Can the same person serve as mayor of an Arkansas town and also represent criminal defendants (including as a public defender) in nearby courts?
Plain-English summary
Prosecuting Attorney Dan Turner asked the AG whether a sitting mayor could also work as a private defense lawyer (and specifically as a part-time public defender) in courts within the same judicial district. The opinion focused on a mayor of a city of the second class with a mayor-council form of government. The answer to both questions is yes, with case-specific conflict-of-interest caveats.
Why dual-office prohibitions do not bar this. Arkansas has three sources of dual-office prohibitions: the Arkansas Constitution, specific statutes, and the common-law doctrine of incompatibility. The AG worked through each:
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Mayor + private criminal defense attorney. The office of mayor is a "public office," but a private attorney is not. So no dual-office rule applies. The mayor can represent private clients in criminal cases just as a mayor in any other profession can practice that profession.
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Mayor + public defender. Whether a part-time public defender role qualifies as a "public office" depends on the type of public defender position (the AG noted he lacked specific facts on this point). But even assuming it qualifies as a public office, no constitutional or statutory rule prohibits simultaneous service. Arkansas Constitution art. 19, § 6 prohibits holding two offices "in the same government department," but the AG has consistently opined this does not apply to municipal officers (citing State ex rel. Murphy v. Townsend (1904) and prior AG opinions). The separation-of-powers doctrine in Ark. Const. art. 4, §§ 1, 2 does not generally apply to municipal officers either. And while a mayor cannot "be appointed to any municipal office during the time for which he or she may have been elected" (A.C.A. § 14-42-107(a)(2)), a public defender is not a municipal office.
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Common-law incompatibility. Two public offices are unlawfully incompatible when one is "subordinate to the other and subject in some degree to the supervisory power of its incumbent" (Tappan v. Helena Fed. Sav. & Loan, 1937). The mayor and public defender are not so related: the Arkansas Public Defender Commission (not the mayor) hires, fires, supervises, sets salaries for, and evaluates public defenders. The two roles are not subordinate to each other. The AG has previously held that a city council member can simultaneously serve as a public defender on the same logic (Op. 1989-266).
Conflict-of-interest layer. Even though the dual-office rules permit this combination, individual cases may trigger conflict-of-interest rules requiring recusal or withdrawal. Sources of conflict include:
- General common-law conflict-of-interest doctrine (a public official cannot use the office to further personal interests in conflict with public trust).
- A.C.A. § 21-8-304(a) (no public servant may use official position to secure special privileges).
- A.C.A. § 21-8-304(b) (no employment that would require disclosure of confidential information).
- A.C.A. §§ 16-87-307, 16-87-214 (specific public-defender conflict rules).
- Arkansas Rules of Professional Conduct 1.7–1.8 (lawyer client-conflicts rules).
- Appearance-of-bias doctrine (Acme Brick, Berry v. Saline Memorial Hospital).
The AG specifically noted the mayor here had reportedly avoided cases in the city's district court or where the city was a party. That self-policing is the right approach but does not eliminate every possible case-specific conflict.
What this means for you
Mayors who are also lawyers
The combination is legally permitted in Arkansas as long as you are mayor of a mayor-council city (this opinion specifically addresses a city of the second class). You can keep practicing law, including criminal defense, while serving as mayor. The trickier question is conflict of interest in individual cases.
Practical guardrails the mayor in this opinion was reportedly using:
- Do not appear in your own city's district court.
- Do not appear in any case where the city is a party.
- Decline appointment to cases prosecuted by your city's prosecutor or police.
- Recuse from cases that involve confidential city information you might have learned in your mayoral role.
Document your conflict-screening process. If a citizen complains, you want a clear record of how you decided which cases to take.
Public defenders who consider running for mayor
The combination is permitted, but you should expect to recuse from any cases that involve your city or its officials as parties or witnesses. Talk to the Arkansas Public Defender Commission (which sets standards) and to your trial public defender office about your case-screening process before taking office. If your jurisdiction has a heavy overlap (city defendants represent a large share of the public-defender caseload), the conflicts may make the combination practically unworkable even though it is legally permitted.
Prosecuting attorneys
When a sitting mayor represents a defendant in your jurisdiction, you have grounds to scrutinize for case-specific conflicts but not grounds to disqualify on dual-office grounds alone. Look for: police as witnesses (city officers under the mayor's executive authority), city as alleged victim (e.g., theft from city property, official-misconduct cases involving city officials), or confidential information use. If you see a case-specific conflict, raise it formally; the court can decide.
City attorneys and bar ethics advisors
Use this opinion as the starting framework for advising mayor-attorneys. The dual-office answer is settled. Spend your time on the case-specific conflict analysis, which depends on facts you will need to develop with the client.
Common questions
Can a mayor of a larger city (city of the first class) also practice as a defense attorney?
This opinion specifically addresses a city of the second class with a mayor-council form. The same logic likely extends to other mayor-council cities, but the analysis turns on the mayor's specific authorities (does the mayor's role include any function that overlaps with the public defender's? does the mayor supervise police directly?). If you are in a city-administrator or city-manager city, the answer may differ; consult counsel before relying on this opinion alone.
My city's mayor took my brother's case as a defense attorney. Is that legal?
Probably yes for the dual-office question. Whether there is a case-specific conflict depends on whether the case touches the city or city officials. Ask the lawyer (or the lawyer's bar association) to disclose any conflict screen they ran.
Can a mayor be a deputy prosecutor in a different judicial district?
Different question. A deputy prosecutor is a public office (per Martindale v. Honey). If the mayor's city is in a different judicial district, the offices are not in the same supervisory chain, and this opinion's logic suggests the combination would also be permitted. But case-specific conflicts could still bar individual matters.
The public defender's office is funded by the state, but my city pays a portion. Does that change the analysis?
The salary source and funding flow matter for the common-law incompatibility test. The AG read A.C.A. § 16-87-302(a) as putting the Arkansas Public Defender Commission in charge of public-defender salaries. If your city makes some discretionary contribution that affects compensation, the analysis could change; consult bar ethics counsel.
What conflict-of-interest rules apply to the mayor's law practice generally?
A.C.A. § 21-8-304(a) bars using public office to secure special privileges. § 21-8-304(b) bars employment that would require disclosure of confidential information. The Arkansas Rules of Professional Conduct (especially Rules 1.7 and 1.8) impose client-conflict rules. The appearance-of-bias doctrine (Acme Brick) applies to lawyers, not just judges.
Background and statutory framework
Arkansas's dual-office-holding rules come from three sources, all of which the AG addressed.
Constitutional rules. Ark. Const. art. 19, § 6 prohibits holding two offices "in the same government department." Past AG opinions and State ex rel. Murphy v. Townsend, 72 Ark. 180, 79 S.W. 782 (1904), hold this does not apply to municipal officers. Ark. Const. art. 4, §§ 1, 2 (separation of powers) does not generally apply to municipal officers either.
Statutory rules. A.C.A. § 14-42-107(a)(2) prohibits mayors from being appointed to municipal offices during their elected term. A.C.A. § 14-43-501(b)(1)(A) makes the mayor an ex-officio council member. None of these reach a public defender role.
Common-law incompatibility. Byrd v. State ex rel. Atty. Gen., 240 Ark. 743, 402 S.W.2d 121 (1966), recognizes the doctrine; Tappan v. Helena Fed. Sav. & Loan Ass'n of Helena, 193 Ark. 1023, 104 S.W.2d 458 (1937), articulates the test (subordination plus supervision plus removal/audit power). Martindale v. Honey, 259 Ark. 416, 533 S.W.2d 198 (1976), held a deputy prosecutor is a public "office," in contrast to mere employment. All three are Arkansas Supreme Court decisions (Ark. + S.W./S.W.2d).
The Arkansas Public Defender Commission's authority over public defender hiring, salaries, supervision, and reassignment for conflicts is in A.C.A. §§ 16-87-203(a), 16-87-204, 16-87-302(a), 16-87-307, and 16-87-303.
For appearance-of-bias and lawyer conflict doctrine: Acme Brick Co. v. Missouri Pac. R. Co., 307 Ark. 363, 821 S.W.2d 7 (1991); Berry v. Saline Memorial Hospital, 322 Ark. 182, 907 S.W.2d 736 (1995); Ark. R. Prof'l Conduct 1.7–1.8.
Citations
- Ark. Const. art. 4, §§ 1, 2 (separation of powers, generally not applicable to municipal officers)
- Ark. Const. art. 19, § 6 (dual office in same department, not applicable to municipal officers)
- A.C.A. § 14-42-107(a)(2) (mayor cannot be appointed to municipal office during term)
- A.C.A. § 14-43-501(b)(1)(A) (mayor as ex-officio council member)
- A.C.A. § 16-87-203(a) (public defender funding and standards)
- A.C.A. § 16-87-204 (public defender position allocation)
- A.C.A. § 16-87-214 (trial public defender conflict rules)
- A.C.A. § 16-87-302(a) (public defender salary)
- A.C.A. § 16-87-303 (public defender appointment)
- A.C.A. § 16-87-307 (public defender conflict reassignment)
- A.C.A. § 21-8-301(6) (public servant definition)
- A.C.A. § 21-8-304(a) (no special privileges)
- A.C.A. § 21-8-304(b) (no conflicting employment)
- Ark. R. Prof'l Conduct 1.7–1.8 (lawyer client conflicts)
- Byrd v. State ex rel. Atty. Gen., 240 Ark. 743, 744–45, 402 S.W.2d 121, 123 (1966)
- Tappan v. Helena Fed. Sav. & Loan Ass'n of Helena, 193 Ark. 1023, 104 S.W.2d 458, 459 (1937)
- Martindale v. Honey, 259 Ark. 416, 419, 533 S.W.2d 198, 199 (1976)
- State ex rel. Murphy v. Townsend, 72 Ark. 180, 79 S.W. 782, 783 (1904)
- Acme Brick Co. v. Missouri Pac. R. Co., 307 Ark. 363, 368, 821 S.W.2d 7, 10 (1991)
- Berry v. Saline Memorial Hospital, 322 Ark. 182, 189, 907 S.W.2d 736, 740–741 (1995)
- Ark. Att'y Gen. Ops. 1995-178, 1994-227, 1993-302, 1987-451, 2018-131, 2003-164, 2002-133, 1997-002, 1994-031, 1993-184, 1993-010, 1991-415, 1991-043, 1989-266, 2006-219, 2006-066, 2002-065, 1998-108, 2001-127, 2016-106, 1997-143, 2023-033, 2012-018, 2004-106, 2001-042, 1999-344, 1998-275, 1994-283, 2002-347
Source
Original opinion text
Opinion No. 2023-082
October 16, 2023
Mr. Dan Turner, Prosecuting Attorney
Ninth-East Judicial District
414 Court Street
Arkadelphia, Arkansas 71923
Dear Mr. Turner:
I am writing in response to your request for my opinion on questions concerning whether
a mayor may simultaneously represent private clients in criminal matters, including as a
public defender, within a judicial district that encompasses the city in which the mayor
serves. You say that a particular mayor, who provides part-time public-defender services,
reports "that he is not assigned nor does he participate in cases [in the]…district court…or
in which [the city] is a party." You have asked two questions:
1. Can an individual serving as mayor represent private clients in criminal cases in
courts within the same judicial district?
2. Can an individual serving as mayor serve as a public defender in courts within the
same judicial district?
RESPONSE
The answer to both your questions is "yes," but specific cases might arise in which
representing those clients creates a conflict of interest warranting recusal or withdrawal
from a particular case.
DISCUSSION
1. Dual-office prohibition. A person may be prohibited from simultaneously holding two
public "offices" by the constitution, specific statute, or the common-law doctrine of
incompatibility. Although the office of mayor is a "public office," a private attorney is
not a "public office." Therefore, the aforementioned dual-office prohibitions do not apply
to the scenario contained in your first question.
Based on the information you have provided with your opinion request, however, it is
unclear whether a public defender here is a "public office." Even if a public defender were
a public office, the dual-office prohibitions would not prevent someone from
simultaneously serving in both roles for two reasons.
First, neither constitutional law nor statutory law prohibit someone from serving
simultaneously as a mayor of a mayor-council city and as a public defender. Second, the
two positions are not incompatible under the common law. Under that doctrine, two public
offices are unlawfully incompatible when "one [office] is subordinate to the other and
subject in some degree to the supervisory power of its incumbent, or where the incumbent
of one office has the power to remove the incumbent of the other or to audit the accounts
of the other." The mere "fact that incompatibility may from time to time exist is
insufficient to warrant disqualification where the duties of each office are inherently
dissimilar."
In my opinion, and based on the information you have submitted, the mayor and public
defender roles are not unlawfully incompatible because neither position is subordinate to
the other. The mayor lacks the authority to hire, fire, control, or determine the salaries of
any public defenders. Similarly, this office has previously opined that a person
simultaneously serving on the city council and as a public defender "does not create an
unlawful conflict of interest, so long as the public defender is not hired, nor is his salary
determined by the city."
2. Conflicts of interest. While the mayor's concurrent service as either a private attorney
or a public defender may not be prohibited by the above dual-office-holding prohibitions,
his concurrent service, on a case-by-case basis, may give rise to a conflict of interest
warranting recusal or withdrawal from a particular matter.
This office has consistently opined that a common law conflict of interest could arise when
someone in a position of public trust, like a mayor or a public defender, uses the position
directly or indirectly to further his or her own interest in conflict with his or her public
trust. Conflicts of interest warranting recusal may also arise under the laws governing the
conduct of city officials, public defenders, and lawyers. Additionally, a lawyer may
need to recuse or withdraw from a case to avoid even the appearance of bias or
impropriety. I lack the facts to determine whether a conflict of interest warrants recusal
or withdrawal in a particular case.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General