Can a lawyer who sits on the city council represent clients before judges the council appoints if the lawyer abstains from the appointment vote?

Plain-English summary

The opinion addressed a lawyer who was also a city council member and asked whether the lawyer could represent private clients before the Recorder's Court, whose judges the council appoints, if the lawyer abstained from voting on those appointments. The Board first noted what it could not do: a complete answer would require interpreting Young v. Champion, 142 Ga. App. 687 (1977), which upheld disqualification of a commissioner from representation before a Recorder's Court judge appointed by the commission, and the Board has no authority to interpret court opinions. With no Georgia Standard of Conduct directly applicable, it offered ethical advice based on the broader ethical regulations.

Relying on Directory Rule 8-101(a)(2), which provides that a lawyer holding public office shall not use the public position to influence a tribunal to act in favor of the lawyer or a client, the Board reasoned that the city council stands in the position of employer of the Recorder's Court judge, and that an attorney/council member who appears before that judge exercises an inherent influence, however unintentional, with even the effort to avoid its effect changing the relationship. On that basis the Board advised the attorney/council member to avoid representation before the judge.

The Board specifically rejected abstaining from the appointment vote as a remedy. Citing Ethical Considerations 8-6 and 8-8, it explained that a lawyer is uniquely qualified to evaluate candidates for the bench and has a special responsibility to aid in selecting qualified judges, so the lawyer should not abandon that public responsibility for private gain. Finally, the Board concluded that the lawyer's resulting disqualification is personal and is not imputed to other members of the firm, because no conflict-of-interest or confidentiality concerns requiring imputed disqualification were present.

Currency note

This opinion was issued in 1989, before the State Bar of Georgia adopted the Georgia Rules of Professional Conduct in 2001, which replaced the Code of Professional Responsibility this opinion construes. The State Bar's headnote notes the opinion bears on matters addressed by Comment 2 of Rule 3.5 (impartiality and decorum of the tribunal). 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: Can a lawyer on the city council appear before judges the council appoints?

A: The opinion advised against it, reasoning that the council stands as the judge's employer and the attorney/council member's appearance carries an inherent influence on the tribunal under DR 8-101(a)(2).

Q: Does abstaining from the appointment vote fix the problem?

A: No. The opinion said abstention is not a remedy and that the lawyer should not abandon the public responsibility to help select qualified judges for private gain, citing EC 8-6 and EC 8-8.

Q: Is the lawyer's whole firm disqualified?

A: No. The opinion concluded the disqualification is personal to the attorney/council member and is not imputed to the other members of the firm, because no conflict or confidentiality concern required imputation.

Background and rules framework

The opinion relied on the Georgia Code of Professional Responsibility, in particular Directory Rule 8-101(a)(2) (a lawyer holding public office shall not use the position to influence a tribunal) and Ethical Considerations 8-6 and 8-8 (the lawyer's responsibility in judicial selection and the public officer's duty to avoid conflicts with official duties). The State Bar's headnote connects the opinion to Comment 2 of Rule 3.5.

Citations and references

Rules of Professional Conduct:

• MR 3.5 / Ga. RPC 3.5 (impartiality and decorum of the tribunal; the headnote cites Comment 2)

Former rules construed:

• DR 8-101(a)(2); Ethical Considerations 8-6 and 8-8

Cases:

• Young v. Champion, 142 Ga. App. 687 (1977) (disqualification of a commissioner before a commission-appointed judge; the Board declined to interpret it)

See also

• GA Ethics Op. 86-2: Part-Time Judge as Defense Counsel
• GA Ethics Op. 86-3: County Attorneys Representing Criminal Defendants
• GA Ethics Op. 05-12: Council Member as Defense Lawyer

Source

• Landing page: https://www.gabar.org/handbook?rule=rule518

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 February 9, 1989

Formal Advisory Opinion No. 89-2

This opinion relies on the Canons of Ethics, including both Directory Rules and Ethical Considerations that bear upon matters directly addressed by Comment 2 of Rule 3.5 .

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

Ethical propriety of an attorney/city council member's representing private clients before city council-appointed Judges of the Recorder's Court if the attorney abstains from voting on the appointment.

An attorney, who is also a member of the city council, should avoid representing private clients before the Recorder's Court when the city council appoints the judges of the Recorders Court, and should not abstain from voting on judicial appointments.

Correspondent asks if it is ethically proper for an attorney, who is also a member of the city council, to represent private clients before the Recorder's Court, when the city council appoints the Judges of the Recorder's Court, if the attorney abstains from voting on judicial appointments. 1 Correspondent also asks if other members of his or her law firm would be prohibited from such representation by imputed disqualification.

A full response to this inquiry would go beyond the ethical regulations and requires interpretation of Young v. Champion , 142 Ga. App. 687 (1977), in which the Court upheld the disqualification of a Commissioner from representation before a Recorder's Court judge who was appointed by the Commission. The Advisory Opinion Board, however, is without authority to interpret court opinions.

There are no Georgia Standards of Conduct applicable to this particular situation. An advisory opinion is not, however, limited to disciplinary issues in its interpretations of the ethical regulations of the State Bar of Georgia. This Advisory Opinion therefore offers ethical advice based on the applicable ethical regulations.

Directory Rule 8-101(a)(2) provides:

"A lawyer who holds public office shall not use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or a client."The city council is, in the situation in question, in the position of employer of the Judge of the Recorder's Court. There is inherent influence in such a position. An attorney/council member who appears before that Judge exercises that influence however unintentional the "use "of it may be and however determined both the Judge and the attorney may be to avoid its effect. Even the effort to avoid the effect changes the nature of the relationship between the Judge and the attorney. As a matter of ethical advice, we believe that the attorney/council member should avoid representation before the Judge of the Recorder's Court.

Correspondent's question seeks to avoid the inherent influence of his or her position by abstaining from all voting on the appointment of the Judges of the Recorder's Court. We cannot advise abstention as a remedy. The attorney, as noted in Ethical Consideration 8-6, is uniquely qualified to evaluate the qualifications of those seeking appointment to the bench. Lawyers have a "special responsibility to aid in the selection of only those who are qualified."EC 8-6. The attorney/council member should not avoid that public responsibility for private gain. To do so would be counter to the ethical advice of Ethical Consideration 8-8, "A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."

If correspondent follows the advice of this Opinion he will disqualify himself from representation before the Judges of the Recorder's Court. That disqualification is personal and is not imputed to the other members of the firm. In this case there are no concerns of conflicts of interest of confidentiality requiring imputed disqualification. 2

1 This opinion would not apply where city council members do not participate in appointing city judges.

2 The Board notes that its opinion in this case, and the holding of Young v. Champion, appear to be contrary to the following Advisory Opinions from other jurisdictions: Adv. Opin. #5 (New Hampshire, 10/23/81); Adv. Opin. #84-18 (South Carolina, undated); Adv. Opin. CI #990 (Michigan 12/13/83).