April 3, 1996
A city attorney owes an ethical obligation to follow the directives of the majority of the city council in drafting ordinances, as long as the directives do not involve the lawyer in furthering fraud or illegal activity of the client.
A city attorney may not, at the request of a dissenting member of the city council acting in a personal capacity, draft an opinion on the constitutionality of action taken by the city council.
References: MRPC 1.1, 1.2(c), 1.4(b), 1.7(b), 1.13(a), (d) and (e).
A city council has voted to direct the city attorney to draft an ordinance which bans in-line skating on all city sidewalks. One of the three dissenting members is concerned that such an ordinance might be unconstitutional and/or may adversely affect the member's child who is a world class skating competitor. The dissenting member asks the city attorney to prepare a memorandum which addresses the constitutionality and enforceability of such an ordinance. The city attorney asks whether compliance with the request would be consistent with ethical duties.
When an lawyer represents a corporation, unincorporated association or governmental agency, the lawyer represents the organization rather than the individual members. MRPC 1.13(a), (d) and (e) state:
"(a) A lawyer employed or retained to represent an organization represents the organization as distinct from its directors, officers, employees, members, shareholders, or other constituents.
". . .
"(d) In dealing with an organization's directors, officers, employees, members shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer believes that such explanation is necessary to avoid misunderstandings on their part.
"(e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders."
The commentary to MRPC 1.13 clarifies that the rule applies to the representation of governmental agencies. A city council is clearly a governmental agency. Therefore, the attorney/client relationship exists with respect to the lawyer and the city council, but not between the lawyer and any individual city council members. In carrying out this duty, the lawyer must comply with the directive of the city council and draft an ordinance banning in-line skating on city sidewalks.
The Committee is aware that some locales, through statute, ordinance, contract, etc., authorize public lawyers to render legal services to the highest decision-making body of the locale and to subordinate departments or affiliate agencies. In such situations the lawyer has more than one "client," and perhaps more than one client "entity." The facts provided do not reveal any special authorizations of this type, so we address the inquiry as one in which the lawyer is asked to render legal services to a new client.
In the course of the lawyer's representation of the city council, the lawyer is obligated to competently represent the client. MRPC 1.1 requires "A lawyer shall provide competent representation to a client." In so doing, the lawyer cannot draft a proposed ordinance that would be unconstitutional or unenforceable. The lawyer's goal must be to accomplish the client's request in a way that would be constitutional and, in the lawyer's opinion, enforceable. If the lawyer cannot do so, the lawyer's obligation is to advise the city council that an ordinance would likely be held unconstitutional or unenforceable. MRPC 1.2(c).
MRPC 1.4(b) provides:
"A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."
In the inquiry presented, the city attorney received a request by a dissenting city council member for a separate memorandum opinion addressing the constitutionality and enforceability of the ordinance. MRPC 1.13(d) requires the city attorney to clarify for the dissenting member that the lawyer's client is the city council as an entity, and not the individual members.
Pursuant to MRPC 1.13(e), the city attorney may comply with the request of the dissenting member only if permitted by MRPC 1.7. It appears that the dissenting member was seeking an opinion that such an ordinance would not be constitutional or enforceable in court. Such a request would accomplish the needs of the individual council member, but not the directive of the majority of the city council. The city attorney cannot comply with this request to provide legal services to the city council member. To serve the needs or request of an individual city council member which are in conflict with the majority views of the city council would subject this lawyer to a conflict of interest in violation of MRPC 1.7(b).