Can a county attorney in Georgia represent criminal defendants?

Plain-English summary

The opinion addressed whether a county attorney, or the county attorney's partners or associates, may represent criminal defendants. The Board treated the issue as one of potential conflict of interest. It recognized that the office of county attorney creates a lawyer-client relationship between the attorney and the county, and that the county attorney is authorized to prosecute violations of county ordinances on behalf of the county. In that prosecuting capacity the county attorney's duty to the county was said to resemble a solicitor's duty to the State, so the Board concluded it would be improper for a county attorney to represent a criminal defendant charged with violating a county ordinance.

Beyond that situation, the Board found no per se ethical disqualification. It reasoned that the county attorney's general obligation is the zealous representation of the client's best interests, and that any conflict created by representing clients other than the county should be analyzed like any other conflict arising from differing or potentially differing interests. On that reasoning, neither the county attorney nor the attorney's partners or associates are categorically barred from defending criminal cases.

The Board added two qualifications. Where the representation would violate Standard No. 35 or Standard No. 36 (the conflict standards), it is prohibited, and under Standard No. 38 as amended that disqualification is imputed to all members of the firm. And even without a per se bar, a particular county attorney could still be disqualified where representing county prosecution or law-enforcement agencies might adversely affect the attorney's independent professional judgment, so the Board cautioned county attorneys to be sensitive to that possibility. The Board expressly limited its opinion to ethical propriety and offered no view on constitutional ineffective-assistance or statutory disqualification questions.

Currency note

This opinion was issued in 1987, before the State Bar of Georgia adopted the Georgia Rules of Professional Conduct in 2001, which replaced the Standards of Conduct this opinion construes. The State Bar's headnotes map Standard 35 to Rule 1.7(a), Standard 36 to Rules 1.7(a) and 2.2(a), and Standard 38 to Rule 1.10(a). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Is a Georgia county attorney automatically barred from defending criminal cases?

A: No. The opinion concluded there is no per se ethical disqualification of a county attorney, or the attorney's partners or associates, from representing criminal defendants generally.

Q: When is a county attorney prohibited from defending a criminal case?

A: The opinion found it improper for a county attorney to represent a defendant charged with violating a county ordinance, because the county attorney is authorized to prosecute those violations on the county's behalf.

Q: How is any other conflict evaluated?

A: The opinion directed that a county attorney's representation of clients other than the county be analyzed like any other conflict of differing or potentially differing interests, under Standards 35 and 36, with disqualification imputed to the whole firm under Standard 38.

Background and rules framework

The opinion construed the former Standards of Conduct governing conflicts of interest: Standard No. 35 and Standard No. 36 (now associated with Rule 1.7(a), and Rule 2.2(a)) and the imputed-disqualification provision of Standard No. 38 (now Rule 1.10(a)). It analyzed the county attorney's dual role as counsel to the county and as a potential prosecutor of county-ordinance violations.

Citations and references

Rules of Professional Conduct:

• MR 1.7 / Ga. RPC 1.7(a) (conflicts of interest; current analog to former Standards 35 and 36)
• MR 1.10 / Ga. RPC 1.10(a) (imputed disqualification; current analog to former Standard 38)
• Ga. RPC 2.2(a) (intermediary; analog cited in the headnote for Standard 36)

Former standards construed:

• Standard of Conduct No. 35, No. 36, and No. 38 (Georgia Standards of Conduct)

See also

• GA Ethics Op. 86-2: Part-Time Judge as Defense Counsel
• GA Ethics Op. 05-12: Council Member as Defense Lawyer
• GA Ethics Op. 93-3: Prosecutor Conditioning Plea on Fee Waiver

Source

• Landing page: https://www.gabar.org/handbook?rule=rule504

Original opinion text

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

State Bar of Georgia
Issued by the Supreme Court of Georgia
On December 17, 1987
Formal Advisory Opinion No. 86-3

For references to Standard of Conduct 35, please see Rule 1.7(a) .

For references to Standard of Conduct 36, please see Rules 1.7(a) , and 2.2(a) .

For references to Standard of Conduct 38, please see Rule 1.10(a) .

For an explanation regarding the addition of headnotes to the opinion, click here .

Ethical Propriety of County Attorneys Representing Criminal Defendants.

There is no basis for a per se ethical disqualification of county attorneys from the representation of criminal defendants, unless the defendant is charged with a violation of a county ordinance. Any conflict of interest raised by a county attorney's representation of clients other than the county should be analyzed in the same fashion as any other conflict arising from the representation of differing or potentially differing interests. County attorneys must be especially sensitive to the possibility of conflict created by their role, if any, as prosecutor.

Correspondent requests guidance as to whether county attorneys or their partners or associates may represent criminal defendants.

The primary issue is potential conflict of interest. The position of county attorney obviously creates a lawyer-client relationship between the attorney and the county governmental unit. The county attorney is not called upon by election or oath of office to enforce the laws of the State. The county attorney is, however, authorized to prosecute violations of county ordinances on behalf of the county. When he or she is acting in such a capacity the duty to the county is similar to that of a solicitor to the state. Based on the reasoning of Proposed Formal Advisory Opinion No. 86-2, it would be ethically improper for a county attorney to represent a criminal defendant charged with a violation of a county ordinance.

More generally, the county attorney's obligation is zealous representation of the best interests of his or her client. Any conflict of interest created by a county attorney's representation of clients other than the county should be analyzed like any other conflict arising from the representation of differing or potentially differing interests. There is, therefore, no basis for a per se ethical disqualification of a county attorney or partners or associates from the representation of criminal defendants. In those specific situations in which such representation would violate Standards No. 35 or 36, the representation is obviously prohibited. When representation is prohibited by Standard No. 35 or Standard No. 36, Standard No. 38, as amended, would impute the disqualification of the attorney to all members of the firm.

While no per se disqualification bars county attorneys unless the defendant is charged with a violation of a county ordinance, a given county attorney may nevertheless be ethically disqualified from the representation of criminal defendants in the county. Legal representation of county prosecution or law enforcement agencies may affect adversely the attorney's independent professional judgment. All county attorneys need to be sensitive to the possibility of such potential conflict.

This advisory opinion is necessarily limited to the ethical propriety of the conduct in question. We offer no opinion on either the constitutional issues of ineffective assistance of counsel or statutory issues of disqualification.