86-08: Conflicts

7/1986

Past political activity of attorney on behalf of present or past county supervisors and past employment does not create a conflict of interest adverse to his client's best interest.

FACTS

This inquiry concerns the propriety of an attorney representing individual clients in appearances before a fiveperson Board of Supervisors and subsequent appearances in suits in Superior Court wherein the relief sought woula be to set aside earlier decisions of the Board of Supervisors as arbitrary or illegal.

Both before and after his admission to practice law, the inquiring attorney has been politically active in support of prior and present board members. He chaired campaigns for a former board member. Also, before being admitted to practice, the attorney acted as a clerk within the civil division of the County Attorney's office. He did not state whether he touched land use questions. Before being admitted to practice, the attorney also served one year as a member of the Board of Adjustment. That board is created by law and is independent of the Board of Supervisors. Its decisions are appealable directly to the Superior Court. Since admission to practice, the attorney has concentraced in land use issues. During three years with a firm concentrating in land use issues, he made or assisted in presentations to the Board of Supervisors and in suits in Superior Court seeking to overturn Board action. In 1982 the attorney married his wife, not an attorney, continued as an employee of the Family Support Section of the County Attorney's office. Her employment there was under Merit System provisions. In 1984 one of the candidates the inquiring lawyer supported was elected. The elected supervisor then hired the lawyer's wife as his administrative assistant. She successfully transferred her Merit System employment to the administrative assistant position. Her Merit System employment is unique among the administrative assistants of the Board members. The elected, hiring supervisor confirmed to the lawyer a procedure of total abstinence from individual communication with the lawyer concerning any matters before the Board involving any client of the inquiring lawyer. From his past experience, the lawyer has avenues of information to and from the Board and free-flowing communication with other members of the Board through channels totally separate from the abstaining supervisor and the lawyer's wife. The supervisor has advised the lawyer of the supervisor's total refusal to urge any employment of the lawyer for special services as legal counsel to the Board and has also indicated refusal to suggest or refer inquiring persons as clients to the inquiring lawyer.

As voluntary routine at initial meetings, the lawyer asks prospective clients if they have discussed any facet of their problem with either the mentioned board member or with his administrative assistant, the lawyer's wife. The lawyer has perfunctorily declined further consultation or representation with any prospective client affirmatively replying. Additionally, the lawyer stresses to prospective clients that his political activity history and his wife's place of employment is not and cannot be a basis of any information, nor hint of preference or adverse results. The lawyer represents an existing client in Superior Court. The client is attacking a Board of Supervisors' decision. The decision was three to two against the client's position. The hiring board member cast one of· the two negative votes against the offending decision. The lawyer has represented the appealing client in hearings before the Board of Supervisors and the Board of Health.

QUESTION

Does the lawyer's past political activity on behalf of present and past county supervisors, his employment history as a clerk in the County Attorney's Civil Division, his voluntary public service as a member of a public body separate from the Board of Supervisors, friendship with elected, presently adjudicating officials, or his wife's employment as assistant to one elected, adjudicating official, cause such a conflict of interest adverse to his client's best interests to demand his termination of existing client representation, or demand that he cease practice before the Board of Supervisors of a metropolitan Arizona county?

OPINION

First: The lawyer's political activity.

Whatever his personal preferences and motives for championing the worthiness of any present or former member of the Board of Supervisors, the lawyer's participation in attempting to raise public interest in the election process is commendable, not derogatory.

Any lawyer is 'a public citizen having special responsibility for the quality of justice." ( Preamble to Rules of Professional Conduct )

“As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession." (Preamble) In Arizona, in a majority of the counties, but a minority of the population, judges are selected by political process. Lawyers do and are expected to do the public service of enlightening the public about the qualities of indivilual candidates for judicial position. In the populous counties, the respective local bar associations conduct and publish polls of judicial qualities of judges. This writer finds absolutely no hint of conflict arising to restrict a lawyer from appearing on behalf of clients before judicial officers, quasi-judicial officers, administrative agencies, or other adjudicatory panelsupon which sit elected candidates for whom he has urged the public to vote.

Second: The earlier Board of Adjustment participation, as a member.

The question is covered by Michigan Opinion 179 ( Aug. 1960 ) ( 44 Mich. S.B.J. 245, July, 1965, cited at Maru, Digest of Bar Assn. Ethics Opinions, Para. 1353 ). There it was decided that a lawyer-member of a municipal board of Zoning

Appeals may represent clients before administrative officers, boards, or commissions only if decisions of these bodies may not be appealed to the Board of Zoning Appeals. Here, the lawyer's Board of Adjustment service was not as a lawyer. Here, the decisions of the Board of Adjustment ace not appealable to the Board of Supervisors. Further, it must be assumed that any Board of Adjustment service is chronologically so remote as to be extinct as to any present land-use representation in which the inquiring lawyer might engage.

Third: The marital relationship.

Arizona approves a husband-wife two-lawyer relationship to exist and function so long as there is no vis-a-vis confrontation in a single matter. (See our Opinion No. 62-15, November 1, 1982.)

The inquiry here touches many of the points earlier decided by this committee, functioning under the former Code. Our Opinion No. 75-21 (October 10, 1975) still controls. The direct dictate of former DR 9-101, "avoiding even the appearance of professional impropriety," is gone. The need is not. However, in this inquiry, the appearance is as equally distant as it was in Opinion No. 75-21.

Fourth: The earlier clerkship.

Idaho State Bar Opinion (16 Advocate 8, October, 1973, cited at Maru, 1975 Supp. to Digest of Bar Assn. Ethics Opinions, Para. 8266), citing ABA Informal Opinion 906, covers this point. The facts clearly point away from any possible factual knowledge by the inquiring lawyer having been gleaned during his distant clerkship that would infect any present client representation. Of course, should the lawyer ever have any recollection of facts he touched in his clerkship that do actually involve a present or future matter, he should decline or discontinue representation in that particular matter.

Fifth: The actions of the supervisor.

This committee has no jurisdiction to adjudge or dictatewhether or not the hiring supervisor should disquality himself from hearing any matter the inquiring lawyer brings before the board.

The question submitted is answered "no"; the inquiring attorney need not cease his representation or his practice.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.