A LAWYER, WHO IS SERVING HIS COUNTY AS A MEMBER OF THE COUNTY BOARD,
WHICH HAS, AS ONE OF ITS DUTIES TO ACT EACH YEAR UPON THE BUDGET
PRESENTED BY THE COUNTY ATTORNEY, SHOULD NOT HANDLE CRIMINAL CASES,
NEGOTIATING AND DEFENDING THEM AGAINST THE COUNTY ATTORNEY OR ANY
MEMBER OF HIS STAFF.
FACTS
An attorney was elected to serve as a County Commissioner of one
of the counties in Nebraska for a four year term beginning in January
of 1975. Prior to his election, the attorney handled numerous criminal
cases, negotiating and defending them against the County Attorney
and members of his staff. The County Commissioners have only budgetary
authority over the County Attorney's office. The County Commissioners
must act each year upon the budget presented by the County Attorney.
Being a County Commissioner is only a part time job.
QUESTION PRESENTED
The attorney requests an advisory opinion as to whether or not he
may continue to practice criminal law, defending clients in actions
prosecuted by the County Attorney or some of his deputies. He is
concerned as to whether or not this constitutes a conflict of interest
or the appearance of one.
CODE PROVISIONS INVOLVED
Canon 5. A Lawyer Should Exercise Independent
Professional Judgment on Behalf of a Client
EC 5-1 "The professional judgment of
a lawyer should be exercised, within the bounds of the law, solely
for the benefit of his client and free of compromising influences
and loyalties. Neither his personal interests, the interests of
other clients, nor the desires of third persons should be permitted
to dilute his loyalty to his client."
DR 5-101 Refusing Employment When the Interests
of the Lawyer May Impair His Independent Professional Judgment.
(A) "Except with the consent of his
client after full disclosure, a lawyer shall not accept employment
if the exercise of his professional judgment on behalf of his client
will be or reasonably may be affected by his own financial, business,
property, or personal interests."
Canon 7. A Lawyer Should Represent a Client
Zealously Within the Bounds of the Law
DR 7-101
Representing a Client Zealously.
(A) "A
lawyer shall not intentionally:
(1) "Fail to seek the lawful objectives
of his client through reasonably available means permitted by law
and the Disciplinary Rules, except as provided by DR 7-101 (B).
A lawyer does not violate this Disciplinary Rule, however, by acceding
to reasonable requests of opposing counsel which do not prejudice
the rights of his client, by being punctual in fulfilling all professional
commitments, by avoiding offensive tactics, or by treating with
courtesy and consideration all persons involved in the legal process."
(2) "Fail to carry out a contract of
employment entered into with a client for professional services,
but he may withdraw as permitted under DR 2-110, DR 5-102, and DR
5-105."
(3) "Prejudice
or damage his client during the course of the professional relationship,
except as required under DR 7- 102 (B)."
Canon
9. A Lawyer Should Avoid Even the Appearance
of Professional Impropriety
DR 9-101
Avoiding Even the Appearance of Impropriety.
(B) "A
lawyer shall not accept private employment in a matter in which
he had substantial responsibility while he was a public employee."
DISCUSSION
County Commissioners are the legislative and executive officers
of the county. They do and manage the counties business, Chapter
23, Revised Statutes of Nebraska for 1943, Reissue of 1970 as amended.
It is his duty to save money for the county where possible.
The trial of a criminal case is expensive to the county and the
taxpayers. Lots of money would be saved if attorneys for persons
accused of crimes would plead them guilty or bargain for dismissal
of more serious crimes by offering to plead to a lesser crime. The
conflict here seems obvious. The lawyer commissioner must adhere
to Canon 7 and he should, at the same time, be trying to save money
for the county. His situation may very well impair his independent
professional judgment either consciously or unconsciously in violation
of Canon 5. Full disclosure to both the client, the other commissioners
and the county attorneys still leaves the question of whether the
public ( in this instance, the county) can give consent. See Informal
Decision No. 674 (of the American Bar Association Standing Committee
on Professional Ethics) on this point. Informal Opinion No. 855
of the same committee in considering a problem on conflicts of interests
of public officials, states:
"Generally speaking, any persons in public offices, including
attorneys, have as their primary duty that of performing the functions
of the office in a wholly honest, impartial and ethical manner."
The inquirer is commended for recognizing the potential ethical
problem in being placed in a position of having budgetary authority
over the County Attorney's office and then opposing the County Attorney
in court. This may or may not place the County Attorney in an awkward
position in opposing the very attorney in a sensitive matter, who
sits in judgment over the County Attorney's budget. We believe this
violates Canon 9, as well as being a potential conflict of interest.
We therefore conclude that a lawyer who is one of the county board,
should not practice criminal law in that county.
75-4, March 6, 1975
|
