Ethics Opinion 231

Lawyer as Legislator

Lawyer as Legislator

A D.C. council member may participate in council consideration of legislation affecting clients of the member's law firm.

Applicable Rules

• 1.2(b) (Scope of Representation)
• 1.3(b)(3) (Diligence and Zeal)
• 1.7(b)(4) (Conflict of Interest)
• 6.4 (Law Reform Activities)

Inquiry

The inquirer is a member of the D.C. Council who is also a member of a law firm. The member's firm limits its practice to personal injury, workers compensation, medical malpractice and construction cases. The member asks whether and how the Rules of Professional Conduct apply to the member's role as a Council member, with particular reference to voting on legislation concerning liability of physicians. There is no suggestion that the legislation would affect any present client of the firm, although that may be a possibility, but it could have an adverse impact on the firm's practice in the future.

Discussion

The subject of legal or ethical constraints on the conduct of a practicing lawyer who is also an elected member of a legislative body is addressed specifically and primarily by legislation and regulations.¹ No Rule directly applies to or limits a lawyer's conduct, simultaneously, as a member of a law firm and a member of an elected legislative body. Given the frequency with which lawyers are also legislators, one would expect any additional ethical constraints on such a lawyer's activities or duties to be set forth expressly in the Rules. Accordingly, we believe that the sometimes-vague provisions of general rules should not too readily be construed to impose such constraints unless clearly required by their language or purpose.

Rule 1.11, like its counterpart in the ABA Model Rules, applies only to "successive government and private employment." In Opinion No. 31, with reference to Congress, we noted that the former Code of Professional Responsibility applied "only to staff attorneys acting in their capacity as attorneys. It is not within our province to pass upon the propriety of conduct by congressmen, who may or may not be lawyers, but are acting in any event as congressmen."²

ABA Informal Opinion 1182 (1971) concluded that "[n]o Disciplinary Rules of the Code of Professional Responsibility contain a provision that will necessarily and always prohibit a lawyer's representing either an individual or an organization that is likely to be affected by the passage or defeat of proposed legislation, even though the lawyer also is a legislator." The Opinion noted that "[o]ur conclusions would be substantially the same under the former Canons. See Opinion 306 (1962)."

ABA Formal Opinion 306 (1962) concluded that, under the still-earlier ABA Canons of Ethics, it was permissible for a lawyer to appear before or lobby a legislative body of which a member of the firm was a member, where the applicable law expressly or by necessary implication permitted such action or provided for the member to disqualify himself. The rationale was that the consent needed to permit representation of conflicting interests under Canon had been given.³

The Rules do impose specific obligations on a lawyer "representing a client" before a legislative body (see Rule 3.9), but they are not implicated here if, as we understand, neither the member nor others in the member's firm are representing clients before the Council concerning the legislation.

The conclusion that the Rules were not generally intended to reach the actions of a lawyer as a legislator is even stronger than under the former Code, in view of other provisions added to the Rules that distinguish between the role of a lawyer in representing clients and the lawyer's role as a citizen. For example, Rule 1.2(b), which had no counterpart in the Disciplinary Rules of the Code, provides that "a lawyer's representation of a client . . . does not constitute an endorsement of the client's political, economic, social, or moral views or activities." Similarly, Rule 6.4 encourages lawyers to engage in law reform activities, and permits a lawyer to serve a law reform organization even though the reform may affect the interests of a client of the lawyer. However, Comment 2 to Rule 6.4 notes that a lawyer participating in such activities should be mindful of obligations to clients under other rules, particularly 1.7.

Although there was no comparable rule under the Code, similar principles were reflected in EC 8-1, which the Committee addressed in Opinion No. 204, which was also stated to apply to present Rules 1.7 and 6.4 as then proposed. See id. n.1. There we concluded that a law firm that represents clients before an agency could in its own name file comments on a proposed rule, unless the comments, if adopted, could adversely affect pending or imminent filings by its clients. As the committee noted, "[l]awyers do not completely sacrifice their First Amendment rights by representing clients…" Id. p. 5.

Opinion No. 204 also addressed DR 7-101(A)(3) under the Code, which was carried forward (in the D.C. Rules but not the ABA Model Rules) as Rule 1.3(b)(2). It provides that "a lawyer shall not intentionally… (2) prejudice or damage a client during the course of the professional relationship." The Committee found the meaning of "during the course of the professional relationship" clarified by EC 7-17 (id. p. 4, quoting EC 7-17):

The obligation of loyalty to his client applies only to a lawyer in the discharge of his professional duties and implies no obligation to adopt a personal viewpoint favorable to the interests or desires of his client [footnote set forth below]. While a lawyer must act always with circumspection in order that his conduct will not adversely affect the rights of client in a matter he is then handling, he may take positions on public issues and espouse legal reforms he favors without regard to the individual views of any client. [Emphasis added.⁴

As noted, Opinion No. 204 concluded that the law firm could not submit its own comments if, were they adopted, they could prejudice applicants represented by the firm with respect to the subject matter of the comments. There the Committee treated "during the course of the professional relationship" as having only a temporal dimension and as applying to a lawyer's actions taken outside of the professional relationship. Applying the same reading here, there is an additional issue not specifically addressed in Opinion No. 204, i.e., whether a lawyer-legislator's vote on legislation adversely affecting a client's interests can be said to constitute "intentional[ ] . . . prejudice or damage." Where the prejudice in question results from a lawyer's actions as a legislator, in carrying out the obligations of that office, any such prejudice would seem an incidental consequence of the legislator's exercise of public duties. Accordingly, we would not regard the lawyer as having "intentionally" prejudiced the client, absent evidence of a subjective intent to do so.⁵

There remains the question whether the inquiry is affected by more general constraints of Rule 1.7. Since we understand that neither the Council member nor other members of his firm are "represent[ing] clients" with respect to passage of the legislative proposal, the rules concerning conflicts are implicated primarily with respect to their impact on representation by the member or his firm of clients who might be adversely affected by legislation on which the member may be called to upon to act as a legislator.

Rule 1.7(b)(4) provides that, without the client's informed consent, a lawyer shall not represent a client with respect to a matter if:

the lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer's responsibilities to or interests in a third party or the lawyer's own financial, business, property or personal interests.

It is important to note that Rule 1.7(b)(4) does not address a situation where a lawyer's actions as a legislator could adversely affect the interests of a client or potential client. Rather, it only addresses situations where "the lawyer's professional judgment" on the client's behalf in a matter will or may be adversely affected. Even if the lawyer's position or responsibilities as a legislator could be deemed to involve responsibilities to or interests in "a third party" (e.g., constituents, the legislative body), or "the lawyer's own . . . interests"—questions we need not decide—nothing in the facts of the present inquiry suggests any adverse effect on the lawyer's professional judgment in the representation of clients. Accordingly, we find the situation not covered by Rule 1.7(b)(4) and hence that there is no need for client consent.

We conclude that, on the facts posed by the inquiry, no provision of the Rules would require client consent or preclude the Council member from voting on legislation that could affect the future business of the member's law firm, assuming that the member may do so consistently with applicable law, an issue we do not address.

Inquiry No. 91-6-26
Adopted: September 15, 1992

1. In Interpretative Opinion No. 91-20, dated May 31, 1991, the Director of the District of Columbia’s Office of Campaign 1 Finance concluded that the member’s vote in opposition to a bill limiting liability of physicians in free health care clinics could create the appearance that the member’s official position has been used to obtain financial gain for the member’s firm, in violation of D.C. Code 91-1461(b), which would require a written statement of potential conflict. The Opinion further found no law mandating recusal of the member. The Opinion noted that there is some question about the application of 18 U.S.C. § 208 to Council members, and requested an opinion from the United States Office of Government Ethics on that issue, but we are advised that no opinion has yet been provided.
2. Similarly distinguishing between the roles of lawyers qua lawyers and lawyers in legislatures, the Sims Committee Report on the Rules as proposed by the D.C. Bar concluded that “lawyers employed in the judicial and legislative branches of government...who are in fact employed and functioning as lawyers in the Judicial and Legislative branches should be governed by the same Rules as Executive branch lawyers. D.C. Bar Special Committee, Report on Government Lawyers and the Model Rules of Professional Conduct 17 (1988). This opinion addresses only the subject of lawyers who are also legislators
3. By contrast, Informal Opinion 1087 (1969) concluded that under Canon 6 neither a lawyer who is a member of the ABA 3 House of Delegates nor a member of his firm could properly represent a client in seeking to influence passage or defeat of a proposal pending before that body, because no rule provided consent and the member was not free to abdicate his functions by not voting.
4. The footnote to EC 7-17 includes the following explanation:
No doubt some tax lawyers feel constrained to abstain from activities on behalf of a better tax system because they think that their clients may object. Clients have no right to object if the tax adviser handles their affairs competently and faithfully and independently of his private views as to tax policy.
5. Opinion No. 204 involved a materially different situation, in which the lawyers had no obligation to participate 5 personally, on their own behalf, in an administrative process that clearly would or could prejudice some of their clients.