Could a city attorney defend a district-court criminal case or an assistant DA defend a case in another district?

Plain-English summary

An assistant district attorney asked about conflicts arising from a suit against probation and parole authorities, a city attorney defending a criminal case in district court, and an assistant district attorney defending a case in another judicial district. In 2001, the attorney general's office said a city attorney could represent a criminal defendant in district court. It said an assistant district attorney could not defend any criminal prosecution in Louisiana, even outside the assistant's district.

The office asked for more facts before addressing the proposed suit against the corrections department. It also directed the requester to the Louisiana State Bar Association for the ethical questions, which it said might be outside its proper subject matter. Those issues were left unresolved by this opinion.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

City attorneys at the time

The office read State v. Mitchell as excluding a city-court prosecutor from the prohibition applied to district attorneys in prosecutions outside city court. It concluded that a city attorney could defend a criminal case in district court.

Assistant district attorneys at the time

The opinion read Article V, Section 26(C) as barring an assistant district attorney from defending or helping defend any criminal charge or prosecution in the state. It requested more facts on the separate proposed civil suit and left its ethical aspects to the bar association.

Common questions

Q: Could a city attorney defend a criminal case in district court?
A: The office said yes under its reading of State v. Mitchell.

Q: Could an assistant DA defend a criminal case in another judicial district?
A: No. The opinion read the constitutional prohibition as statewide.

Q: Did the office decide whether the proposed lawsuit against the Office of Probation and Parole was a conflict?
A: No. It requested more details about the suit and its parties and suggested that ethics questions be directed to the state bar association.

Background and statutory framework

The opinion quoted Louisiana Constitution, Article V, Section 26(C), which prohibited district attorneys and assistants from defending criminal prosecutions or charges. It used State v. Mitchell, 356 So. 2d 974 (La. 1978), to distinguish city-court prosecutors from district attorneys when the city attorney appeared in a different court.

Citations and references

• Louisiana Constitution, Article V, Section 26(C) (district attorney criminal-defense prohibition)
• State v. Mitchell, 356 So. 2d 974 (La. 1978) (city attorney distinction)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/00-0446

Original opinion text

February 19, 2001
OPINION #00-446

Mr. Richard A. Schwartz
Assistant District Attorney
21st Judicial District
Post Office Box 639
Amite, Louisiana 70422

Dear Mr. Schwartz:

Please be advised that the office of the Attorney General is in receipt of your opinion request regarding the following questions:

(1) Is there a conflict or ethical violation for an assistant district attorney to file suit against the Department of Corrections, Office of Probation and Parole?
(2) Is there a conflict or ethical violation for a city attorney to represent a defendant in criminal district court?
(3) Is there a conflict or an ethical violation for an assistant district attorney to represent a defendant in another judicial district?

I will first address all three questions by suggesting that you get an opinion from the Louisiana State Bar Association concerning the ethical considerations that may not be the proper subject for our office to address. Thank you for your cooperation and understanding concerning this issue.

In regard to your first question, I request that you send more specific information as to the nature of the lawsuit and the parties involved. I am unable to provide an answer with the information that was given in your opinion request.

The applicable case law controlling the second question is State v. Mitchell, 356 So. 2d 974 (La. 1978), which states in pertinent part:

The law clearly prohibits a district attorney or his assistant from defending or assisting in the defense of any criminal prosecution . .
However, the prosecuting officer of a city court is not included within the definition of district attorney for purposes of prosecutions in courts other than a city court and therefore, is not included within the prohibition.

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Mr. Richard A. Schwartz
OPINION 00-446
Page 2

Hence, it is the opinion of this office that it is within the law for a city attorney to represent a defendant in a criminal district court in this state.

The applicable law controlling the third question is Louisiana Constitution, Article V, Section 26(C), which provides in pertinent part:

Prohibition: No district attorney or assistant district attorney shall appear, plead, or in any way defend or assist in defending any criminal prosecution or charge.

As quoted above in State v. Mitchell, the Louisiana Supreme Court stated that a district attorney or his assistants are clearly prohibited from defending any criminal prosecution. Therefore it is the opinion of this office that an assistant district attorney is prohibited from defending any criminal prosecution in this state.

I hope this opinion has been helpful. If I may be of further assistance, please do not hesitate to contact my office. With warmest regards, I remain

Very Truly Yours,

RICHARD P. IEYOUB
Attorney General

By: ______
TOBY J. AGUILLARD
Assistant Attorney General

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Mr. Richard A. Schwartz
OPINION 00-446
Page 2

Opinion #00-446

Louisiana Constitution, Article V, Section 26(C)
State v Mitchell, 356 So. 2d 974 (La. 1978)

22 DISTRICT & PROSECUTING ATTORNEYS

The Attorney General’s office respectfully suggest that an opinion be requested from the Louisiana State Bar Association concerning the ethical considerations that may not be proper subject for our office to address. It is the opinion of this office that it is within the law for a city attorney to represent a defendant in a criminal district court in this state. This office also opines that an assistant district attorney is prohibited from defending any criminal prosecution in this state.

Mr. Richard A. Schwartz
Assistant District Attorney
21st Judicial District
Post Office Box 639
Amite, Louisiana 70422

Date Received:
Date Released: February 19, 2001

TOBY J. AGUILLARD
ASSISTANT ATTORNEY GENERAL