LEGAL ETHICS OPINION 1698 ATTORNEY HANDLING ZONING CASE AFTER
HAVING SERVED ON COUNTY PLANNING
COMMISSION AND AS CAMPAIGN TREASURER
FOR A COUNTY SUPERVISOR
You have presented a hypothetical situation in which an attorney
served on a County Planning Commission, which made recommendations
on zoning cases and amendments to the County's Comprehensive Plan
and took final action on certain development plans. The attorney
also served as campaign treasurer for a member of the County's
Board of Supervisors. Also, the attorney's spouse volunteered as
campaign manager for the same Supervisor, and the County Registrar
reported the spouse's volunteer service as an $8,000 contribution.
Under the facts you have presented, you have asked the committee to
opine as to the propriety of the attorney representing applicants
in matters before the Planning Commission or Board of Supervisors,
if the matters do not relate to issues the attorney voted on while
a member of the Planning Commission. You also inquire as to
whether the campaign activities of the attorney or his wife
preclude the attorney from ethically handling zoning cases.
The appropriate and controlling disciplinary rules relative to your
inquiry are DR 9-101(B) which states that a lawyer shall not accept
private employment in a matter in which he had substantial
responsibility while he was a public employee unless the public
entity by which he was employed consents after full disclosure; DR
9-101(C) which states that a lawyer shall not state or imply that
he is able to influence improperly or upon irrelevant grounds any
tribunal, legislative body, or public official; and DR 5-101(A)
which states that a lawyer shall not accept employment if the
exercise of his professional judgment on behalf of his client may
be affected by his own financial, business, property, or personal
interests, except with the consent of his client after full and
adequate disclosure under the circumstances.
Your first inquiry is whether it is ethically permissible for
Lawyer to represent clients before the Planning Commission or the
Board of Supervisors where Lawyer formerly served as one of the
five members on the Planning Commission. The fact of Lawyer's
former relationship on the Planning Commission, without more, does
not bar his representation of clients before it or the Board of
Supervisors. In Legal Ethics Opinion 373, the committee concluded
that a former county attorney could ethically represent a client to
secure a franchise from the county, provided the former county
attorney did not have any "substantial responsibility" in the
franchise matter while serving as the county attorney. Thus, DR 9-
101(B) permits such representation in matters in which Lawyer did
not have substantial responsibility while a member of the Planning
Commission; and, in addition, permits such representation where the
matters overlap if the Planning Commission consents after full
disclosure.
However, DR 9-101(C) mandates that Lawyer's former membership on
the Planning Commission may not be used as a vehicle to "state or
imply that he is able to influence improperly or upon irrelevant
grounds any tribunal, legislative body, or public official. In
Legal Ethics Opinion 1123, the committee opined that there was no
per se violation of DR 9-101(C) for a lawyer to represent clients
before a Board of Zoning Appeals of which his wife was a member
where she disqualified herself on the record and did not discuss
his cases with the other members of the Board or with her husband.
Your second inquiry is whether it is ethically permissible for
Lawyer to represent clients before the Planning Commission or the
Board of Supervisors where Lawyer formerly served as campaign
treasurer for one of the supervisors and Lawyer's wife volunteered
her services as the same Supervisor's campaign manager, which was
declared as an in-kind political contribution in the amount of
$8,000.
In Legal Ethics Opinion 279, the committee opined that it is
improper for a lawyer to make a gift to a public official "for the
past or future performance of any public act or duty." In Legal
Ethics Opinion 1360, the committee opined that it is not improper
for a lawyer to create or contribute to a political action
committee for an election campaign provided the lawyer made "no
suggestion or implication to a client of an intent to improperly
influence the legislator." The committee concluded in Legal Ethics
Opinion 1421 that it is not per se improper for a lawyer to make a
contribution to a campaign committee for the re-election of a
circuit court clerk where there were no "circumstances which might
give the appearance that the gift or loan is made to influence
official action."
A determination of the issue entails a balancing of interests
between the rights of lawyers as citizens to participate in the
political process and the duties of lawyers as professionals to
foster public confidence in the profession and the integrity of the
legal process, whether judicial, legislative, or administrative.
EC 9-2 aptly observes:
Public confidence in law and lawyers may be eroded by
irresponsible or improper conduct of a lawyer. On
occasion, ethical conduct of a lawyer may appear to
laymen to be unethical. . . . While a lawyer should guard
against otherwise proper conduct that has a tendency to
diminish public confidence in the legal system or in the
legal profession, his duty to clients or to the public
should never be subordinate merely because the full
discharge of his obligation may be misunderstood or may
tend to subject him or the legal profession to criticism.
. . .
In the facts you present, the committee believes that it is
ethically permissible for Lawyer to represent clients before the
Planning Commission or the Board of Supervisors even though he
served as campaign treasurer and his wife, as campaign manager, for
one of the supervisors, provided that he does not state or imply
that, by reason of the campaign services of himself or his wife, he
is able to improperly influence the Planning Commission or the
Board of Supervisors. DR 9-101(C). The committee observes that
whether the campaign services were done for the purpose of
suggesting or implying to Lawyer's clients his intention to employ
improper influence on the supervisor or other public officials
entails a subjective determination beyond the purview of the
committee. See, Legal Ethics Opinion 1421. The potential for the
appearance of impropriety is significant and should be scrupulously
guarded against. Legal Ethics Opinion 1123, EC 9-4. Specific
factual circumstances may render political contributions, by a
lawyer to court or other public officials before whom they
practice, improper as they create an appearance that they have been
made for the purpose of influencing official action. Legal Ethics
Opinion 1421.
The Committee cautions that allegiance of Lawyer to the Supervisor
in whose election campaign Lawyer and his wife held positions of
authority could implicate DR 5-101(A). Appropriate disclosures
would need to made to and consent obtained from a client whose
interests conflicted with the personal interests of Lawyer as
campaign treasurer seeking election of the Supervisor, or as the
husband of the Supervisor's campaign manager. See, Legal Ethics
Opinion 1123.
The committee's opinions are limited to the application of the
Virginia Code of Professional Responsibility to the facts
presented. Application of the Virginia State and Local Government
Conflict of Interests Act (Va. Code 2.1-639.1, et seq.) is a
matter of law beyond the purview of the committee.
[DR 9-101(B),(C); DR 5-101(A); LEOs 279, 373, 1123, 1360, 1421; EC
9-2; EC 9-4]
Committee Opinion
June 24, 1997
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