Private lawyers selected from a voluntary rotation list by the city attorney's office may act as a special prosecutors to prosecute misdemeanor ordinance violations on behalf of the city attorney's office. As long as the private lawyer's participation as special prosecutor is on a pro bono basis, the lawyer may also represent defendants charged with criminal offenses within the jurisdiction. Where a private lawyer acts as special prosecutor, another member of the same firm may not represent the defendant.
References: MCPR Canons 1, 5, 8; MCPR DR 5-101, DR 5-105; CI-67, CI-104, CI-141, CI-187, CI-202, CI-212, CI-503.
A city attorney asks whether private lawyers may be assigned on a pro bono basis to prosecute misdemeanor ordinances violations on behalf of the city attorney's office in the district court, when the private lawyers also represent respondents to misdemeanor charges in the same court from time to time, as retained counsel or as public defenders. The private lawyers would be selected from the local bar association on a rotating basis, at an expected frequency of two cases per month per lawyer. The authority of the city attorney to prosecute violations of city ordinances derives from MCLA 87.20.
Four previous opinions opine that a city attorney charged with the responsibility for prosecution of city ordinance violations may not represent criminal defendants in the same or other jurisdictions. CI-67, CI-104, CI-141, CI-202. These opinions, which held city attorneys to the same standard as county prosecuting attorneys and their assistants, have been superseded by C-212, which notes that the former opinions' comparison of city attorneys to prosecuting attorneys is invalid, stating:
"A city attorney otherwise possessing the right to conduct a private law practice in addition to discharging duties as city attorney may defend persons charged with criminal or ordinance violations in relation to offenses not having occurred in the city attorney's employing community, even if the ordinance or analogous statute alleged to have been violated is the same or similar in context to a comparable ordinance of the city attorney's employing community. However, in order to avoid the appearance of impropriety, the city attorney should carefully consider the propriety of accepting representation of defendants in cases arising in communities immediately adjacent to the city attorney's employing community."
We believe that C-212 is applicable to the present inquiry with the following limitations:
Provided that private lawyers discharge their function as special prosecutor for the city attorney's office on a pro bono basis, the potential for conflict of interest is minimal. Accordingly, private lawyers are not per se required to refrain from defending criminal cases in the same city in which they are prosecuting ordinance violations as a special prosecutor for the city attorney's office on pro bono basis. However, members of such a special prosecutor's firm may not defend cases handled by the special prosecutor. This proposition is clearly mandated by CI-187: "Attorneys in professional association may not represent opposing clients." See also, CI-503.