You have presented a hypothetical situation involving a Board
created by the City Charter to hear grievance appeals and to adopt
and amend the City's personnel rules.  In the grievance hearings,
the Board is represented by independent counsel whereas the City
Attorney represents all administrative departments and agencies of
the City ("City Administration") in those hearings.  The City
Attorney then represents the City Administration in any court
challenges to the decisions in these hearings.  The City Attorney
also represents the Board in adopting and amending personnel rules. 
The City Attorney has made it clear to the Board that he represents
the Board only in this capacity and not in grievance matters.  In
the past, the Board and the City Administration have consented to
both representations.  However, two new members of the Board have
indicated they believe this arrangement constitutes a conflict of
interest.  The Board has not voted on this issue since acquiring
these new members.  Additionally, the City Administration has
strongly disagreed with some grievance decisions made by the Board. 

Under the facts you have presented, you have asked the Committee to
opine as to whether the City Attorney's involvement in representing
the City Administration and the Board constitutes a conflict of
interest and, if so, does the past consent of the Board and the
City Administration remain effective in curing that conflict.

The appropriate and controlling disciplinary rule relative to your
inquiry is DR 5-105(C), which states that an attorney may represent
multiple clients where the exercise of his professional judgment
may be adversely affected only if it is obvious that he can
adequately represent the interest of each and if each consents to
the representation after full disclosure of the possible effect of
such representation on the exercise of his independent professional
judgment on behalf of each. 

The question presented, of course, is whether the City Attorney's
representation of the City Administration before the Personnel
Board in defending employee disciplinary grievances will or is
likely to affect adversely his independent professional judgment on
behalf of, or dilute his loyalty to, the Board as its counsel in
personnel rulemaking decisions.  DR 5-105(A).
In the facts you present, the Committee believes that a threshold
question is whether the City Administration and the Board are
actually separate clients.  Resolution of such a question is a
legal matter outside the scope of this Committee's
responsibilities.  Assuming for purposes of DR 5-105 that the City
Administration and the Board are separate clients, in the context
of the initial employee grievance hearing, the Committee has no
basis to believe that the City Attorney's representation of the
City Administration will be or is likely to be adversely affected
by his representation of the Board. The Committee is of the view
that the interests of the City Administration and Board are not, in
fact, adverse.  The adverse parties in this scenario are the City
Administration and the grievants.  The Board is merely the dispute
resolution system available for those parties; the Board itself
does not have an interest in the various grievances.  
Thus, in the situation of defending an employee grievance before
the Board, the City Attorney does not need to obtain the consent
contemplated in DR 5-105(C). 

Similarly, if an employee appeals the Board's decision in circuit
court, it would not be improper for the City Attorney to represent
the City Administration's interests.  In such an instance, the City
Attorney would be seeking to uphold the Board's decision, and the
interests of the City Administration and the Board would not be
adverse.  Thus, under these circumstances, the City Attorney does
not need the consent of the parties.  

The situation is different, however, when the City Administration,
represented by the City Attorney, challenges in Circuit Court a
rule adopted by the Board, or asserts that the Board acted without
authority in the promulgation of a personnel rule at issue.  Then,
the City Attorney having represented the Board in its consideration
and adoption of the rule cannot represent the City Administration
in contesting the rule.  In that limited situation, the substance
of his representation of the Board conflicts with his
representation of the City Administration, regardless of whether
the Board is a party in the Circuit Court proceeding.  Moreover, it
is not obvious that the City Attorney can adequately represent both
clients with independent judgment and undiluted loyalty. 
Therefore, even if the Board and the City Administration were to
consent, the consent would be ineffective to cure the actual
conflict of interest in this multiple representation scenario.  See
LEO No. 1408.

However, the Committee opines that there is no conflict under DR 5-
105 if the City Attorney, on behalf of the City Administration,
merely challenges the Personnel Board's application of rules to the
facts of the particular grievance, or challenges the Board's
decision in a particular case, since those matters are not
substantially related to any advice given by the City Attorney to
the Board.  

[DR 5-105(A),(C); LEO 1408]
Committee Opinion
September 23, 1996