May 25, 1980
It is neither improper nor unethical for a city attorney otherwise possessing the right to conduct a private law practice in addition to discharging his or her duties as a city attorney, to defend in courts of this or other states, persons charged with criminal or ordinance violations in relation to offenses not having occurred in his or her employing community and this is so even if the ordinance or analogous statute alleged to have been violated is the same or similar in context to a comparable ordinance of his/her employing community. However, in order to avoid the appearance of impropriety, the lawyer should carefully consider whether or not he or she should accept representation of defendants in cases arising in communities immediately adjacent to the employing community.
The county in which you sit as judge as nine different cities and villages, each actively prosecuting persons who violate its ordinances, all in the same district court. Each city and village has hired its own city attorney for this purpose from the active members of the Bar in the jurisdiction.
Attorney A presently prosecutes such ordinance violations for four of these public entities. Attorney A also defends persons charged with committing similar violations, and violations of the Michigan criminal statutes, in cases where the charges have been instituted by other communities Attorney A does not represent.
Recently, Attorney A has been retained by one of the communities to prosecute ordinance violations. Attorney B is a member of the most active criminal defense firm in the area and Attorney B's firm handles nearly fifty percent of all such cases.
Neither A nor B do defense work in cases involving cities or villages for which they perform prosecutorial functions. However, since all nine communities prosecute their ordinance violations in the same court, it is not unusual to see both A and B act as prosecutor and defense attorney in the same court on the same day. You are concerned with maintaining the integrity of your court and are of the opinion that such conduct gives the appearance of impropriety. Additionally, you question whether such conduct creates a conflict of interest.
This Committee is prohibited from answering inquiries concerning the conduct of another or concerning conduct that has already taken place. However, because the conduct questioned by you could reflect on your judicial integrity and because such conduct is likely to occur in the future, we are able to answer your inquiry.
He situation you have described is very similar to that considered by the Committee in C-212. The Committee opined the issue as follows:
". . . [may] a city attorney or attorneys employed by a municipality as its counsel and charged with the responsibility for the prosecution of crimes and misdemeanors made so by city ordinance, . . . handle the defense of criminal cases in the same and other jurisdictions and political subdivisions."
In that opinion the Committee considered three underlying principals as bearing upon the propriety of the conduct in question, those are (a) Conflict of Interest. (b) Necessity for upholding the honor and dignity of the profession of the law. (c) The integrity of the profession in the public eye.
"It is neither improper nor unethical for a city attorney otherwise possessing the right to conduct a private law practice in addition to discharging his or her duties as city attorney, to defend in courts of this or other states, persons charged with criminal or ordinance violations in relation to offenses not having occurred in his/her employing community and this is so even if the ordinance or analogous statute alleged to have been violated is the same or similar in context to a comparable ordinance of his or her employing community. However, in order to avoid the appearance of impropriety, the lawyer should carefully consider whether or not he or she should accept representation of defendants in cases arising in communities immediately adjacent to the employing community."
Thus, under C-212 the general rule is that such conduct is neither improper nor unethical. However, in the particular factual situation described, some of the communities in which attorney A and B represent defendants might be contiguous to those in which they perform their prosecutorial functions as city attorneys. As pointed out in the holding of C-212, this could give the appearance of impropriety. Further increasing the appearance of impropriety is the consideration that these communities all try their cases in the same court, and thus, it is quite possible for these attorneys to act both as prosecutor and defense attorney on the same day in the same courtroom.
Even though these lawyers should carefully consider whether or not they should accept representation of defendants in these types of cases, such conduct does not violate the minimum standards set out in the Code of Professional Responsibility. Whether or not, in your discretion, you feel it necessary to use your judicial powers to preserve the integrity of your courtroom, and to avoid even the appearance of impropriety is, of course, a decision for you to make. Of some relevance to such a decision is that if you prevent attorneys A and B from doing defense work on cases arising in the other communities, you may seriously hamper the ability of criminal defendants to obtain qualified attorneys to represent them in your jurisdiction, particularly in view of the small size of the active bar.