June 5, 1996
When outside counsel employed by a county board to handle condemnation proceedings seeks a waiver of possible conflicts of interest, only the county board has authority to determine whether the waiver should be granted. The county board may receive advice from the county attorney regarding whether the waiver should be granted.
The county attorney is not ethically prohibited from providing general information to inquirers concerning pursuit of development opportunities in the county. If a developer seeks specific information about particular opportunities, the county attorney should first determine whether the developer is represented by counsel in the matter to be discussed, and if so, seek consent of the developer's counsel in the matter before proceeding.
References: MRPC 1.2, 1.4(b), 1.7, 4.1, 4.2, 4.3.
Upon recommendation of the county attorney, a county board has hired outside counsel to handle a pending condemnation matter. Thereafter, the county attorney serves in an information gathering and essentially liaison capacity to outside counsel. The county attorney is aware that three of the five members of the county board of commissioners own land subject to the condemnation.
Another client of outside counsel is a developer interested in developing the land subject to the condemnation. Outside counsel has requested a meeting with the county attorney to discuss a "conflict waiver." The CEO of the developer has also sought to meet with the county attorney to discuss the question of land development. The lawyer seeks advice with respect to meeting with the individuals in question and what ethical obligations apply.
MRPC 1.2 provides that a lawyer may act on behalf of a client within the scope of authority mutually agreed upon with the client, so long as the client is not seeking the lawyer's assistance in carrying out unlawful activity. MRPC 1.4(b) requires a lawyer to keep a client informed. Therefore, while the county attorney may deal with outside counsel in routine matters necessary to facilitate representation of the county board in the condemnation matter in question, the county attorney may not unilaterally resolve a question of conflict or waiver thereof. Rather, the question must be brought to the attention of the client, the county board, for response.
MRPC 1.7 provides that a county attorney may not represent a client where such representation would be materially limited by the county attorney's obligations to another client, unless the clients consent. Outside counsel must resolve whether it may continue to represent the county board in the condemnation matter when another of its clients, a developer, has an interest in how the condemnation progresses.
If there is a conflict which may be waived by the client, the waiver must be made by the county board itself. The county attorney may be in a position to counsel the county board in determining whether a conflict waiver should be granted. It is not improper for the county attorney to discuss the potential conflict situation with outside counsel in order to obtain as much relevant information as possible to properly advise the client. MRPC 1.4(b).
The county attorney regularly handles the legal business of the county, and may normally be the contact for companies seeking to negotiate development opportunities with the county. In dealing with the developer, the county attorney should first determine whether the developer is seeking general information, which would normally be available upon request, or whether the developer is seeking specific information about the on-going condemnation proceedings or about negotiating a particular transaction. After the subject matter of the contact is established, the county attorney should clarify his/her role, MRPC 1.2, 4.1.
If the developer wishes to discuss general business opportunities, the county attorney may be able to provide general information, but not legal advice, about how those matters may be explored with appropriate county departments.
If the developer wishes to discuss details of the condemnation efforts, this is information of the county attorney's client, the county board, and a matter on which the county attorney does not represent the county board. Those questions should be referred to the outside counsel.
If the developer wishes to discuss specific development opportunities, the county attorney should inquire whether the developer is represented by counsel in the matter, and if so, the county attorney should not pursue such conversations without the consent of the developer's counsel. MRPC 4.2, 4.3. At preliminary stages, a developer would not necessarily have decided whether to pursue a particular legal transaction, and might not have contacted counsel regarding possible opportunities. Although the county attorney knows the outside counsel has represented the developer on past projects, or even current projects, the county attorney should not assume that the outside counsel is necessarily representing the developer in opportunities in this county.