1815
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| A lawyer representing a locality has appeared as counsel of record for the Board of Zoning Appeals ("BZA") in an appeal to the Circuit Court by a land use applicant who lost before the BZA. In a totally unrelated matter involving different land and different issues, the lawyer has now been asked by a zoning administrator to represent him in an appeal of a BZA decision to the Circuit Court (in which the petition will name the BZA as a defendant). In contrast to Virginia LEO 1785 (which involved a lawyer representing multiple clients on the same zoning variance), this situation involves multiple representations on different matters. The lawyer's direct adversity to the BZA (which is a client in the other matter) triggers Rule 1.7(a)(1), and there is thus no need to analyze whether the lawyer's representation will be "materially limited" under Rule 1.7(a)(2) which "must always be decided on a case-by-case basis, with a context driven analysis rather than a bright line rule". Before proceeding in direct adversity to his client the BZA, the lawyer must 1) "reasonably believe" that he can provide "competent and diligent representation to each affected client" (which uses an objective "disinterested attorney" standard under Comment 10); (2) determine that the representation is not prohibited by law; (3) assure himself that he is not representing adversaries in the same proceeding; and (4) memorialize the client’s consent in writing (the Bar explains that "obtaining a client's signature to acknowledge the consent is advisable in most instances," but a lawyer may meet that requirement if the lawyer "merely makes a note to file regarding what transpired").The lawyer had "commented" on the merits of the second matter, but the lawyer does not believe that the BZA "considered the comments to be legal advice." The Bar warns that LEO 1785 would apply if the BZA "reasonably considered" the lawyer's comment to be legal advice (explaining that the lawyer had the responsibility to explain his role at the hearing, and "expressly communicate to the BZA that he was not appearing before them as their legal advisor" if he was not). |