IT IS IMPROPER FOR A FORMER ASSISTANT CITY PROSECUTOR OF A MUNICIPALITY
TO REPRESENT A CLIENT WHO WAS ARRESTED FOR INTOXICATION AND RESISTING
ARREST DURING THE TIME THE ATTORNEY WAS SERVING AS SUCH PUBLIC OFFICIAL,
EITHER IN THE RESULTING CRIMINAL PROCEEDINGS IN THE MUNICIPAL COURT
OR IN CIVIL RIGHTS LITIGATION IN FEDERAL COURT INVOLVING THE INCIDENT.
FACTS
From December 1974 until March 1975, the inquiring attorney was
assistant City Prosecutor of a municipality. In February 1975 a
prospective client of said lawyer was arrested and charged with
intoxication and resisting arrest in the Municipal Court. He has
asked the inquiring attorney to represent him both in the criminal
proceedings in Municipal Court, and in possible civil rights litigation
in Federal Court.
QUESTIONS PRESENTED
1. May
the lawyer represent the accused in criminal proceedings in the
Municipal Court?
2. May
the lawyer represent the accused in civil rights litigation in Federal
Court?
CODE
PROVISIONS INVOLVED
Canon 9 A Lawyer Should Avoid Even the Appearance
of Professional Impropriety.
EC 9-3. "After a lawyer leaves judicial
office or other public employment, he should not accept employment
in connection with any matter in which he had substantial responsibility
prior to his leaving, since to accept employment would give the
appearance of impropriety even if none exists."
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
The inquiry does not state that the assistant City Prosecutor had
"substantial responsibility" for handling in Municipal
Court the prosecution of the prospective client for intoxication
and resisting arrest. It is clear, however, that the lawyer was
employed by the municipality and was actively serving on the staff
of the City Prosecutor in February 1975 when the alleged offenses
were committed. He did not terminate his employment as a prosecutor
until March 1975.
In these circumstances, we may assume that facts about the arrest
including police reports, tests and other pertinent information
were available to the assistant prosecutor. It is not important
whether or not he actually examined this information. Prior to the
adoption of the Code of Professional Responsibility, lawyers were
governed by the Canons of Professional Ethics of the American Bar
Association. The old Canon 6 concerned conflicting interests and
provided in part:
"It is unprofessional to represent conflicting interests except
by express consent of all concerned given after a full disclosure
of the facts. Within the meaning of this Canon, a lawyer represents
conflicting interests when, in behalf of one client, it is his duty
to contend for that which duty to another client requires him to
oppose."
Canon 9 of the new Code of Professional Responsibility admonishes
that a lawyer should avoid even the appearance of professional impropriety.
It seems to us that from December 1974 until March 1975 the assistant
prosecutor was required to represent the municipality which employed
him and to decline professional employment by any person charged
with a criminal offense in the Municipal Court of said city during
that period. Even if the assistant prosecutor lacked personal knowledge
of the complaint filed here, he owed a duty to his employer which
will not permit him to represent an adverse party. Were the inquiring
lawyer to accept employment either to represent the accused in the
Municipal Court prosecution or in Federal Court civil rights litigation,
there would be an appearance of impropriety. We therefore believe
that the prospective employment of the inquiring attorney by the
accused person should be declined.
75-7
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