Can a lawyer who serves on a city council defend criminal cases in which the police, whose pay the council controls, exercise charging discretion?

Plain-English summary

The opinion addresses whether an attorney who is a member of a city council, where the council controls the salary and benefits of the police department, may represent criminal defendants in matters in which the police exercise discretion over the charges. The Board concludes the situation implicates Rule 3.5(a), and that the representation should be avoided wherever it may create an appearance of impropriety.

The opinion explains the structural concern: particularly in small municipalities, a council member who votes on police pay may create a perception that a police officer's judgment could be affected, for example a reluctance to oppose a council member's request to recommend lesser charges or dismissal. The opinion describes this as an inherent influence present even if the council-member attorney does not try to use the position to affect the proceeding.

The opinion applies Rule 3.5(a), which bars a lawyer from seeking to influence a judge, juror, or other official by means prohibited by law. It concludes that a police officer who exercises discretion over prosecution is a public official within the meaning of the rule. But by its terms Rule 3.5(a) applies only where the attorney has the intent to influence the official by prohibited means; an attorney who signaled that a favorable recommendation would bring benefits to an officer, or an unfavorable one harm, would commit bribery or extortion and also violate Rule 3.5(a).

The opinion is careful to state that the mere fact of a council-member attorney representing a criminal defendant, where the council controls police pay and the police exercise charging discretion, does not by itself establish a Rule 3.5(a) violation; a violation requires a showing that the attorney sought to exercise influence by prohibited means. The opinion then invokes Comment 2 to Rule 3.5, which directs advocates to act so that there is no appearance of impropriety, and concludes that an attorney should not represent a criminal defendant where an inference of improper influence can reasonably be drawn.

In practice

The opinion holds that, under Georgia Rule 3.5(a) as it stood at the time of the opinion, a council-member attorney's representation of criminal defendants in matters where the police (whose pay the council controls) exercise charging discretion is not by itself a violation, but becomes improper where an inference of improper influence can reasonably be drawn. The opinion treats the police officer exercising prosecutorial discretion as a public official under the rule, and notes that an explicit quid pro quo with an officer would constitute bribery or extortion as well as a Rule 3.5(a) violation.

Common questions

Q: Can a lawyer on the city council defend criminal cases handled by the city's police?

A: The opinion concludes the representation implicates Rule 3.5(a) and should be avoided where an inference of improper influence can reasonably be drawn. The mere fact of the representation is not automatically a violation, but the appearance-of-impropriety concern controls.

Q: Is a police officer an "official" under Rule 3.5(a)?

A: The opinion concludes that where a police officer exercises discretion over the prosecution of criminal charges, the officer is a public official within the meaning of Rule 3.5(a).

Q: When does this cross into an actual violation?

A: The opinion explains that Rule 3.5(a) requires intent to influence by prohibited means. An attorney who indicated that a favorable charging recommendation would benefit an officer, or an unfavorable one would harm the officer, would commit bribery or extortion and violate Rule 3.5(a).

Background and rules framework

The opinion interprets Georgia Rule of Professional Conduct 3.5(a) (a lawyer shall not seek to influence a judge, juror, or other official by means prohibited by law, including Comment 2 on avoiding the appearance of impropriety; Model Rule 3.5). It cites Georgia case law on who is a public official (White v. Fireman's Fund Ins. Co., 233 Ga. 919 (1975); Sauls v. State, 220 Ga. App. 115 (1996); cf. O.C.G.A. 45-5-6) and the bribery and extortion statutes (O.C.G.A. 16-10-2 and 16-8-16). This opinion replaced the earlier FAO 00-1.

Citations and references

Rules of Professional Conduct:

• Georgia RPC 3.5(a) (improper influence on judges and officials), including Comment 2 / Model Rule 3.5

Statutes:

• O.C.G.A. 16-10-2 (bribery); O.C.G.A. 16-8-16 (extortion); O.C.G.A. 45-5-6 (cited)

Cases:

• White v. Fireman's Fund Ins. Co., 233 Ga. 919 (1975); Sauls v. State, 220 Ga. App. 115 (1996), police officer as a public official

See also

• GA Ethics Op. 05-3: Law Clerk Before Employer-Judge
• ABA Formal Op. 97-405: Conflicts in Representing Government Entities

Source

• Landing page: https://www.gabar.org/handbook?rule=rule451

Original opinion text

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

Click here for an explanation regarding the history of this opinion.

FORMAL ADVISORY OPINION NO. 05-12
Approved And Issued On July 25, 2006 Pursuant To Bar Rule 4-403
By Order Of The Supreme Court Of Georgia Thereby Replacing FAO No. 00-1
Supreme Court Docket No. S06U1489

QUESTION PRESENTED:

When the City Council controls the salary and benefits of the members of the Police Department, may a councilperson, who is an attorney, represent criminal defendants in matters where the police exercise discretion in determining the charges?

SUMMARY ANSWER:

Representation of a criminal defendant in municipal court by a member of the City Council where the City Council controls salary and benefits for the police implicates Rule 3.5(a), which prohibits attorneys from seeking to influence officials by means prohibited by law. In any circumstance where the representation may create an appearance of impropriety it should be avoided.

OPINION:

This opinion addresses itself to a situation where the City Council member votes on salary and benefits for the police. Particularly in small municipalities, this situation could give rise to a perception that a police officer's judgment might be affected. For example, a police officer might be reluctant to oppose a request that he recommend lesser charges or the dismissal of charges when the request comes from a council member representing the accused. Situations like the one at hand give rise to inherent influence which is present even if the attorney who is also a City Council member attempts to avoid using that position to influence the proceedings.

Rule 3.5 provides that "A lawyer shall not, without regard to whether the lawyer represents a client in the matter: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law...."As a general matter, a police officer is a public official. See White v. Fireman's Fund Ins. Co., 233 Ga. 919 (1975); Sauls v. State, 220 Ga. App. 115 (1996). But see O.C.G.A. §45-5-6. Where a police officer exercises discretion as to the prosecution of criminal charges, the police officer is a public official within the meaning of Rule 3.5(a). By its express terms, Rule 3.5(a) applies only when an attorney seeks to influence, that is where an attorney has the intent to influence, an official by means prohibited by law. If an attorney were to indicate to an officer that as a result of the attorney's position as a member of the City Council a favorable recommendation as to one of the attorney's clients would result in benefits flowing to the officer, or that an unfavorable recommendation would result in harm, the attorney would have committed the offense of bribery, OCGA §16-10-2 (a)(1), or extortion, OCGA §16-8-16(a)(4). The attorney would also have violated Rule 3.5(a).

The mere fact of representation of a criminal defendant by an attorney who is a member of the City Council, when the City Council controls the salary and benefits of the members of the Police Department, and when the police exercise discretion in determining the charges does not, by itself, establish a violation of Rule 3.5(a). To establish a violation, there must be a showing that the attorney sought to exercise influence in a manner prohibited by law. We note, however, that Comment 2 to Rule 3.5 provides that "The activity proscribed by this Rule should be observed by the advocate in such a careful manner that there be no appearance of impropriety."Pursuant to Rule 3.5, therefore, an attorney should not represent a criminal defendant where an inference of improper influence can reasonably be drawn.