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A city attorney should decline employment in civil cases where:
(1) He would be opposing the city or any of its boards, committees
or officials; (2) It conceivably could be his duty as city attorney,
directly or indirectly, to prosecute; or (3) It would be his official
duty to investigate; but that, otherwise, no restriction should
be placed on a city attorney to accept proffered employment in civil
matters.
Except where his appointment is made or employment approved by the
Court in a pending criminal action, a city attorney is absolutely
prohibited from defending parties formally charged with offenses
in his city or elsewhere, except where, as city attorney, he prosecutes
only very minor offenses and then, only if: (1) The defendant does
not reside in the city for which he is the city attorney; (2) The
charges do not involve his city or its ordinances; (3) The charges
are based on investigations made by law enforcement officers, not
employed by his 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.
DISCUSSION
A city
attorney inquires to what extent he can accept civil litigation
and the defense of parties charged with crime. Numerous questions
were propounded, specifying varying situations. The best approach
probably is to proceed from the general to the specific, i.e., from
general principles and opinions previously rendered to these specific
questions.
Section 17-610 of the Revised Statutes of Nebraska prescribes the
duties of a city attorney. It is not imperative that he prosecute
city ordinances. Indeed, some cities appoint special attorneys to
handle such prosecutions, leaving the remaining duties, enumerated
in this section, to the regular city attorney. However, most Municipal
Codes now require the city attorney to prosecute ordinances; and
if the city attorney does so, he must also handle the appeals to
the District Court. Of course, in all cases, he "shall commence,
prosecute, and defend all suits and actions necessary to be commenced,
prosecuted or defended on behalf of the corporation, or that may
be ordered by the council or board of trustees".
CIVIL CASES
Canon 9 states that "A lawyer should avoid even the appearance
of professional impropriety". Informal Opinion 1182 of the
Ethics Committee of the American Bar Association states, "When
explicit ethical guidance does not exist, a lawyer should determine
his conduct by acting in a manner that promotes public confidence
in the integrity and efficiency of the legal system and the legal
profession," further stating that "EC 8-8 suggests that
a lawyer who is a public officer, whether full or part-time, should
not engage in activities in which his personal or professional interests
are, or foreseeably may be, in conflict with his official duties",
and further stating, "Certainly a lawyer cannot, consistently
with the guidance given under Canon 9, accept a retainer where its
acceptance will give the appearance of professional impropriety".
Wise, in his LEGAL ETHICS (Second Edition) at pages 263-264, states
that "A prosecutor may not accept private employment in connection
with any matter he investigated as prosecutor", further stating
that "An attorney who represented a city in connection with
a bond issue should not thereafter attack the validity of the issue",
and further stating that "A prosecuting attorney ' even though
permitted to practice privately, may not accept a retainer from
a person whom it is his duty to prosecute".
Accordingly, a city attorney should be able to accept any civil
cases, except:
(1) Any action or proceeding wherein he would
be opposing the city or any of its boards, committees or officials.
(2) Employment by any party where it conceivably
could be his duty, as city attorney, to prosecute.
(3) Employment in any transaction where it
was his official duty to investigate. See ABA Formal Opinions No.
39 and No. 135.
ABA Informal Opinion 1003 of the American Bar Association states
that "It is unethical and improper for a city attorney, who
is on a regular retainer fee from the city, to represent a client
who files an application for a liquor license with the city council,
the granting of which is opposed by the council. It is also unethical
for a member of the same firm to appear before the city council
in representation of private clients in applications for various
licenses and other matters that might result in litigation between
such persons and the city".
Also,
it has been well established that if the city attorney is barred
from participating, this prohibition, likewise, extends to his law
partners and associates. See ABA Informal Opinion 1182 and ABA Formal
Opinion No. 33.
CRIMINAL
CASES
The extent to which a city attorney may go in the defense of criminal
cases, both in his own city and elsewhere, has been extensively
discussed by the Advisory Committee. ABA Formal Opinion No. 34,
released in 1931, held that a city attorney whose duties were exclusively
civil in nature could conduct the defense of a criminal case. However,
ABA Formal Opinion No. 186 seemed to have overruled this permission,
indicating that, to accept employment adverse to this public employer,
puts the official in an unseemly situation likely to destroy public
confidence in him as a public officer and bring reproach on the
profession, and stating, "Insofar as Opinion No. 34 is in conflict
with the views herein expressed, it is overruled". Further
discussion may be found in 41 Nebr. Law Rev. 243; 42 Nebr. Law Rev.
306; 39 Nebr. Law Rev. 254. However, the Advisory Committee in an
opinion, dated May 24, 1966, stated that the employment of a lawyer
by a city or village to handle civil matters ONLY, will disqualify
that lawyer from defending persons under the statutes of the state
or ordinances village other than the city or village employing the
lawyer in question. It was suggested that the contract of employment
specifically provide that the lawyer is not appointed as city attorney
or village attorney, but is merely employed to handle such civil
matters as may be determined and agreed upon by the parties.
ABA Formal Opinion No. 34, issued on March 3, 1931, also established
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, ABA Informal Opinion No. 1045,
released on May 15, 1968, and commented 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 violations of city housing, building, zoning
and similar ordinances, may defend persons charged with crimes,
PROVIDED: (1) The defendants do not reside in the city for which
he is the 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 his 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. The comment continues:
"If these conditions are present, there would be no conflict
of interests, since the city attorney would not be in a position
where it would be his duty to contend on behalf of one client, what
his obligation to the other client, would require him to oppose".
Of course, this language contradicts the holding in ABA Formal Opinion
186. However, since the Informal Opinion is of comparative recent
vintage, it is believed that it represents the latest findings and
holdings of the ABA Ethics Committee It is further believed that
this is as far as a city attorney may go.
Because
of the dearth of available defense counsel in the outlying regions
of Nebraska, the Advisory Committee found itself in a dilemma, resulting
in the issuance of its Formal Opinions No. 74-2, providing
for an order of the court, wherein the case is pending, when anyone
has been charged with a crime.
Thus,
it is apparent that the Advisory Committee has dealt only with the
situations where the party had been CHARGED and the case was PENDING,
nothing having been stated with reference to the period of time
between the client first seeking advice until he is formally charged
in Court.
When
the client approaches the city attorney, the latter does not know
until he is interviewed, whether or not a criminal action or charge
is in the offing and, therefore, he should not be prohibited from
discussing the matter with the possible client until he hears enough
to convince himself that he is disqualified for one reason or other,
to represent him at which time, he should do one or the other of
two things: (1) Decline employment; or (2) Contact the judge for
his approval. Normally, this presents no problem, since it usually
is apparent which judge is involved. In the outlying areas of Nebraska,
in particular, it now would be the County Judge, and if there be
more than one in the District, the approval of any one of them would
suffice, since the approval is made by the COURT.
It is
believed that all of the questions propounded have been answered,
either directly or indirectly, or, at least, to the extent that
it is possible to do so at this time. Armed with the foregoing exposition
of principles and opinions, already enunciated, and with the employment
and application of sound judgment and common sense as well as an
ethical lawyer's sense of what is right or wrong, it is believed
that no grave departure from the application of ethical principles
and conduct should occur or ensue in any given case.
74-5
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