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Lawyer as legislator

By Peter H. Geraghty
Director, ETHICSearch

You are a lawyer practicing in a medium-sized firm. You are considering running in an upcoming election for state representative in your district.  What are the potential legal ethics issues that could arise if you are elected to office and continue to practice law?

I. State Bar Opinions

There have been several recent state bar ethics opinions that provide an analysis of the lawyer as legislator in many different contexts.  In general, these opinions analyze the issue under their respective state versions of Rules 1.7 Conflict of Interest: Current Clients, 1.10 Imputation of Conflicts of Interest: General Rule, 3.5(a) Impartiality and Decorum of the Tribunal, and 8.4(e) Misconduct. Rule 7.5(c) is also implicated. Lawyers who serve as legislators would also be bound by any applicable legislative ethics rules as adopted by the legislative body on which they serve. The National Conference of State Legislatures maintains links to these rules here.

Michigan State Bar Opinion RI 331 (2003) is an example of a recent state bar opinion on this topic.  It considered the circumstances under which a lawyer who is serving as a legislator can represent clients whose interests may be adversely affected by legislation pending before the legislative body on which the lawyer serves.

The opinion addressed two types of conflicts, the first involving situations where the lawyer represents the client in a matter that would “require the exercise of the lawyer’s duty to the public that are contrary to the client’s interests in the matter of the representation,” and the second involving circumstances where the lawyer has clients whose general interests conflict with the lawyer-legislator’s duties to the public.

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Under the first scenario, the Michigan Committee stated that representing a client in related matters would create a conflict under Rule 1.7(b), and that the lawyer would have to decline to represent the client in the matter.

…Once a material limitation is present, the lawyer must then determine whether carrying out the duty to others is adverse to the client in the representation, for if so, the representation must be declined or terminated.  Nothing in MRPC 1.7(b) requires the lawyer/legislator to refrain from representing all clients whose interests could be affected by legislation considered by the legislative body.  The prohibition relates to the representation affected.  A lawyer/legislator who votes to cut back revenue sharing to all municipalities in an effort to balance the state budget may reasonably form a belief that representation of municipal clients will not be adversely affected, even though there is a material limitation.  However, the lawyer/legislator may not represent a client in its attempts to defeat the legislation, because under Rule 1.7(b) there is a material limitation imposed by the lawyer/legislator’s public duty (i.e., to third persons) that a lawyer could not reasonably believe would not adversely affect the representation if the lawyer were required to make a decision about the legislation based on the interests of others. 

Under the second scenario, the Committee stated that the representation would be akin to a positional conflict, citing to ABA Formal Opinion 93-377 and that the lawyer might be disqualified depending on the facts:

…We are not prepared to say that the positional conflict posed always results in a material limitation on the representation of a client; and we are not prepared to say that the positional conflict can never result in such a limitation.  The interests of each person to whom the lawyer owes a duty must be balanced on a case-by-case basis.  In the balancing process of determining whether a material limitation exists, loyalty to the client’s interests must prevail over the lawyer’s interests.  The result of the process will require the lawyer to decline representation of the client rather than to proceed under a material and adverse limitation.

Other state bar opinions have addressed whether a lawyer who is a city or county council member can represent criminal defendants.   See, Georgia Opinion 05-12 (2005),

…The mere fact of representation of a criminal defendant by an attorney who is a member of the City Council, when the City Council controls the salary and benefits of the members of the Police Department, and when the police exercise discretion in determining the charges does not, by itself, establish a violation of Rule 3.5(a).  To establish a violation, there must be a showing that the attorney sought to exercise influence in a manner prohibited by law.  We note, however, that Comment 2 to Rule 3.5 provides that "The activity proscribed by this Rule should be observed by the advocate in such a careful manner that there be no appearance of impropriety."  Pursuant to Rule 3.5, therefore, an attorney should not represent a criminal defendant where an inference of improper influence can reasonably be drawn.

Iowa Opinion 04-10 (2004), citing the applicable provisions of the Iowa Code of Professional Responsibility (Note: Iowa has since adopted a version of the ABA Model Rules) concluded that it would be improper for a city councilman to represent a criminal defendant charged under state law if city police officers are involved in the arrest and may be called as witnesses.  See Also Maryland Opinion 00-10 (2000)  (A lawyer serving as a county council member may represent criminal defendants in state and federal courts, but may not represent anyone charged with violating a law passed by the county council during his service on it) and New York State Opinion 798 (2006) (A lawyer/county legislator may not represent criminal defendants in cases involving members of a police department or district attorney's office over which the legislature has budget or appointment authority. It is irrelevant whether the county or the budget is large or the representation involves only plea bargaining).

Other state bar opinions address imputed disqualification issues as applied to partners or associates of the lawyer legislator.  Some of these opinions state that under Rule 1.10, if one lawyer in a firm is disqualified because of service on a state legislature, then all members of the lawyer’s firm are also disqualified. See: Michigan Opinion RI-331 (6/19/03), Indiana Opinion 1 of 2006 (5/06) (2006) and  Virginia Opinion 1718 (1998) (it is not ethically permissible for a law firm to represent a client in a matter before a governing body when one of the law firm's lawyers is a member of the governing body even if he/she discloses the conflict and abstains from participation and voting in the matter.)  Note: a subsequent Virginia Opinion 1773 (2003) affirmed the conclusion reached in 1718 but also stated that a lawyer would not be prohibited from appearing before legislative bodies upon which no member of the firm served.

But compare Nebraska Opinion 07-02 (6/07). Members of a law firm may appear on behalf of private clients before a city council on which another member of the firm serves if the lawyer-councilmember recuses himself from the matter and the appearance is not contrary to other laws, rules, or regulations and New York State Opinion 798 (If the lawyer/legislator is employed by a law firm, other lawyers in the firm are not per se vicariously disqualified, but imputed disqualification may be appropriate where members of the public are likely to suspect that the lawyer/legislator's influence will have an effect on the prosecution of the case.)

Still others address conflicts concerns when the lawyer legislator represents a client before state or municipal governmental entities.   See, Michigan Opinion RI-306 (4/15/98) (1998), New Jersey Opinion 706 (2006):

… We observe… that an attorney representing a county while concurrently serving as a member of a municipal governing body in the same county is likely to experience divided loyalty and challenges to his or her objectivity and independence of judgment on a recurring basis. The contexts in which this impairment will surface may not be readily foreseeable, and recusal on a case-by-case basis may not fairly serve the interests of either the municipality or the county, especially if it occurs with any frequency. Assessing this frequency, and consequent harm to the public interest, is part of the analysis required of the attorney under RPC 1.8(k), and in some circumstances may require the attorney to refrain from holding both positions. While there cannot be a bright-line frequency standard, we are of the opinion that multiple recusals or withdrawals annually presumptively would not well serve the public interest.

See Also Rhode Island Opinion 2005-09 (2005).

A list of state bar opinions that have addressed lawyer as legislator issues is located here.

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II. ABA Ethics Opinions

The most frequently cited ABA ethics opinion on this topic is Informal Opinion 1182 (1971) In this opinion, the Committee considered eight questions that dealt with various issues applicable to the lawyer as legislator:

1) 'Should a lawyer who is a member of a legislative body accept a retainer or other compensation from an electric utility, a loan company, a labor union, an insurance company, a bank, a farmer's cooperative, a railroad, or any other organization which is likely to be affected by the passage or defeat of proposed legislation?’

2) 'If so, what is the proper course for the lawyer to follow when legislation affecting this client is being considered by the legislature? Should he disclose his retainer and request that he be excused from participating in the consideration of the matter?'

3) ‘Where the compensation of members of administrative boards is fixed by the legislature, or where their appointments are subject to legislative approval or where they are elected by the legislature, should lawyer-legislators appear before these administrative boards in behalf of private clients?'

4) 'Where the state and its agencies furnish workmen's compensation for their employees, is it proper for a lawyer-legislator to represent the employee against the state or one of its agencies before a workmen's compensation commission?'

5) 'Is it proper for a lawyer-legislator to represent a land owner whose property is being taken by eminent domain by the state?'

6) 'Is it proper for a lawyer-legislator who has voted for the passage of legislation to accept employment to contest the constitutionality of that legislation?'

7) 'Is it proper for a lawyer-legislator to accept legal employment by the state or by one of its agencies?'

8) 'Do the same rules apply to a law partner of the legislator?'

In its analysis of the questions presented, the Committee construed DR 8-101(A) of the ABA Model Code of Professional Responsibility that states as follows:

DR 8-101 Action as a Public Official.
(A)A lawyer who holds public office shall not:

(1)Use his public position to obtain, or attempt to obtain, a special advantage in ; legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.

(2)Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client.

(3)Accept any thing of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action a public official.

Ethical Consideration 8-8 from Canon 8 of the Model Code states:

Lawyers often serve as legislators or as holders of other public offices. This is highly desirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. A lawyer who is a public officer, whether full or part- time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties.

While the Model Rules did not expressly carry forward the specific references to lawyer legislator as they appeared in DR 8-101, Rules 3.5, Impartiality and Decorum of the Tribunal and subparts (c) and (d) 8.4 Misconduct have been cited as applicable to the lawyer as legislator.  See Also paragraph 5 of the Comment to Rule 8.4 that states as follows:

[5] Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office can suggest an inability to fulfill the professional role of lawyers. The same is true of abuse of positions of private trust such as trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.

In response to questions one through five, the Committee stated that there was no definitive answer, but that under certain circumstances, DR 8-101(A)(1) – (3) may have some bearing on the matter The Committee answered no to question six, citing to Disciplinary Rule 9-101(B) that states, 'a lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee.' With regard to question 7, the Committee could not provide a definitive answer, citing to EC 8-4 that states:

EC 8-4

Whenever a lawyer seeks legislative or administrative changes, he should identify the capacity in which he appears, whether on behalf of himself, a client, or the public. A lawyer may advocate such changes on behalf of a client even though he does not agree with them. But when a lawyer purports to act on behalf of the public, he should espouse only those changes which he conscientiously believes to be in the public interest.

With regard to question 8, the committee decided that the same rules should apply to the partner.

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III. Case Law and Law Review Articles

There is some case law on the subject.   A divided Georgia Supreme Court in a 1982 decision adopted a per se rule against a lawyer-legislator representing a party against the state. Georgia Dept. of Human Resources v. Sistrunk, 249 Ga. 543, 291 S.E.2d 524 (1982) . In 2001, the same court disapproved its prior decision, offering the pragmatic test of whether there was the risk of actual improper conduct—Georgia Ports Authority v. Harris, 274 Ga. 146, 549 S.E.2d 95 (2001). Conflict of interests laws can preclude lawyers, who are legislators, from appearing as lawyers before a state agency. A 1990 New Jersey decision Wood v. Department of Community Affairs, Bureau of Regulatory Affairs, 243 N.J. Super. 187, 578 A.2d 1257 (App. Div. 1990), emphasized the importance of liberal application of such legislation.

A lawyer who was a member of the West Virginia Board of Regents, could not bring medical malpractice actions against staff physicians of state hospitals, though he did not sue the hospitals.  Graf v. Frame, 177 W. Va. 282, 352 S.E.2d 31, 36 Ed. Law Rep. 1259 (1986). Representation of city employees in their workers' compensation cases against city while serving as city alderman constitutes conflict of interest warranting censure. In re Vrdolyak 560 N.E. 2d 840 (1990).

There are also some law review articles on point. See Henry, Lawyer-Legislator Conflicts Of Interest 17 J. Legal Prof. 261 (1992). This article provides a detailed analysis of ABA ethics opinions on the subject. See Also Carpinello, Should Practicing Lawyers Be Legislators?, 41 Hastings L.J. 87 (1989) and Reeves, Legislators As Private Attorneys: The Need For Legislative Reform, 30 UCLA L.REV. 1052, 1074 (1983).

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