May a part-time city prosecutor in private practice defend criminal cases that arise in the surrounding judicial district but not in the city that employs him?
LACBA Ethics Opinion 276: A Part-Time City Prosecutor Defending Criminal Cases
Short answer: The committee concluded that a part-time city prosecutor who also engages in private practice may not ethically represent defendants in criminal actions arising in the judicial district, even where those actions do not arise in the city that employs him, because the positions of prosecutor and defense counsel are inherently antagonistic.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Los Angeles County Bar Association's view of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
In a district composed of nine municipalities, city prosecutors were employed part-time and simultaneously maintained private law practices. The committee was asked whether such a prosecutor could ethically represent defendants in criminal cases arising in the district but not in the city by which he was employed.
Relying on a line of ABA and committee opinions that uniformly condemned a public prosecutor's representation of persons charged with crime, the committee concluded that the conduct was no less censurable because the public officer was a part-time employee or because the defense was undertaken in a jurisdiction different from the place of employment. The principal rationale was that the conduct violates Canon 6, which forbids representation of conflicting interests, and that no question of consent could arise because the public is the concerned party and cannot consent.
The committee also identified practical concerns: the cooperation between prosecutors and law enforcement agencies that aids the administration of criminal justice would be seriously impaired if the conduct were condoned, and that same cooperation might give the attorney access to confidential information, leading him into a violation of Canon 37.
Currency note
This opinion was issued in 1963, before California adopted the former Rules of Professional Conduct (effective 1989) and long before the current rules that follow the ABA Model Rules format (effective November 1, 2018). It interpreted former State Bar Rules 5, 6, and 7 and ABA Canons 6 and 37. The rules governing conflicts of interest and the special responsibilities of government lawyers have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.
Common questions
Q: Could a part-time city prosecutor defend a criminal case as long as it arose outside his own city?
A: Per the opinion, no. The committee concluded the conflict was no less objectionable because the case arose elsewhere in the district; the positions of prosecutor and defense counsel are inherently antagonistic.
Q: Could a client's consent cure the conflict?
A: Per the opinion, no. The committee concluded that no question of consent could be involved because the public is the concerned party and cannot consent.
Q: Why did the committee treat this as a conflict even outside the prosecutor's own city?
A: Per the opinion, because the cooperation between prosecutors and law enforcement would be impaired if the conduct were condoned, and that cooperation could give the prosecutor access to confidential information, risking a violation of the confidentiality canon.
Background and rules framework
The opinion predates the Model Rules and the numbered California rules. It interpreted former State Bar Rules 5, 6, and 7 and ABA Canons 6 (conflicting interests) and 37 (confidences). Those authorities map to today's conflict-of-interest rule (Model Rule 1.7) and the special-conflicts rule for current and former government officers and employees (Model Rule 1.11). The committee grounded the prohibition on the inherent antagonism between the prosecutorial and defense roles.
Citations and references
Rules of Professional Conduct (as in effect at the time):
- Former State Bar of California Rules 5, 6, 7
- ABA Canons of Professional Ethics 6, 37
Other opinions cited:
- ABA Committee Opinions 30, 34, 118, 142; LACBA Opinion 242
See also
- LACBA Ethics Op. 453: Criminal Defense by a Member of a City-Prosecutor Firm
- LACBA Ethics Op. 459: County Counsel Conflict in a Juvenile Dependency Proceeding
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2011008