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A CITY OR VILLAGE ATTORNEY WHOSE DUTIES INCLUDE PROSECUTING VIOLATIONS
OF ORDINANCES AND STATE STATUTES MAY NOT PROPERLY REPRESENT ANYONE
CHARGED WITH A CRIME.
CANONS
INTERPRETED:
Canon
6 of Canons of Professional Ethics. Adverse
Influences and Conflicting Interests.
Canon
9 of Code of Professional Responsibility. A Lawyer Should Avoid
Even the Appearance of Professional Impropriety.
EC 9-6.
"Every lawyer owes a solemn duty to
uphold the integrity and honor of his profession; * * * and strive
to avoid not only professional impropriety but also the appearance
of impropriety."
A city
attorney of a Nebraska city devotes part of his time to the duties
of that office and received a monthly retainer. He inquires whether
it would be appropriate for him to represent accused persons in
criminal matters not investigated or handled by the police department
of said city.
Canon
6 of the Canons of Professional Ethics of the American Bar Association
was in effect long prior to the adoption of the Code of Professional
Responsibility by said association. Canon 6 concerns adverse influence
and conflicting interests, and provided, in part: "It is unprofessional
to represent conflicting interests, * * *".
Inquiries
similar to that here involved have been treated in opinions previously
issued by the Advisory Committee of the Nebraska State Bar Association.
The Standing Committee on Professional Ethics of the American Bar
Association has also issued both formal and informal opinions with
reference to the questions here presented. Formal Opinion No. 34
of said Standing Committee was issued in 1931. It interpreted Canon
6 of the Canons of Professional Ethics, and held that a city attorney
whose duties are exclusively civil in nature may conduct the defense
of a criminal case. Other opinions of said Standing Committee prohibit
any city or village attorney charged with a duty of prosecuting
criminal offenses from representing the accused in any criminal
case.
In 1938,
said Standing Committee issued Formal Opinion No. 186 wherein it
overruled Formal Opinion No. 34, and held that a county attorney
may not in any case represent a defendant in a criminal matter.
In that opinion, this language appears:
"The
county attorney should not accept employment where his duties to
his private client and his public duties may conflict either directly
or indirectly. Furthermore, for the county attorney charged with
public duties to accept employment adverse to this public employer
puts the county attorney in an unseemly situation likely to destroy
public confidence in him as a public officer, and bring reproach
to his profession.
"The
county attorney, in our opinion, should refrain from accepting such
employment, as the interest of the county of which he is an officer,
are conflicting.
"In
so far as Opinion 34 is in conflict with the viewed expressed, it
is overruled."
On October
20, 1971, the Advisory Committee of the Nebraska State Bar Association
issued an opinion in response to an inquiry by a city attorney of
a Nebraska city which posed a question similar to the one with which
we are here concerned. That opinion states:
"Formal
Opinion 34, issued March 3, 1931, states that a city attorney may
defend a person charged with a crime, only if (1) His duties and
his assistant's duties do not include the prosecution in any court
of offenders against municipal ordinances or criminal statutes,
and (2) If he is not required to defend the accused in any court
in which a city official performs the duties of judge or magistrate.
However, Informal Opinion 1045, released on May 15, 1968, and commended
upon in the April, 1969 issue of the American Bar Journal at Page
350, states that the prohibition extends to all criminal cases,
whether the particular case is within the scope of his prosecution
duties or not. But a city attorney, who acts as prosecutor only
for minor offenses, such as parking tickets and violation of city
housing, building, zoning and similar ordinances, may defend persons
charged with crime, provided: (1) The defendants do not reside in
the city for which he is city attorney; (2) The charges do not involve
his city or its ordinances; (3) The charges are based on investigation
by law enforcement officers not employed by the city; and (4) The
cases in which he acts as defense counsel do not involve the same
types of violations as those he prosecutes for the city."
It is
apparent that the inquiring city attorney here is charged with the
duty of prosecuting criminal violations of city ordinances and state
statutes, and for that reason he does not fall within the exceptions
set forth in Informal Opinion No. 1045 of the Standing Committee.
In State
ex rel. Nebraska State Bar Association v. Richards, 165 Neb. 80,
84 N.W.2d 136, disciplinary proceedings were instituted against
a county attorney of Nebraska county for alleged unprofessional
conduct. The record disclosed that the respondent was a county attorney
of a Nebraska county; that in two instances he was the attorney
employed privately to represent the executor or administrator of
estates in which determination of inheritance taxes was required;
that he undertook to represent both the estates and the county of
which he was an officer in the determination of such taxes; and
that he did not procure the appointment of a special attorney to
represent the county in these matters. In defense of his conduct,
the respondent adduced evidence showing that in the determination
of inheritance taxes for each estate, he had fully disclosed to
the county commissioners of his county the facts with respect to
valuations of the properties and his representation of the fiduciary
in the estates; and that the county commissioners had consented
to his representing both the county and the estates. In commenting
on this issue, our court said:
"It
is also brought out by the evidence adduced that no one ever questioned
the inheritance tax assessed; that no damage resulted therefrom;
that the federal authorities used the same valued for assessing
federal estate tax; and that no fraud, deceit or unscrupulous practice
was involved. But for conduct to be unethical it is not necessary
that some damage result therefrom because of fraud, deceit, or unscrupulous
practice. As said in Opinion 49, of the Committee on Professional
Ethics and Grievances of the American Bar Association, page 134:
'An attorney should not only avoid impropriety but should avoid
the appearance of impropriety'."
In the
light of the foregoing, we conclude that where a city attorney is
charged with the duty of prosecuting persons accused of violating
city ordinances or state statutes, he may not ethically represent
persons accused of criminal offenses in any courts. To permit a
city attorney to do so would create an unmistakable appearance of
impropriety.
72-13
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