August 16, 1991
A county attorney may perform legal services for the county sheriff's office, even when those duties conflict with the interests of the client county, if a disinterested lawyer would reasonably believe the representation will not be adversely affected and the clients consent after consultation.
A lawyer who provides legal assistance to the sheriff's department in a matter may not as county prosecutor subsequently determine whether to file criminal charges in the matter, regardless of whether the sheriff followed the advice of the lawyer in the matter.
Another assistant county prosecutor who does not advise the sheriff's department, however, may determine whether to file criminal charges in the matter.
If a county prosecutor is called as a necessary witness on a contested fact in a matter, another member of the county prosecutor's office may nevertheless serve as advocate at the trial of the matter.
References: MRPC 1.7(b), 1.13(a), 3.7, 3.8(b) and (e); RI-47; OAG, 1980, No 5657, p 635 (February 21, 1988).
An assistant prosecuting attorney for a county asks:
- Whether an assistant prosecuting attorney may without compensation provide legal advice and counselling to the county sheriff's department regarding the handling of particular cases and the preparation of cases for prosecution by the assistant's own office; and
- If so, is it unethical for the assistant prosecutor to perform sheriff duties on an ad hoc basis if properly "deputized" for a particular matter.
It is not clear what duties are assigned to advisory deputy sheriffs. OAG, 1980, No 5657, p 635 (February 21, 1988), which addresses whether a lawyer in private practice may defend a party accused of criminal conduct within the township in which the lawyer practices and serves as police officer, states:
"An attorney must avoid the potential of conflicting allegiance which may arise in representing clients with incompatible claims. As a township police officer must enforce state and local laws, the obligation of faithful law enforcement precludes the police officer from accepting as an attorney criminal cases which arise within the township under the state or local law."
MRPC 3.8 states:
"The prosecutor in a criminal case shall: . . . .
"(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
". . .
"(e) exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extra judicial statement that the prosecutor would be prohibited from making under Rule 3.6."
This rule indicates that it is permissible for an assistant prosecutor to provide legal advice to the county sheriff's department, and it may be that the prosecutor is under a duty to do so where such advice could be provided with reasonable effort. Since it appears to the Subcommittee that the goals of an assistant prosecuting attorney and that of a deputy sheriff of enforcing the laws and carrying out justice are one and the same, there appears to be no conflict of interest. It is hard to imagine what an advisory deputy sheriff may be able to do that a prosecuting attorney cannot, thus there does not appear to be a possibility of incompatible claims.
RI-47 held that an assistant city attorney who serves as the city's legal advisor for labor/relations and personnel could not serve as the management representative on a supervisory grievance board. But an assistant city attorney who did not have legal responsibility for advising the employee relations function may serve on the grievance board, even where a colleague assistant city attorney is the advocate for management in matters presented to the grievance board for adjudication.
As the city attorney's client in RI-47 was the city as an entity, in this inquiry the county attorney's client is the county as an entity, MRPC 1.13(a), and not any particular department or person. MRPC 1.7(b) prohibits a lawyer from representing a client "if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests." Therefore the county attorney may perform legal services for the sheriff, even when those duties conflict with the interests of the client entity, if the lawyer reasonably believes the representation will not be adversely affected and the clients consent after consultation.
However, a lawyer assigned to provide assistance to the sheriff's department may not subsequently review the conduct of the sheriff's department in a matter or determine whether to file criminal charges in a matter, since the lawyer could not reasonably believe the representation of the county client would not be adversely affected by the lawyer's own interests in upholding whatever advice the lawyer had given to the sheriff, regardless of whether the sheriff followed the advice of the lawyer in the matter. MRPC 1.7(b). Another assistant county prosecutor who does not advise the sheriff's department, however, may determine whether to file criminal charges in the matter and review the actions of the sheriff's office in the matter. See RI-47.
As to the second question regarding the performance of sheriff's duties by an assistant prosecutor, it must be pointed out that whether a person has authority to arrest is not an ethics question. Ethically, should the duties of the deputy go beyond mere advisory capacity to active involvement in a field investigation, the prosecutor should be cautioned that the prosecutor may be called as a witness at trial. MRPC 3.7 states:
"(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
"(1) the testimony relates to an uncontested issue;
"(2) the testimony relates to the nature and value of legal services rendered in the case; or
"(3) disqualification of the lawyer would work substantial hardship on the client.
"(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9."
Accordingly, if a county prosecutor is called as a necessary witness on a contested fact in a matter, another member of the county prosecutor's office may nevertheless serve as advocate at the trial of the matter.