Legal Ethics Opinion No. 1422

    Conflict of Interest--Multiple Representation--Government
Attorney: County Attorney As General Counsel For Regional
Transportation District Commission, One Member of Which is the
County, While Simultaneously Providing Legal Services to the
You have indicated that the county [County] for which you serve
as county attorney is a member of a Regional Transportation
District Commission [Commission], along with one other county and
three cities.  You indicate that, at the request of the County's
Board of Supervisors, your Office drafted the founding documents
to create the Commission (which originally consisted of your
County, one other County, and one City), has served as legal
counsel for it in all matters except bond counsel services, has
negotiated and drafted numerous contracts, and has provided
substantial written and oral advice on behalf of the Commission. 
Furthermore, you indicate that the great majority of those legal
services have been provided by the current Deputy County Attorney
[Deputy], with the Commission members and all relevant entities
and individuals clearly understanding that the County was the
actual employer of the Commission's counsel.  

You advise that, after approximately four years of such
operations and upon negotiations being conducted prior to an
additional city [City] assuming membership on the Commission,
that applicant city sought to condition its membership, in part,
upon the Commission's obtaining independent legal counsel.  That
condition was rejected by the then-current membership of the
Commission; however the City ultimately resolved to join the
Commission and accepted a letter from the Commission stating that
it would begin the process of obtaining independent counsel once
a particular major transportation project began service,
projected for the fall of l99l.  

Furthermore, you indicate that, when a draft agreement was
presented to the Commission by which the principal operating
responsibility for a specific transportation project would be
transferred from your individual County to the Commission, the
City again voiced its dissatisfaction at not having independent
counsel.  You advise that the Executive Director of the
Commission conceived and negotiated the agreement to transfer the
project, following which the Executive Director was advised that
the Commission either could continue to utilize the legal
services of the Deputy, while effecting a "Chinese Wall" between
the County Attorney and the Deputy, or could obtain outside
counsel.  The Commission's Executive Director chose to continue
utilizing the services of the Deputy and no immediate objection
was raised by the City.  Subsequently, however, you indicate that
the City's Commission member reiterated his concerns for the
propriety of the provision of legal services to the Commission by
the County member's Deputy County Attorney.

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for members of a county attorney's
office to provide general counsel services to the [regional]
Commission of which the County is a member.  In addition, you ask
the committee to consider the propriety of the Deputy County
Attorney providing legal representation to the [regional]
Commission with regard to a specific agreement for transfer of a
project between the Commission and the County where a "Chinese
Wall" has been effected between the County Attorney and the
Deputy providing services to the Commission. 

The appropriate and controlling disciplinary rules relative to
your inquiry are DR 5-l05(B) and (C) which mandate that a lawyer
shall not continue multiple employment if the exercise of his
independent professional judgment in behalf of a client will be
or is likely to be adversely affected by his representation of
another client except if it is obvious that he can adequately
represent the interest of each and if each consents to the
representation after full disclosure; and DR 5-l05(E) which
requires that, if a lawyer is required to decline employment or
to withdraw from employment under DR 5-l05, no partner or
associate of his or his firm may accept or continue such
employment.  [emphasis added]  Further guidance is available in
Ethical Considerations 5-l5 which provides that: 

     If a lawyer is requested to undertake or to continue
     representation of multiple clients having potentially
     differing interests, he must weigh carefully the
     possibility that his judgment may be impaired or his
     loyalty divided if he accepts or continues the
     employment.  He should resolve all doubts against the
     propriety of the representation. 

In addition, EC 5-l8 exhorts that 

     [a]  lawyer employed or retained by a corporation or similar
          entity owes his allegiance to the entity and not to a
          stockholder, director, officer, employee,
          representative, or other person connected with the
          entity.  In advising the entity, a lawyer should keep
          paramount its interests and his professional judgment
          should not be influenced by the personal desires of any
          person or organization."

Assuming, from the facts you have presented, that the [regional]
Commission is being represented as a single entity, one member of
which is the County, the committee is of the opinion that it
would not be proper for members of that county attorney's office
to provide to the Commission either general counsel services or
specific legal services related to an agreement between the
Commission and the County, while simultaneously providing legal
services to the County.  The committee believes that the
potentially differing interests, and thus the foreseeability of
future conflicts between the County and the Commission of which
it is a member, preclude the County Attorney from meeting the
threshhold test of DR 5-l05(C), i.e., it must be "obvious that
[the lawyer] can adequately represent the interest of each". 
Furthermore, the committee believes that, since the ripening of
any such differing interests and future conflicts would mandate
withdrawal from representation of both the County and the
Commission, all doubts should be resolved against the propriety
of continuing the multiple representation and in favor of
retaining undivided loyalty to the initial client, the County, as
encouraged by EC 5-l5.  See also Utah State Bar Op. 8l (Feb. 20,
l987)(A lawyer may not be employed as both a county attorney and
as a city attorney for a municipality within the same county
boundaries due to the potential for divided loyalties, improper
use of confidential information, and the appearance of

Having reached the conclusion that the continued multiple
representation as you describe would be improper, and since your
inquiry provides no factual description of any such device, the
committee specifically refrains from opining as to the viability
of a "Chinese Wall"/screen between the County Attorney and the
Deputy County Attorney.  See also LEO #l020.

Committee Opinion
June 13, 1991