May a part-time assistant district attorney (or his private firm) represent a town or taxpayer in a tax abatement appeal heard by the county commissioners?

Plain-English summary

A part-time assistant district attorney was also employed by a private firm whose clients included several local towns. The district attorney's office represents the county by statute, and occasionally a town and the county are on opposite sides of a matter. The Commission was asked whether a conflict arose if the assistant kept entirely clear of such matters, and whether it mattered if the firm was on retainer for the town or hired case by case.

The Commission started from the statutes. Assistant district attorneys are appointed to "assist the district attorney in the ordinary duties of his office" (20 M.R.S.A. section 554-A) and have no independent statutory duties; the district attorney must appear for the county in civil proceedings in which the county is a party or interested, or in which the commissioners' official acts are questioned (30 M.R.S.A. section 501). Because assistants must do whatever the district attorney is required to do, the Commission found it inescapable that all assistants represent all counties in the district, regardless of how office duties are divided. So part-time assistants (and their partners) may not represent any party opposing the county or the commissioners in the proceedings described in Section 501.

The Commission then refined the analysis for tax abatements, which are not literally town-versus-county litigation. In an abatement, the opposing parties are the taxpayer and the town, both before the county commissioners and on review; the commissioners are not even a proper party to Superior Court review (citing Shawmut Inn v. Town of Kennebunkport and Assessors, Town of Bristol v. Eldridge) and function as a quasi-judicial appellate tribunal under 36 M.R.S.A. section 844. Although the district attorney would not represent the county on appeal, his office may still participate by advising the commissioners on the legal aspects of an abatement and helping them conduct a hearing, where the office owes the commissioners independent judgment. The same attorney cannot both advise the commissioners and represent a party before them. The Commission concluded it would likewise be improper for a part-time assistant to represent a town or taxpayer before the commissioners in an abatement appeal even if he had nothing to do with the case as assistant district attorney. Although the vicarious-disqualification rule (3.4(k)) does not apply to common employment in a government agency, the assistant always represents the county; representing the commissioners, Rules 3.4(b) and (c) bar the assistant from representing a party before them, and if the assistant may not, neither may any member of his firm (Rule 3.4(k)).

Currency note

This opinion was issued in 1984, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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, deadline, or requirement mentioned here.

Common questions

Q: Does a part-time assistant DA represent the county even for matters he never touches?

A: The opinion concluded yes. Because an assistant's sole function is to assist the district attorney, who represents the county, every assistant always represents the county regardless of how office duties are divided.

Q: Can the assistant's private firm represent a town opposing the county?

A: The opinion concluded no. If the assistant may not oppose the county or appear before the commissioners, neither may any member of his firm, under Rule 3.4(k).

Q: Why does the abatement context matter?

A: The opinion explained that in an abatement the county commissioners sit as a quasi-judicial tribunal; the district attorney's office may advise them, so an assistant cannot represent a party appearing before them under Rules 3.4(b) and (c).

Q: Does screening the assistant from the case cure the problem?

A: The opinion concluded it does not. The assistant always represents the county, and the firm-wide bar applies even if he personally had nothing to do with the matter.

Background and rules framework

The opinion interprets former Maine Bar Rules 3.4(b) and 3.4(c) (declining or withdrawing from employment that involves differing interests) and 3.4(k) (vicarious disqualification), noting that 3.4(k) does not apply to common government employment. These correspond to ABA Model Rule 1.7 (conflicts of interest), Model Rule 1.10 (imputation), and Model Rule 1.11 (government officers and employees). The opinion applies the Maine prosecutor statutes 20 M.R.S.A. section 554-A and 30 M.R.S.A. section 501, and the tax-abatement provision 36 M.R.S.A. section 844.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 (conflicts); Model Rule 1.10 (imputation); Model Rule 1.11 (government officers and employees)
• Maine Bar Rules 3.4(b), 3.4(c), 3.4(k)

Statutes:

• 20 M.R.S.A. section 554-A (appointment and duties of assistant district attorneys)
• 30 M.R.S.A. section 501 (district attorney to appear for the county)
• 36 M.R.S.A. section 844 (county commissioners hearing tax abatements)

Cases:

• Shawmut Inn v. Town of Kennebunkport, 428 A.2d 384 (Me. 1981), county commissioners not a proper party to review of their abatement decision
• Assessors, Town of Bristol v. Eldridge, 392 A.2d 37 (Me. 1978), abatement-review procedure

See also

• Maine Ethics Op. 52: City Solicitor's Board Partners
• Maine Ethics Op. 65: Defending Against an In-Law DA
• Maine Ethics Op. 73: Lawyer-Councilor Conflicts

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=90983

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: May 10, 1984

Opinion

The Grievance Commission has been asked the following questions:

A part-time assistant district attorney is also employed by a private law firm that has as clients a number of local towns. The district attorney's office is required by statute to represent that county. Occasionally, in matters such as tax appeals there is litigation involving a town on one side and the county on the other. If the particular assistant district attorney does not involve himself in any of these matters, either for the district attorney's office or for his private firm, is there a conflict of interest problem? What if the assistant district attorney refrains completely from representing the county? What if the assistant district attorney refrains from any personal representation of towns for his private firm? Does it make a difference if the law firm is on retainer for the town or whether he is hired on a case by case basis as part of a continuing relationship?

Assistant district attorneys are appointed by the district attorney to serve at his pleasure. They are directed to "assist the district attorney in the ordinary duties of his office." (20 M.R.S.A. section 554-A.)

Among other duties, the district attorney is required to "appear for each county within the district for which he was elected, under the direction of the county commissioners for each county within such district, in all actions and other civil proceedings in which any county within such district is a party or interested, or in which the official acts and doings of said county commissioners are called in question, in all the courts of the State, and in such actions and proceedings before any other tribunal when requested by said commissioners." (30 M.R.S.A. section 501)

Assistant district attorneys have no independent statutory duties; whatever the district attorney is required to do they may be required to and must do in the absence of their employer. Hence, it seems inescapable that all assistants represent all the counties in the district regardless of how duties of the office may be divided. Part-time assistants therefore may not represent any party opposing the county or the county commissioners in any of the proceedings described in Section 501. If they may not do so, neither may their partners. If a town client of the assistant's firm is opposed to the county in a litigated matter, the firm is disqualified and may not appear for the town.

This analysis does not alone answer the question, however, since "tax appeals" are not really "litigation involving a town on one side and the county on the other." If the question refers to abatement proceedings, as we assume, the opposing parties appear to be the taxpayer applying for abatement and the town, both before the county commissioners and in subsequent proceedings. The county commissioners are not even a proper party to any Superior Court review of their decision. Shawmut Inn v. Town of Kennebunkport, 428 A.2d 384, 388 (1981); Assessors, Town of Bristol v. Eldridge, 392 A.2d 37, 39-40 (Me. 1978). They function as a quasi-judicial appellate tribunal. 36 M.R.S.A. section 844.

Although the district attorney would not represent the county on appeal in such cases (since the county is not a party) it does not follow that his office will not participate at some stage as attorney for the commissioners. The district attorney's office may advise the commissioners about legal aspects of an abatement and even help them conduct a hearing. When that happens the district attorney is under a professional obligation to provide independent judgment to the commissioners. Clearly the same attorney may not both advise the commissioners and represent one of the parties to a proceeding in which the commission acts as decision maker.

We conclude it would likewise be improper for a part-time assistant district attorney to represent a town (or taxpayer) before the county commissioners in an abatement appeal even if he had nothing to do with the case in his capacity as assistant district attorney. Although the vicarious disqualification rule [3.4(k)] does not apply to common employment in a government agency, an assistant district attorney's sole function is to assist the district attorney in performing the duties of the district attorney's office. Thus necessarily he or she always represents the county. Representing the county commissioners, Rule 3.4(b) and (c) bar the assistant from representing a party appearing before them as a quasi-judicial body hearing abatement appeals. If the assistant may not represent a party appearing before the county commissioners, neither may any member of the assistant's firm. [Rule 3.4(k)]