When a city attorney prosecutes a county's cases under contract, are the two offices one 'firm' that cannot swap conflict cases?

Plain-English summary

A rural County Attorney and a City Attorney had a longstanding practice of swapping cases when one office had a conflict between a staff attorney and a defendant. After the county and city consolidated their Justice and Magistrate Courts, the City Attorney's firm took over all prosecutions under a contract with the county, with the City Attorney designated a Deputy County Attorney. The County Attorney would have no supervision over individual cases but could revoke the appointment at any time. He asked whether the offices could still exchange conflict cases.

The committee framed the issue as imputed disqualification: whether the contractual relationship made the offices one "firm" under ER 1.10(a). It acknowledged that a lawyer working for another under contract is normally treated as a member of the same firm, because such lawyers typically discuss cases and share access to confidential information, and that an organization operating like a private firm is treated as one (citing Opinion 89-08, which treated a Public Defender's Office as a firm). A supervising attorney would ordinarily need information about the other's caseload, much like a partner supervising an associate under ER 5.1.

The committee concluded, however, that whether an independent-contractor arrangement creates a firm turns on the specific facts, and these facts were not that close. The City Attorney contracted with the county, not the inquiring attorney personally, and the County Attorney would have no supervisory control, so there was little danger the offices would discuss pending matters or exchange confidential information. The qualification was the termination power: to the extent the County Attorney's ability to revoke the contract at any time required him to review confidential information about the City Attorney's prosecutions, he should treat the two offices as one firm for ER 1.10(a). So the contract did not by itself bar the case exchange, but the inquiring attorney had to assess whether his termination power required access to confidential case information.

Currency note

This opinion was issued in 1991, before Arizona's 2003 adoption of the Ethics 2000 revisions to the Rules of Professional Conduct. The imputation rule (ER 1.10) and the conflict rules for government lawyers have since been revised. 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: Does a contract to prosecute a government's cases make the two offices one law firm?

A: Not automatically. The opinion concluded the question turns on the specific facts, and a contract alone, without supervision or shared confidential information, did not make the City and County Attorney's offices one "firm" under ER 1.10.

Q: So can the offices keep swapping their conflict cases?

A: Yes, under these facts, because there was little danger the offices would discuss pending matters or exchange confidential information about the misdemeanor prosecutions.

Q: What was the catch the committee flagged?

A: The County Attorney's power to revoke the contract at any time. The opinion concluded that to the extent exercising that power required reviewing confidential information about the City Attorney's cases, the offices should be treated as one firm under ER 1.10(a).

Background and rules framework

The opinion applies ER 1.10 (Model Rule 1.10) on imputed disqualification, which imputes one lawyer's ER 1.7, 1.8(c), 1.9, or 2.2 conflict to all lawyers in a "firm," with the Comment noting that the existence of a firm turns on factors such as a formal agreement and mutual access to confidential client information. ER 1.7 (Model Rule 1.7) supplied the underlying conflict rule, and ER 5.1 (Model Rule 5.1) framed the supervisory-lawyer analogy the committee drew.

Citations and references

Rules of Professional Conduct:

• MR 1.10 / AZ ER 1.10 (imputed disqualification; what is a "firm")
• MR 1.7 / AZ ER 1.7 (conflict of interest, general rule)
• MR 5.1 / AZ ER 5.1 (responsibilities of supervisory lawyers)

Other opinions cited:

• Arizona Opinion 89-08 (1989): a Public Defender's Office is a "firm" within ER 1.10(b)

See also

• AZ Ethics Op. 89-08: Imputed Disqualification in Government Practice
• AZ Ethics Op. 91-05: Imputed Disqualification
• AZ Ethics Op. 96-03: Public Defender Conflicts and Imputation

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=627

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

4/1991

Contractual relationship existing between the County Attorney's office and the City Attorney's office does not, in itself, prohibit the two offices from exchanging cases due to conflicts of interest.

FACTS

The inquiring attorney is the County Attorney of a rural Arizona county. In the past, he has referred to a local City Attorney the prosecution of cases involving a conflict of interest between an attorney in his office and the defendant. In return, the City Attorney has referred cases to the County Attorney's office whenever an attorney in his office has a similar conflict.

The county and the city have now consolidated the Justice and Magistrate Courts. As part of the consolidation, all prosecution will be performed by the City Attorney’s firm under a contract with the county. The City Attorney will be designated as a Deputy County Attorney for this purpose. The inquiring attorney discloses that he will have no supervision or oversight over individual cases, but that he retains the power to revoke the City Attorney's appointment as special deputy at any time.

QUESTION

May the County Attorney's office and the City Attorney's office ethically continue to exchange cases involving conflicts, after the city has entered into a contract with the county to prosecute all cases in the Justice and Magistrate courts?

ETHICAL RULES INVOLVED

ER 1.7. Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation Ct that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

ER 1.10. Imputed Disqualification: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8(c), 1.9 or 2.2.

(d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in ER 1.7.

Comment to ER 1.10: ...The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to confidential information concerning the clients they serve...

OPINION

The issue presented in this inquiry is whether a County Attorney, by virtue of entering into a contract with the City Attorney who will prosecute the county's misdemeanor criminal cases, will be precluded from referring cases to the City Attorney in which the County Attorney has a conflict of interest. Essentially, the question is one of imputed disqualification. We must determine whether, under the facts, the contractual relationship between the City Attorney and County Attorney makes them a "firm" for purposes of ER 1.10(a). If ER 1.10 applies, the County and City Attorneys may not continue to exchange cases.

Normally, an attorney who works for another pursuant to a contract should be treated as a member of the same law firm for purposes of the imputed disqualification rule. Typically, lawyers working in an independent contractor relationship will discuss cases and have mutual access to confidential information, much the same as if they were two members of the same law firm. This committee has previously determined that, where an organization operates much like a private law firm, it will be treated as one for purposes of ER 1.10. Opinion No. 89-08 (October 19, 1989) (Public Defender's Office is a "firm" within ER 1.10(b)). It is likely that an attorney with supervisory responsibilities in any independent contractor relationship would need information with respect to the other attorney's caseload to assess compliance with the contract. In fact, the Rules of Professional Conduct require attorneys with supervisory responsibilities to make reasonable efforts to ensure that lawyers under their supervision conform to the Rules. See ER 5.1. In this respect, the inquiring attorney would operate much like a partner who supervises an associate at a law firm.

Ultimately, however, the question of whether an independent contractor arrangement creates a "firm" is based on the particular facts of the arrangement. See Comment to ER 1.10. The facts of the present inquiry suggest a contractual relationship that is not as close as that which would typically be encountered. The City Attorney has contracted with the county, not with the inquiring attorney personally; in fact, the inquiring attorney has informed us that he would have no supervisory control over the City Attorney at all. In these circumstances, there is little danger that the City and County Attorneys' offices will discuss pending matters or exchange confidential information regarding the misdemeanor prosecution cases the City Attorney is handling on behalf of the county.

Nevertheless, the inquiring attorney states that he would have the power to terminate the contract at any time. To the extent that this power involves a review of the City Attorney's workload, and specifically a review of any confidential information pertaining to the misdemeanor prosecutions performed by the City Attorney, the inquiring attorney should consider the County Attorney's Office and the City Attorney's Office to be one "firm" for purposes of ER 1.10(a).

In conclusion, it is our opinion that the contractual relationship existing between the City Attorney's Office and the County Attorney's Office does not, in itself, prohibit the two offices from exchanging cases when conflicts arise. However, the inquiring attorney should determine whether the terms of the contract, and specifically his ability to terminate the contract at any time, require him to be familiar with confidential information concerning the City Attorney's cases.

©State Bar of Arizona 1991