The Dual Representation Dilemma:

Questions of Legal Ethics and Constitutional Due Process

Municipal Attorneys 2010 Summer Conference

Chris McLaughlin, UNC School of Government

Discussion Hypotheticals

(with thanks to Ralph Karpinos and Gregg Schwitzgebel)

  1. Board of Adjustment

As town attorney for Tarheel Town, you supervise two assistant town attorneys, Susan and Tom. As part of her work with town employees, Susan routinely offers guidance to the town’s zoning administrator. Tom routinely works with and advises the Board of Adjustment (“BOA”). A high-profiledecision by the zoning administrator has been appealed to the BOA by a property owner, Carolina Developers, Inc.

  1. At the hearing, may Susan assist the zoning administratorwhile Tom advises the BOA?
  2. If Susan or Tom seek your advice on this appeal, how should you respond?

Same facts as above, but assume instead that you are the sole attorney retained by Tarheel Town and that the zoning administrator sought your advice prior to issuing the initial decision regarding Carolina Developers.

  1. Can you advise the BOA during the hearing on this matter and its subsequent deliberations?

Same facts as “a” above. Two days before the BOA hearing, you run into a BOA member, Amy, at the grocery store. Amy says, “I see we have yet another appeal from Carolina Developers on the agenda. I am really getting tired hearing those guys’ empty promises.” Before you can respond, Amy’s cell phone rings. She says “See you on Tuesday” and answers the call while walking away.

  1. What, if anything, do you do?

Same facts as “a”above, but prior to becoming town attorney you represented Carolina Developers, Inc. on several real estate transactions, including the purchase of the property which is the subject of the BOA appeal.

  1. Does your prior representation of Carolina Developers, Inc. affect your involvement in the appeal? Does it affect Tom and Susan’s involvement? Would your answers change if you were outside counsel retained by Tarheel Town and Susan and Tom were your partners?
  1. Code of Ethics

Blue Devil City recently adopted a Code of Ethics in accordance with GS § 160A-86. The Code includes a procedure for censuring a member who violates a substantive provision of the Code. Blue Devil City Councilperson Kerry has been the subject of several unflattering newspaper articles detailing conduct that, if true, would violate the Code. At the first council meeting following publication of the articles, a majority of the council votes to open an investigation of the matter to determine if probable cause exists to initiate censure proceedings against Kerry, as provided for in the Code of Ethics. The council directs City Attorney Ann to conduct the probable cause investigation.

  1. Must/may/should Ann accept this assignment?
  2. Are the documents created during this investigation subject to disclosure under NC public record laws?

Assume Ann conducts the investigation and concludes that probable cause exists. After receiving her report, the council decides to schedule a censure hearing for Kerry, in accordance with the Code. The council directs Ann to present evidence against Kerry at the hearing.

  1. If Ann presents the evidence against Kerry, may she also Ann advise the council during the hearing and subsequent deliberation of a censure motion? If Ann has an assistant city attorney, may the assistant city attorney advise the council while Ann presents evidence? If Ann is outside counsel, may her law firm partner advise the council while Ann presents evidence?

Assume that the council votes to censure Kerry. Two weeks later Kerry files a federal lawsuit against Blue Devil City and the council, alleging various constitutional violations.

  1. May Ann represent Blue Devil City in the lawsuit filed by Kerry? If Ann is outside counsel, may Ann’s law partner do so?