Can a part-time municipal judge privately represent a city police officer indicted over an on-duty shooting, and also defend the city in the related civil suit?

Plain-English summary

A lawyer who served as municipal judge for a city was approached by a police officer seeking advice and possible representation on a criminal indictment that might be returned against him, arising from the shooting and killing of a suspect who was fleeing from officers. Because the lawyer had contact with the Police Department through his role as municipal judge, he asked whether a conflict of interest would arise if he represented the officer, and if he also represented the city should the slain man's personal representative bring a civil suit.

The Disciplinary Commission concluded it perceived no ethical impropriety in the lawyer representing the police officer if indicted, and representing the city if a civil suit were filed, so long as in his capacity as municipal judge he had not acted and would not act upon any facet of the merits concerning the possible indictment or the civil suit against the city.

The opinion identified DR 9-101(A) (a lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity) and DR 9-101(B) (a lawyer shall not accept private employment in a matter in which he had substantial responsibility as a public employee) as the only pertinent provisions. On the facts presented, the Commission did not believe either rule came into play and therefore saw no objection to the proposed representation.

Currency note

This opinion was issued in 1984, under the former Alabama Code of Professional Responsibility (DR 9-101(A) and (B)) and before the Alabama State Bar's January 1, 1991 adoption of the Rules of Professional Conduct and the 2002 Ethics 2000 revisions to the ABA Model Rules. The question of a former or part-time adjudicative officer taking related private employment is now governed by Rules 1.12 and 1.7. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a part-time municipal judge take private cases connected to the city?

A: Per the opinion, the judge may represent the police officer and the city in the related matters only if, in his judicial capacity, he has not acted and will not act on any facet of the merits of the possible indictment or civil suit.

Q: Which rule controls when a judge wants to take private employment in a related matter?

A: The opinion identified DR 9-101(A) (no private employment in a matter on whose merits the lawyer acted in a judicial capacity) and DR 9-101(B) (no private employment where the lawyer had substantial responsibility as a public employee) as the only pertinent provisions.

Q: Why did the Commission find no conflict here?

A: The opinion reasoned that, on the facts presented, the lawyer had taken no judicial action on the merits of the indictment or the civil suit, so neither DR 9-101(A) nor (B) came into play.

Background and rules framework

The opinion interpreted the former Alabama Code of Professional Responsibility, DR 9-101(A) (no private employment in a matter on whose merits the lawyer acted in a judicial capacity) and DR 9-101(B) (no private employment where the lawyer had substantial responsibility as a public employee). The disqualification of a former or part-time judge is now addressed by Rule 1.12, with the general conflict analysis under Rule 1.7.

Citations and references

Rules of Professional Conduct:

• Former Ala. Code of Prof. Resp. DR 9-101(A) (no private employment in a matter the lawyer judged on the merits); now Model Rule 1.12
• Former Ala. Code of Prof. Resp. DR 9-101(B) (no private employment where the lawyer had substantial public-employee responsibility); now Model Rule 1.11

See also

• AL Ethics Op. 1999-03: law partners of a substitute municipal judge representing clients
• AL Ethics Op. 2005-01: a city attorney who is also defense counsel in city court
• AL Ethics Op. 2008-02: imputed disqualification, part-time judges and part-time assistants
• AL Ethics Op. 1982-648: a city prosecutor's private criminal and civil cases
• RI EAP Op. 2012-04: A Law Partner's City Council Membership Does Not Per Se Bar Representing Clients Before the Municipality's Boards, Commissions, or Council

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1984-190/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-84-190.pdf

Original opinion text

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

ETHICS OPINION

RO-84-190

QUESTION:

"I have been approached by a police officer for advice, and possible representation, in a criminal case on an indictment which may be returned against him in [redacted] County, Alabama.

Before undertaking to represent him, and/or give him advice, in any way, I told him that since I serve as Municipal Judge for the City of [redacted], Alabama, and have contact with the Police Department, in that manner, I needed the benefit of an advisory opinion from you as to whether or not, there would be a conflict of interest, and, in the event, he was indicted and a civil suit filed against the City of [redacted], Alabama, by the personal representative of the slain man.

As you probably have guessed, this arose out of the shooting and killing of a suspect while fleeing from the police officers, one of whom is my prospective client."

ANSWER:

We perceive no ethical impropriety in your representing the police officer should he be indicted and representing the City of [redacted] should a civil suit be filed against the city by the personal representative of the slain man if in your capacity as Municipal Judge for the City of [redacted] you have not and will not act upon any facet of the merits concerning the possible indictment or civil suit against the City.

DISCUSSION:

Disciplinary Rule 9-101(A) provides:

"A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity."

Disciplinary Rule 9-101(B) provides:

"A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."

Disciplinary Rule 9-101(A) and Disciplinary Rule 9-101(B) appear to be the only pertinent parts of the Code of Professional Responsibility bearing upon the issue described in your request for opinion. From the facts set forth in your request for opinion we do not believe that either of these Disciplinary Rules come into play and, therefore, we see no objection to the representation which you propose in your request for opinion.

WHMjr/vf
2-19-85