April 2, 1986
A lawyer who is an elected member of a city council may not represent defendants in criminal charges pending before the district court for the city where the complaining witness is a police officer of the city.
References: MCPR DR 5-101 and 5-105; Op 139, CI-42, CI-54.
A lawyer who serves on the local city council asks whether it is permissible to represent a client in the district court in a criminal action, where a police officer of the city will be a witness.
Based upon Op 139, CI-42 and CI-54, the lawyer may not undertake the representation. As in the other opinions, the concern is that the lawyer will not be able to preserve the appearance of undivided loyalty and avoid any appearance of conflict if the lawyer represents the client. Opinion 139 states:
"Canon 6 of the Canons of Professional Ethics forbids a lawyer from representing conflicting interests when in behalf of one client it is his duty to contend for that which duty to another requires him to oppose . . . . The vigorous protection of a client's rights to which he would be entitled while the lawyer-major [as was the fact in Opinion 139] was conducting his defense in a criminal case in the Circuit Court, would frequently require searching cross-examination, and it might foreseeably involve a full scale attack upon the credibility of one or more of the prosecution's witnesses. Since this might include members of his own City's police department whose jobs and livelihood would, in a measure, be controlled by the lawyer-major's own appointees, the trial and defense could scarcely be conflicting with his interest as a lawyer."
While the facts in Op 139 are slightly different from those in this inquiry, Opinion 139 is still persuasive authority. See MCPR DR 5-101 and 5-105.
It is irrelevant that the police officers for the city are members of a police union. The union contract does not adequately "insulate" the appearance and fact of control by the lawyer/commissioner over the employment of the police officer/complainant.
Therefore a lawyer who is a city councilmember of a municipality must refrain from defending in any court persons accused of crime where police officers of that city are the prosecuting officers or complaining witnesses.