Legal Ethics Opinion No. 1393

Conflict of Interests--Multiple Clients--County Attorney: County
Attorney Representing Builder Before State Board; Previously
Represented Local Building Official Before the Local Board of
Zoning Appeals

You have advised that Clients contracted to have a home built by
Builder and, after moving into the home, discovered construction
problems and violations of the State Building Code.  Builder
brought suit against Clients for the remainder of the sum due
under the building contract and Clients counterclaimed for the
cost of correction of the deficiencies and other contract
violations.  At that time, Lawyer X represented Builder.  

During the pendency of the suit, Local Building Official
reinspected, discovered numerous building violations, and 
ordered Builder to correct the violations.  Clients, claiming
that defects had not been corrected,  requested a hearing before
the local Board of Building Code Appeals which confirmed the
existence of violations and ordered their correction by Builder. 
Both the Board and the Official were represented by the County
Attorney, Firm B, at the hearing.  At the return date, Builder
presented evidence to the Board that he had corrected the
deficiencies; Clients disputed his claim; and, although ordering
other corrections, the Board determined that the home was in
compliance with the Building Code.  Clients appealed the local
Board's decision to the state Board of Technical Review which
overruled the local Board, determined that the home continued to
have Building Code violations, and ordered Clients to submit
plans for correction of the deficiencies.  County Attorney, Firm
B, represented Local Building Official, appellee before the state
review board.  The issue of the correction of the deficiencies,
as found by the state Board, remains pending before the Local
Building Official.
At the time of the scheduled trial on Builder's and Clients'
cross-claims, Firm B entered an Order allowing them to be
substituted for Lawyer X as counsel for Builder.

Finally, you have informed the committee that a member of Firm B
is also a trustee on a deed of trust on the house which is the
subject of the controversy. 

You have requested that the committee opine as to the propriety
of Firm B's current representation of Builder, while the Firm, as
part-time County Attorney, continues to represent local Building
Official and local Board of Building Code Appeals, and also while
a member of the firm serves as trustee on a deed of trust on the
subject house.

The appropriate and controlling disciplinary rules to the issue
you raise are DR 5-l05(A and C), which requires that a lawyer
decline proffered employment if the exercise of his independent
professional judgment in behalf of a client will be or is likely
to be adversely affected by the proffered employment, except if
it is obvious that he can adequately represent the interest of
each and if each consents to the representation after full
disclosure; DR 5-l05(E), which holds that, if a lawyer is
required to decline employment under DR 5-l05, no partner or
associate of his or his firm may accept such employment; and DR
9-l0l(B), which prohibits a lawyer from accepting private
employment in a matter in which he had substantial responsibility
while he was a public employee.  Of particular note is the lack
of any curative provision, i.e., client consent, in the latter
disciplinary rule.

Under the circumstances you posit, the committee is of the
opinion that a conflict exists under DR 5-l05(A) since Firm B
represents and advises the local Board and Official who hold the
power to find Builder out of compliance with the Building Code. 
Accepting representation of Builder would place Firm B in the
untenable position of representing him as plaintiff in an action
the essence of which would be to challenge the findings of the
Board and Official, regardless of whether the Board and Official
are actual parties to the action.  Considering the respective
positions of Client, Board and Official, and Builder, the
committee is of the view that it is not obvious that Firm B can
adequately represent the interest both of Builder and of Board
and Official in the litigation and administrative proceedings in
question.  Without the ability to meet the threshold test of
obviously adequate representation, client consent will not cure
the impropriety.  See LEOs #1128, l239, 1304.

Furthermore, the committee believes that Firm B's acceptance, in
its private practice capacity, of representation of Builder in
the civil action would be per se improper under the constraints
of DR 9-l0l(B), since the firm has had substantial responsibility
for the specific matter in question in its capacity as County
Attorney.  The committee cautions that the County Attorney must
apply a heightened sensitivity to public perception regarding
part-time practice of a public official.  See LEO #605, l27l; see
also ABA Formal Op. 342 at 114-1l9.

Finally, it is the committee's opinion that the fact that a
member of Firm B serves as trustee on the deed of trust on the
subject house does not raise an impermissible conflict ripe for
consideration since the facts do not indicate that any
foreclosure is imminent.

Committee Opinion
January 14, 1991

Reconsidered and Affirmed
March 21, 1991