Can a lawyer defend criminal defendants when other lawyers in the same firm prosecute municipal code violations for a city, even if the prosecutions and defenses are entirely unrelated?
LACBA Ethics Opinion 453: Criminal Defense by a City-Prosecutor Firm
Short answer: The committee concluded that a firm may not represent criminal defendants in misdemeanor or felony cases when the firm prosecutes municipal code violations on behalf of a city, even where the prosecutions and defenses are entirely independent and unrelated.
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
The committee was asked whether a lawyer in a firm could defend a client charged with environmental violations while other lawyers in the same firm prosecuted municipal code violations for various cities on contract, where the prosecuting and defending agencies were independent, the matters were in different courts under separate statutes, and the defense would have no effect on the firm's ability to prosecute. The committee declined the invitation to alter its longstanding rule.
The committee traced its precedents from Opinion 242 (1957), which relied on ABA Opinion 30 to hold that neither a city attorney nor office associates could ethically defend persons in criminal actions, and Opinion 276, which stated that the positions of prosecutor and defense attorney are inherently antagonistic. It identified that the California Supreme Court adopted this position in People v. Rhodes, declaring as a judicially declared rule of criminal procedure that a city attorney with prosecutorial responsibilities may not defend or assist in defending persons accused of crime. The committee identified the two Rhodes rationales: practical considerations bearing on the quality of the defense and on the city attorney's ability to discharge prosecutorial responsibilities, and the need for public confidence in the integrity and impartiality of the criminal justice system, not undermined even by the appearance of impropriety.
The committee identified that, taken together, these precedents do not permit the contemplated conduct, and that an ethical violation is not avoided merely because the criminal defense is undertaken by a partner or associate rather than the city attorney, the action is brought by a different entity, the police or enforcing entity differs, or the criminal action arises under a provision the city attorney does not prosecute. It identified that the inquiry's assertion that the defense would have no effect on the prosecutor's zeal does not compel a different result, because identifying such effects is a matter for the profession, not the inquirers, to assume. The committee distinguished Montgomery v. Superior Court and People v. Pendleton and noted that Government Code section 41805 did not authorize the representation because it applies only where the city attorney has been expressly relieved of all prosecutorial responsibilities. It noted it is not bound by opinions of the ABA or other state bars but is bound by Rhodes.
Currency note
This opinion was issued in 1989, before California's November 1, 2018 adoption of the renumbered Rules of Professional Conduct, and was issued under both the old and new (May 27, 1989) rule numbering, which the committee noted produced the same result. The conflict principle corresponds to current Rules 1.7 and 1.11. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.
Common questions
Q: Can a firm that prosecutes for a city also defend criminal cases?
A: Per the opinion, no. The committee reaffirmed that a firm prosecuting municipal code violations for a city may not represent criminal defendants, even in unrelated matters.
Q: Does it matter that the prosecutions and defenses are entirely separate and in different courts?
A: Per the opinion, no. The committee identified that the conflict is not avoided by the matters being unrelated, in different courts, brought by different entities, or under provisions the city attorney does not prosecute.
Q: Does it help that the lawyer doing the defense is a partner, not the city attorney personally?
A: Per the opinion, no. Relying on Rhodes and its own Opinions 242 and 276, the committee identified the conflict as imputed to partners and associates of the city attorney.
Background and rules framework
The opinion applies the conflict-of-interest principle (former Rule 3-310, corresponding to ABA Model Rule 1.7) to the special context of a government prosecutor, an area addressed by Model Rule 1.11. The analysis rests primarily on the California Supreme Court's decision in People v. Rhodes and the committee's prior Opinions 242 and 276.
Citations and references
Rules of Professional Conduct (former):
- California Rule 3-310 (avoiding adverse and conflicting interests)
Statutes:
- California Government Code section 41805
Cases:
- People v. Rhodes, 12 Cal.3d 180 (1974)
- People v. Pendleton, 25 Cal.3d 371 (1979)
- Montgomery v. Superior Court, 46 Cal.App.3d 657 (1975)
Other opinions cited:
- LACBA Formal Opinions 242, 276; LACBA Informal Opinion 1975-4
- ABA Opinion 30; ABA Informal Opinions 1045, 1285; Colorado, Florida (63-24), and Illinois (364) bar opinions
See also
- LACBA Ethics Op. 533: Joint Representation Under Rule 1.7(d) and Three Exceptions
- LACBA Ethics Op. 459: County Counsel Conflict in Juvenile Dependency Proceedings
- LACBA Ethics Op. 501: Conflicts of Interest in Changing Law Firms
Source
- Landing page: https://lacba.org/?pg=ethics-opinions
- Original PDF: https://lacba.org/docDownload/2010998