Understanding the role of the city or town attorney

Appointment and supervisory authority over a municipal attorney should be viewed as a responsibility and duty, not a privilege or power to be used to control or obtain particular results. The Rules expect the attorney to operate with a level of professional independence and to act in the best interests of the municipal organization. The municipality and those running it need candid and thorough advice to ensure its proper functioning in the public interest.  

What not to expect from your municipal attorney 

Some other things your city or town attorney can’t do — no matter what your expectation, goals, or local law requires — include: 

• Allowing their independent professional judgment to be replaced by political dictates or client expectations (Rule 2.1) 

• Counseling the municipality to engage or assisting the client in criminal or fraudulent conduct (Rule 1.2(d)) 

• Withholding information to serve their own or someone else’s interests or convenience (Rule 1.4, Cmt. 7) 

• Using or revealing information learned in the course of representing a client to disadvantage the client or former client (except when specifically allowed)  (Rules 1.6, 1.8(b), and 1.9(c)) 

• Failing to disclose information when necessary to avoid death or substantial bodily harm and to prevent a client’s commission of a crime or fraud or to mitigate injuries from that crime or fraud (Rules 1.6 and 4.1(b)) 

• Asserting frivolous claims or defenses or abusing legal procedure (Rule 3.1) 

• Delaying litigation for improper reasons (Rule 3.2) 

• Making false statements to courts or legislative or adjudicative bodies, failing to correct false statements, offering false evidence, and failing to disclose legal authority (Rule 3.3) 

• Unlawfully altering, destroying, or concealing documents or other evidence, falsifying evidence, or assisting someone in doing so (Rule 3.4)  

• Knowingly making false statements of material facts or law as part of the representation (Rule 4.1(a)) 

• Using means that lack a purpose other than to embarrass, delay, or burden a third party as part of the representation (Rule 4.4(a)) 

• Threatening or presenting criminal, administrative, or disciplinary charges to gain an advantage in a civil matter (Rule 4.5(a)) 

• Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (including in criminal investigations) (Rule 8.4(c)) 

• Exhibiting, appealing to, or creating bias because of a person’s race, sex, gender identity or expression, sexual orientation, religion, national origin, ethnicity, disability, age, or socioeconomic status, as part of the representation (Rule 8.4(g)) 

   

Municipal boards and officials, in respect of the law and their defined roles and responsibilities, should never find themselves presenting such actions by themselves. Giving the municipal attorney the expectation that they are expected to violate these and other rules would be unfair and unconscionable.  

Why is the lawyer always talking? 

Despite suspicions that we just can’t help it, lawyers often aren’t raising their hands to speak in meetings or sending memos just for fun. The Rules expect that a lawyer will render “candid advice” and consult with the client about the client’s objectives, keep the client informed, respond to requests for information, and explain matters to allow the client to make informed decisions. Rules 1.4 and 2.1.  

Typically, the lawyer does not have an obligation to give advice until asked. But, “when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty . . . may require that the lawyer offer advice if the client's course of action is related to the representation.” Rule 2.1, Cmt. 5. Lawyers even have an obligation to report to higher authorities when constituents of the municipal organization violate the law or legal obligations. Rule 1.13(b).  

Sometimes the municipal attorney can’t offer any advice on an issue and may suggest the need to engage special counsel. If your municipal attorney raises an issue like this, it is important to understand that it isn’t an excuse for not wanting to perform work or because of a personal grievance. 

The recommendation to obtain special counsel (or personal counsel, for individual issues) is rooted in ethical responsibilities like: 

• Ensuring that the lawyer provides “competent representation,” including the knowledge, skill, thoroughness, and preparation necessary (Rule 1.1) 

• Resolving a fundamental disagreement as to the client’s objectives and the means by which they are to be achieved (Rule 1.2, Cmt. 2) 

• Controlling workload so that work can been handled with “reasonable diligence and promptness” (Rule 1.3) 

• Avoiding prohibited conflicts of interest (Rules 1.7-1.12). Conflicts, under the Rules, can arise from the lawyer or their firm’s concurrent or prior representation of another client with materially adverse interests to the current client, prior participation in a matter as a public officer or judge, and more.  

• Not using or revealing information learned in the course of representing a client to disadvantage the client (except when specifically allowed)  (Rules 1.6, 1.8(b), and 1.9(c)) 

• Explaining that the municipality’s interests are adverse to those of the individual constituents to whom a charter requires them to provide legal counsel (Rule 1.13(f)) 

• Avoiding a violation of the Rules through the representation or because the lawyer’s mental or physical conditions impairs the representation (Rule 1.16)(a))