Can a lawyer's firm serve as a city's prosecuting attorney when a member of that firm sits on the same city's council?

Plain-English summary

A lawyer who was about to take office as a city councilman asked whether his firm, a professional corporation, could be appointed as the city's prosecuting attorney while he served on the city council. The mayor wished to present the firm to the council for the appointment.

The Disciplinary Commission concluded the lawyer or a member of his firm may act as prosecuting attorney for the City while he occupies the position of city councilman. The opinion relied on RO-90-35, in which the Commission held that a law firm could represent a city school board when a firm member had been appointed to serve on that same board. The opinion explained that earlier opinions barring lawyers on city councils from representing interests adverse to the City (in municipal court proceedings, or in proceedings involving municipal ordinances or authorities) were predicated on an adverse relationship and an appearance of impropriety: the lawyer or firm is identified with the City's interests through the council, yet would be attacking the City's interests or credibility through an adverse representation. Because the prosecutor role is not adverse to the City, no such conflict was present, and RO-90-35 was treated as dispositive.

The opinion added a separate caution: although not part of the question, the Commission's view was that the lawyer should not participate in the city council's hiring decision regarding his own firm.

Currency note

This opinion was issued in 1992, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 city councilman's law firm serve as the city's prosecuting attorney?

A: Per the opinion, yes. The Commission concluded the prosecutor role is not adverse to the City, so it differs from representations that would put the lawyer against the City's interests.

Q: Why is serving as city prosecutor treated differently from suing the city?

A: The opinion explained that the earlier bar rested on an adverse relationship and appearance of impropriety; prosecuting for the City aligns with, rather than opposes, the City's interests, so no disqualifying conflict arises.

Q: Should the councilman take part in the council's decision to hire his firm?

A: No. The opinion stated the lawyer should not participate in the city council's hiring decision regarding the firm.

Background and rules framework

The opinion applies the conflict-of-interest principles of Rule 1.7 (Model Rule 1.7) of the Alabama Rules of Professional Conduct, drawing on prior Alabama opinions (notably RO-90-35) addressing lawyers who hold local government office and whether their firm's representation is adverse to the governmental body.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Ala. R. Prof. C. 1.7 (conflict of interest; representation adverse to a client)

Other opinions cited:

• RO-90-35: a firm may represent a city school board when a firm member serves on that board

See also

• AL Ethics Op. 1992-18: prosecutor who served as DA when the defendant was investigated
• AL Ethics Op. 1991-44: district attorney's office prosecuting a criminal defendant
• RI EAP Op. 2005-09: Election to City Council Does Not Per Se Bar Representing Clients Before the City's Planning and Zoning Boards
• 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
• RI EAP Op. 2013-04: A City Council Member May Represent Clients Charged by the City, With Rule 1.7(b) Written Waivers and a Co-Defendant Conflict Check

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-22/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-92-22.pdf

Original opinion text

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

ETHICS OPINION

RO-92-22

QUESTION:

"I will take office as a city councilman for the City of ______ on October 5, 1992. The mayor has approached our firm, a professional corporation, about presenting our firm to the council for appointment as the prosecuting attorney for the city.

I request a formal opinion as to the propriety of an attorney's law firm being appointed as prosecuting attorney for the city where the attorney member sits on city council of that city.

The mayor wishes to present this matter to the city council on Tuesday, October 6, 1992, if an opinion can be rendered by that date."

ANSWER:

It is the opinion of the Disciplinary Commission that you or a member of your law firm may act as prosecuting attorney for the City while you occupy the position of city councilman.

DISCUSSION:

In RO-90-35, the Disciplinary Commission held that a law firm could represent a city school board when a member of that law firm had been appointed by the city council to serve as a member of that same school board. In that opinion, we pointed out that the Disciplinary Commission held that lawyers serving on city councils may not represent an interest adverse to the City in any municipal court proceeding or in any proceeding involving municipal ordinances or authorities. This opinion and others that preceded it were predicated upon the premise of an adverse relationship and an appearance of impropriety in that, on the one hand, the lawyer or law firm is identified with the interests of the City by virtue of participation in the city council and, on the other hand, the lawyer or law firm is attacking the interests or credibility of the City by an adverse representation. Since we found no adverse representation in representing the city school board while a member of the firm was a member of that board, we determined that it was permissible. It is our view that this opinion is dispositive of the question that you present. Ethics Opinion 90-35 is attached and made a part hereof.

You also mention in your question that the mayor will present your firm or a member of your firm to the council for appointment as the prosecuting attorney for the City. While not a part of your question, it is the view of the Disciplinary Commission that you should not participate in this hiring decision of the city council.

RWN/vf

10/1/92