Local governments routinely hire outside attorneys. Sometimes municipalities hire an outside firm to handle all of its day-to-day legal work as the “municipal attorney.” Other times the role is more limited. A town may retain a law firm to handle a specific, complex land-use matter. A village may engage special counsel for litigation. A county may hire outside lawyers for labor, employment, environmental, or other specialized matters. This is the familiar role of outside municipal or general counsel: providing legal services to the municipality when its existing legal resources are unavailable, overburdened, or lack particular expertise.
But there is another, less familiar role for outside counsel that can be equally important: Outside Government Counsel retained to represent a particular branch, board, or governmental entity when an internal conflict arises within the municipality itself.
Not All Municipal Legal Representation Is the Same
In the traditional outside-general-counsel model, the lawyer’s client is the municipality as a whole. The attorney may become a trusted, ongoing legal resource, providing advice on contracts, legislation, compliance, litigation, land use, employment, and other matters. The New York State Bar Association has described the value of an outside general counsel in terms of providing a tailored, comprehensive legal resource while avoiding the cost and overhead of maintaining a full-time in-house legal department.
Outside counsel may also be retained for a particular project or specialized matter. These arrangements are commonplace in municipal government and can provide a local government with specialized legal experience when needed.
Outside Government Counsel serves a different function. The issue is not simply that the municipality needs another lawyer. The issue is that two parts of the same government may have competing legal interests concerning the exercise of their respective governmental powers.
For example, a city council and mayor may disagree about the scope of their respective authority. A county legislature and county executive may take different positions concerning a legislative or administrative action. A municipal board may find itself on the opposite side of a legal dispute with the municipal officer or body ordinarily served by the municipality’s attorney.
In those circumstances, the question becomes: Who represents the governmental body whose legal position conflicts with that of the municipality’s existing counsel?
The Municipal Attorney Cannot Always Represent Everyone
New York State law recognizes that municipal governments are not legally monolithic when their constituent bodies have genuinely conflicting interests.
The Court of Appeals addressed this problem more than fifty years ago in Cahn v. Town of Huntington. There, the Town Board and Planning Board were on opposite sides of litigation. The town attorney could not adequately represent both. The Court of Appeals recognized a limited implied authority for a municipal board or officer to retain independent counsel when the municipal attorney is unable, unwilling, or disqualified from acting because of the conflict. The Court explained that such authority is necessary to allow governmental bodies to perform the functions for which they were created.
In 2023, the Appellate Division, Second Department applied that rule directly to a dispute between the Mayor and Common Council of the City of Poughkeepsie. The Common Council had authorized itself to retain separate counsel in a dispute with the Mayor concerning the separation of governmental powers. The court upheld the Council’s authority to do so, concluding that the Corporation Counsel and Mayor were taking a position contrary to the Common Council.
The decision is significant because it illustrates the precise circumstance in which Outside Government Counsel can be necessary: not because one side wants a second opinion, but because the ordinary municipal attorney cannot ethically or effectively represent both sides of an actual governmental conflict.
New York State courts have applied the same principle in other contexts. In Matter of Village Board of Trustees of Village of Pomona v. Banks, for example, the Appellate Division recognized the right to separate counsel where the municipal attorney could not adequately represent an officer because of a conflict. Similarly, Matter of Commco, Inc. v. Amelkin recognized that a zoning board could retain independent counsel when the town attorney could no longer adequately represent its interests because of a conflict with the town board.
These cases establish an important proposition: the existence of a municipal attorney does not necessarily eliminate the need for independent counsel for another governmental body.
Outside Government Counsel Protects the Governmental Entity’s Independence
The value of Outside Government Counsel is therefore institutional, not political.
A legislative body must be able to understand its own legal authority. A board must be able to obtain independent advice about the scope of its powers. An elected body should be able to evaluate proposed actions based on legal advice that is not controlled by a governmental actor whose interests are adverse to it. This enables them to act and carry out their duties and powers effectively.
Outside Government Counsel provides that independent legal channel. This does not mean that Outside Government Counsel exists to manufacture disagreements or encourage litigation; quite the opposite. Outside Government Counsel can help resolve disagreements before they become lawsuits by identifying the actual legal issues, separating legal questions from policy disagreements, and explaining the lawful options available to each governmental body.
Independence Can Improve Decision-Making
When a governmental entity or board has Outside Government Counsel, its officials and members can ask difficult legal questions without requiring the municipality’s existing attorney to advise parties whose legal interests may conflict. That can be particularly valuable in matters involving:
- separation of powers;
- competing interpretations of a local charter;
- legislative versus executive authority;
- disputes concerning appointments or governmental structure;
- subpoenas, investigations, or oversight;
- claims that one governmental body has exceeded its authority;
- litigation between municipal boards or officers;
- legislation affecting the authority of another governmental branch; and
- other circumstances in which the municipality’s ordinary legal representation presents a genuine conflict.
The benefit is not that this will necessarily produce a different answer. Sometimes it does not. Outside Government Counsel may conclude that the existing municipal attorney’s legal position is correct. That is still valuable. The governmental body has received an independent legal analysis and can make its decision with a clearer understanding of its authority, risks, and available alternatives.
Outside Government Counsel should therefore be viewed as a tool for institutional stability rather than a mechanism for creating conflict.
New York State law expressly allows government entities to retain Outside Government Counsel where a potential conflict exists, or the ordinary counsel cannot carry out its function with respect to all government entities. The decisions referenced herein recognize that retaining such Outside Government Counsel is authorized where independent representation is necessary for the governmental body to carry out its official responsibilities and the ordinary municipal attorney cannot adequately act because of the conflict.
That authorization is important. Retaining Outside Government Counsel should not be a routine response to every policy disagreement between elected officials and is not needed in every situation. A difference of opinion is not necessarily a legal conflict. Nor should every governmental disagreement result in multiple lawyers advancing competing positions on behalf of the same municipality.
But when a genuine institutional conflict exists, or when a government entity cannot get the legal counsel they need from the municipal attorney, the law recognizes that the affected governmental entity may need an independent voice to serve as Outside Government Counsel. That is where Outside Government Counsel can make a meaningful difference.
As local governments confront increasingly complex legal questions, independent guidance can give a legislative body, board, or other governmental entity the ability to understand and exercise its lawful authority while respecting the authority of other parts of government. The objective is not to determine which branch is right or wrong. It is to ensure that each governmental body can perform the function assigned to it by law, with competent and independent legal advice when the ordinary channels of municipal representation cannot provide it. That is ultimately good for everyone who depends on local government to function effectively: elected officials, municipal employees, taxpayers, residents, businesses, and the community as a whole.
Jacob H. Zoghlin is a Partner in Underberg & Kessler LLP’s Litigation department and chairs the firm’s Environmental & Energy Law and Municipal practice groups. His practice focuses on environmental, land use, zoning, energy, and municipal law. He regularly represents towns, developers, and community members in matters involving SEQRA, zoning, permitting, and land use litigation. For questions about outside government counsels and how they can help in your municipality, contact Jacob at (585) 258-2834 or jzoghlin@underbergkessler.com
