Can a lawyer who serves as a municipal attorney also defend criminal defendants in that municipality's court or in cases involving the municipality?

Plain-English summary

Opinion 46 (adopted February 20, 1971; revised May 18, 1996) addressed lawyers in private practice who are also employed by, or on retainer to, a municipality, and whether they may defend clients in municipal court or in other litigation affecting the municipality's interests. The Committee treated the fee arrangement as immaterial; the controlling factor is the lawyer's continuing employment as a municipal representative and public identification with that role.

Applying Rule 1.7(b) and (c) and Rule 8.4(e), the Committee concluded that a lawyer employed as a municipal attorney may not represent a criminal defendant prosecuted in that municipal court, because the government's interests are antagonistic to the client's, the lawyer is materially limited by obligations to the municipality, and there is a great risk that the dual role implies an ability to influence the municipal court improperly. The Committee allowed two narrower possibilities, each requiring compliance with Rule 1.7(b): a municipal attorney may, in appropriate situations and with consent, represent a criminal defendant in a non-municipal court case where a municipal employee will testify for the prosecution; and in exceptional circumstances may represent a party whose position could adversely affect the validity of a municipal law or ordinance. Even where consent is obtained, the Committee cautioned that Rule 1.7(c) bars consent where a disinterested lawyer would conclude the client should not agree, noting it is unlikely a disinterested lawyer could approve consent in the ordinance-validity situation. It quoted the Iowa Supreme Court (via the committee's Opinion 97) on the conflicting loyalties and public mistrust that attend lawyers serving in dual public-private roles.

Currency note

This opinion was adopted in 1971 and revised May 18, 1996 to apply the Colorado Rules of Professional Conduct (effective January 1, 1993); it predates Colorado's 2008 revisions to those rules. The revised opinion applies Rule 1.7(b) and (c) and Rule 8.4(e); the consent standard in former Rule 1.7(c) was reorganized in the 2008 amendments, and the conflict rules have since changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a municipal attorney defend a criminal case in the same municipal court?

A: No, under this opinion. The Committee concluded that representing a defendant prosecuted in that municipal court violates Rules 1.7(b) and 8.4(e), because of the antagonistic interests and the risk of implying improper influence over the court.

Q: Can a municipal attorney defend a case in another court where a city employee will testify?

A: Sometimes, with consent. The opinion concluded a municipal attorney may, in appropriate situations and after consultation and consent under Rule 1.7(b), represent a defendant in a non-municipal court case in which a municipal employee will appear as a prosecution witness.

Q: Can the municipal attorney challenge a municipal ordinance for a private client?

A: Only rarely, and consent may be impossible. The opinion concluded such representation requires Rule 1.7(b) consent, but cautioned that under Rule 1.7(c) a disinterested lawyer would likely conclude the client could not agree in most ordinance-validity situations.

Background and rules framework

The opinion applied Rule 1.7(b) and (c) (conflicts of interest; the disinterested-lawyer limit on consent) and Rule 8.4(e) (implying an ability to influence a governmental agency or official improperly) of the Colorado Rules of Professional Conduct. The corresponding Model Rules are 1.7 and 8.4. The Committee referenced its Opinion 97 and Iowa Ethics Opinion 91-49.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.7(b), (c) / Model Rule 1.7 (conflicts of interest; consent limits)
• Colo. RPC 8.4(e) / Model Rule 8.4 (implying an ability to influence improperly)

Other opinions cited:

• CBA Formal Opinion 97 (lawyers in dual public-private roles)
• Iowa Ethics Opinion 91-49 (conflicting loyalties of public-servant advocates)

See also

• CBA Formal Op. 45: Part-Time Judge Representing Clients
• CBA Formal Op. 48: Representing a Public Body and a Private Client
• CBA Formal Op. 14: Attorney as City Councilman

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/ethicsOpinions/FormalEthicsOpinion_46.pdf?ver=2016-10-04-104002-723