to police themselves?

Robert Wechsler
Director of Research-Retired, City Ethics