Can a full-time assistant public defender also serve as part-time special counsel to a Louisiana parish council?

Plain-English summary

Avery M. Riley, Jr. of Belle Chasse asked the Louisiana AG whether a full-time assistant public defender for the 25th Judicial District could also serve as part-time special counsel to the Plaquemines Parish Council. The AG said yes.

Louisiana's Dual Officeholding and Dual Employment Law (La. R.S. 42:61 et seq.) governs whether one person can hold two public positions at once. The result depends on how each position is classified.

The AG worked through the classifications:
- The 25th Judicial District Public Defender's office is part of the statewide public defender system supervised by the Louisiana Public Defender Board (La. R.S. 15:146(A)(1)). A full-time assistant public defender holds full-time "employment" with that office under La. R.S. 42:62(3)-(4).
- The special counsel position on the Plaquemines Parish Council is established by section 5.02(C) of the parish home rule charter, which authorizes the council to employ special counsel for itself by majority vote. Riley's role was part-time. Under La. R.S. 42:62(2) and (5), a part-time position filled by an elected body that the constitution, statutes, or local charter establishes is a "part-time appointive office."
- The two entities are separate political subdivisions for purposes of the dual-officeholding law. The 25th Judicial District Public Defender (a statewide system component) is distinct from the Plaquemines Parish government under La. R.S. 42:62(9).

The most relevant prohibition the AG analyzed was La. R.S. 42:63(E):

No person holding a full-time appointive office or full-time employment in the government of this state or of a political subdivision thereof shall at the same time hold another full-time appointive office or full-time employment in the government of the state of Louisiana, in the government of a political subdivision thereof, or in a combination of these.

That bar targets a full-time + full-time combination. Because the special-counsel role is part-time, La. R.S. 42:63(E) does not apply. The other provisions of the Dual Officeholding and Dual Employment Law do not bar the combination either, on the facts provided.

The AG was careful to limit the opinion's scope:
- The opinion addresses only the Dual Officeholding and Dual Employment Law. It does not analyze the Louisiana Code of Governmental Ethics (La. R.S. 42:1111 et seq.); ethics questions go to the Louisiana State Board of Ethics.
- The opinion does not analyze the Louisiana Rules of Professional Conduct, which can independently restrict an attorney's ability to take on potentially conflicting representations.

What this means for you

If you are an assistant public defender considering an outside parish counsel role. This opinion confirms that the dual-officeholding law alone permits the combination when the parish role is part-time. Before accepting both positions, separately confirm: (1) your public defender's office written outside-employment policies allow it; (2) the Louisiana State Board of Ethics has no objection under the Code of Governmental Ethics; and (3) the Rules of Professional Conduct (especially Rules 1.7 and 1.11 on conflicts of interest in concurrent and government representation) do not bar it for your specific docket of cases. Local district court judges sometimes also have view on the appearance of outside counsel work.

If you sit on a parish council appointing special counsel. When your charter allows the council to employ special counsel directly, you can pick a candidate who already holds a full-time public defender position, as long as the counsel role is genuinely part-time. Document the part-time nature in the engagement (estimated hours, scope of work, hourly or retainer basis) so the dual-officeholding analysis stays clean over the engagement's life.

If you are a district public defender deciding whether to allow outside work. The dual-officeholding law is not the only constraint. The Louisiana Public Defender Board's standards and your local office's policies on outside employment may impose stricter rules. Ask the candidate to surface those policies before issuing a yes/no.

If you are advising a parish about replacing in-house counsel with special counsel. "Special counsel" under a home rule charter is typically a part-time appointive office, not employment. That distinction can be load-bearing for dual-office analysis. If a parish council later tries to upgrade special counsel to a full-time position, the dual-office analysis may flip for any holder who has a separate full-time public job.

Common questions

Q: Why does it matter that the special-counsel position is part-time?
A: The Dual Officeholding and Dual Employment Law in La. R.S. 42:63 contains several separate bars, most of which are triggered only by full-time positions. La. R.S. 42:63(E) flatly prohibits holding two full-time appointive offices or two full-time positions in any combination. That bar does not reach a full-time + part-time combination, which is what this opinion analyzes.

Q: Who decides if a position is full-time or part-time?
A: La. R.S. 42:62(4) defines full-time as the period a person normally works or is expected to work that is at least seven hours per day and at least thirty-five hours per week. La. R.S. 42:62(5) defines part-time as less than that. The factual basis in the engagement controls; titles alone do not.

Q: Is "special counsel" the same as an employee of the parish?
A: No. The AG classified the role here as a part-time "appointive office" under La. R.S. 42:62(2) because the position is established by the parish home rule charter and is filled by appointment by an elected body (the parish council). "Employment" is a separate category in La. R.S. 42:62(3) that covers ordinary salaried or per-diem jobs other than elective or appointive offices.

Q: Doesn't the Louisiana Code of Governmental Ethics restrict me from doing legal work for a parish if I'm a state employee?
A: Possibly. The Ethics Code (La. R.S. 42:1111 et seq.) has its own conflict-of-interest and outside-employment provisions, and it is administered by the Louisiana State Board of Ethics. The AG did not analyze the Ethics Code in this opinion. Get a Board of Ethics advisory opinion before taking on both roles, especially if the parish you would represent has matters in front of any agency or court where the public defender's office appears.

Q: What about the Rules of Professional Conduct?
A: The AG explicitly carved those out of the analysis. The Louisiana State Bar Association's Rules of Professional Conduct (especially the conflict-of-interest rules in Rules 1.7 and 1.11) apply independently to any lawyer accepting concurrent representations. Concurrent representation of a public defender client and the parish council may create unwaivable conflicts in specific matters, even if the dual-officeholding law allows you to hold both positions.

Q: Does this opinion apply to other judicial-district public defender's offices?
A: The reasoning generalizes: each judicial district's public defender's office is part of the statewide public defender system, and each parish is a separate political subdivision from that system. The combination of full-time assistant public defender + part-time special counsel for the parish council fits the same analytical pattern. But facts matter. If the special-counsel role is full-time, or if the parish has unique charter language, the analysis can change.

Background and statutory framework

Constitutional foundation. La. Const. art. X, § 22 directs the legislature to enact dual-employment and dual-officeholding laws. La. R.S. 42:61 et seq. is the statutory implementation.

Definitions controlling the analysis.
- Appointive office (La. R.S. 42:62(2)) — any office in any branch of government, or any position on an agency board or commission, that is specifically established or specifically authorized by the constitution, the laws of this state, or the charter or ordinances of any political subdivision, and which is filled by appointment or election by an elected or appointed public official or by a governmental body.
- Employment (La. R.S. 42:62(3)) — any job compensated on a salary or per-diem basis, other than an elective or appointive office, in which a person is an employee of state government or of a political subdivision.
- Full time (La. R.S. 42:62(4)) — at least seven hours per day and at least thirty-five hours per week.
- Part time (La. R.S. 42:62(5)) — less than full time.
- Political subdivision (La. R.S. 42:62(9)) — a parish, municipality, or other unit of local government, including school boards and special districts. The statute treats certain entities (including the listed elected parochial officials) as separate political subdivisions for purposes of this Part.

Public defender system. The Louisiana Public Defender Board provides for supervision, administration, and delivery of a statewide public defender system (La. R.S. 15:146(A)(1)). The Board may employ or contract with a district public defender for each judicial district (La. R.S. 15:161), and the district public defender delivers services by contract, appointment, or employment (La. R.S. 15:165).

Plaquemines Parish structure. The Plaquemines Parish Charter establishes a president-council form of government (sec. 1.01). The parish council "may by majority vote of its membership employ special counsel for itself" (sec. 5.02(C)).

Outside the opinion's scope. The opinion expressly does not address the Louisiana Code of Governmental Ethics (La. R.S. 42:1111 et seq.) or the Louisiana State Bar Association's Rules of Professional Conduct (State Bar Articles of Incorporation, Art. 14).

Jeff Landry was Attorney General of Louisiana in 2023. Madeline S. Carbonette was the Assistant Attorney General who signed the opinion.

Citations and references

Constitutional provisions:
- La. Const. art. X, § 22 (dual employment / dual office holding)

Statutes:
- La. R.S. 42:61 et seq. (Dual Officeholding and Dual Employment Law)
- La. R.S. 42:62(2) (appointive office)
- La. R.S. 42:62(3) (employment)
- La. R.S. 42:62(4) (full time)
- La. R.S. 42:62(5) (part time)
- La. R.S. 42:62(9) (political subdivision)
- La. R.S. 42:63(E) (bar on two full-time positions)
- La. R.S. 42:1111 et seq. (Louisiana Code of Governmental Ethics, noted outside scope)
- La. R.S. 15:146 et seq. (public defender system)
- La. R.S. 15:146(A)(1) (Louisiana Public Defender Board)
- La. R.S. 15:161 (employment / contract with district public defender)
- La. R.S. 15:165 (delivery of public defender services)

Local charter:
- Section 1.01, Charter for Plaquemines Parish (president-council form)
- Section 5.02(C), Charter for Plaquemines Parish (council may employ special counsel)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/23-0047

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of Louisiana
DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. BOX 94005
BATON ROUGE, 70804-9005

Jeff Landry
Attorney General

June 6, 2023

OPINION 23-0047

Mr. Avery M. Riley, Jr.
126 Forest Drive
Belle Chasse, LA 70037

78 Dual Officeholding
La. R.S. 42:61, et seq.
La. R.S. 15:146, et seq.

The provisions of the Dual Officeholding and Dual Employment Law do not prohibit an assistant public defender employed by the 25th Judicial District Public Defender from serving as special counsel to the Plaquemines Parish Council.

Dear Mr. Riley:

Our office received your request for an opinion regarding whether an assistant public defender employed by the 25th Judicial District Public Defender may serve as special counsel to the Plaquemines Parish Special Council.

Pursuant to La. Const. art. X, § 22, the legislature has enacted laws regulating dual employment and defining, regulating, and prohibiting dual office holding in state and local government. The provisions of the Dual Officeholding and Dual Employment Law, found at La. R.S. 42:61, et seq., govern questions concerning the ability to hold two or more public offices and/or positions simultaneously. Classifying the correct nature of the respective positions held is essential for the purposes of applying the Dual Officeholding and Dual Employment Law.

The Louisiana Public Defender Board provides for the supervision, administration, and delivery of a statewide public defender system. The Louisiana Public Defender Board may employ or contract with a district public defender to provide for the delivery and management of public defender services in each judicial district. A district public defender provides public defender services by contract, appointment, or employment.

According to the information provided to our office, you are employed by the 25th Judicial District Public Defender as a full time assistant public defender which is classified as "full time" "employment" for the purposes of the Dual Officeholding and Dual Employment Law.

["Full time" means the period of time which a person normally works or is expected to work in an appointive office or employment and which is at least seven hours per day of work and at least thirty-five hours per week of work. La. R.S. 42:62(4). "Employment" means any job compensated on a salary or per diem basis, other than an elective or appointive office, in which a person is an employee of the state government or of a political subdivision. La. R.S. 42:62(3).]

OPINION 23-0047
Mr. Avery M. Riley, Jr.
Page 2

Plaquemines Parish operates under a home rule charter that provides for a president-council form of government. The parish council may by majority vote of its membership employ special counsel for itself. The position of special counsel is specifically established by the Plaquemines' Parish Charter and filled by the parish council, who are elected officials. According to the information provided to this office, the position of special counsel is part time which is classified as a "part time" "appointive office" for the purposes of the Dual Officeholding and Dual Employment Law.

The 25th Judicial District Public Defender and Plaquemines Parish are considered separate political subdivisions of the state for the purposes of the Dual Officeholding and Dual Employment Law.

The most relevant provision of the Dual Officeholding and Dual Employment Law is La. R.S. 42:63(E) which provides in pertinent part:

No person holding a full-time appointive office or full-time employment in the government of this state or of a political subdivision thereof shall at the same time hold another full-time appointive office or full-time employment in the government of the state of Louisiana, in the government of a political subdivision thereof, or in a combination of these.

The prohibition of La. R.S. 42:63(E) is not applicable because the position of special counsel is part time.

Based on the applicable provisions of law and the information you provided, it is the opinion of this office that the provisions of the Dual Officeholding and Dual Employment Law do not prohibit an assistant public defender employed by the 25th Judicial District Public Defender from serving as special counsel to the Plaquemines Parish Council.

OPINION 23-0047
Mr. Avery M. Riley, Jr.
Page 3

Please note that our expressed opinion is limited to an examination of the state law relating to Dual Officeholding and Dual Employment. It does not address the potential applicability of the provisions of the Louisiana Code of Governmental Ethics, La. R.S. 42:1111, et seq. Advisory rulings addressing questions under the Ethics Code are within the jurisdiction of the Louisiana State Board of Ethics. The Board may be contacted at the following address: P.O. Box 4368, Baton Rouge, LA 70821, phone: 225-219-5600. Nor does this opinion address the application of the Rules of Professional Conduct of the Louisiana State Bar Association, State Bar Articles of Incorporation, Art. 14, Rules of Prof. Conduct.

We hope that this opinion adequately addresses the legal issues you have raised. If our office can be of any further assistance, please do not hesitate to contact us.

With best regards,

JEFF LANDRY
ATTORNEY GENERAL

BY:
Madeline S. Carbonette
Assistant Attorney General

JL: MSC