Could a Minnesota city or municipal attorney defend criminal cases?
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This page answers the general question as of 1974. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The opinion addressed whether a lawyer serving as a city or municipal attorney could also take criminal defense work. It concluded that it was improper for a city or municipal attorney to accept the defense of a criminal case arising within the limits of the city or municipality the attorney served.
The opinion treated defense work outside that city or municipality differently. It concluded that such work was not improper, provided the attorney was not required to challenge the validity of a state statute the attorney would otherwise be required to support while acting as a prosecutor, and provided there was no other actual conflict of interest. If such a challenge or conflict arose, the opinion directed the attorney to withdraw from the case.
The opinion also stated that defense counsel who was also a city or municipal attorney was to refrain scrupulously from any reference to that position during the proceedings.
Currency note
The Board flagged this opinion as Repealed effective January 26, 2006; it is retained here for historical research only.
This opinion was issued in 1974, before the Minnesota Supreme Court's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Could a city attorney defend a criminal case in the city served?
A: No. The opinion concluded it was improper for a city or municipal attorney to accept the defense of a criminal case arising within the limits of the city or municipality served.
Q: Could the attorney defend criminal cases in other areas?
A: Yes, but only if doing so did not require challenging a state statute the attorney would otherwise support as a prosecutor and there was no other actual conflict of interest. If such a challenge or conflict arose, the attorney was to withdraw.
Q: Did the opinion limit how such defense counsel could present themselves?
A: Yes. The opinion stated that a defense counsel who was also a city or municipal attorney was to refrain scrupulously from any reference to that position during the proceedings.
Background and rules framework
The opinion was adopted in 1974, before Minnesota adopted its Rules of Professional Conduct (1985), and applied the professional-conduct standards then in force. It addressed conflict-of-interest concerns for a public prosecutor who also undertook criminal defense work. The opinion did not cite a numbered rule. It is a companion to Opinion 2, which addressed the same question for county attorneys.
Citations and references
Rules of Professional Conduct:
- The opinion predates Minnesota's numbered Rules of Professional Conduct and cites no rule by number.
See also
- Minnesota LPRB Ethics Op. 2: County Attorney as Defense Counsel
- Alabama Ethics Op. 2000-03: Former City Attorney Adverse to the City
- ABA Ethics Op. 97-405: Conflicts in Representing Government Entities
Source
- Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
- Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2024/10/Opinion-6_compressed.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
LAWYERS PROFESSIONAL RESPONSIBILITY BOARD
Repealed: January 26, 2006
OPINION NO 6
DEFENSE OF CRIMINAL CASES BY MUNICIPAL ATTORNEYS
It is improper for a city or municipal attorney to accept the defense of a criminal case arising
within the limits of the city or municipality which he serves. It is not improper for a city or
municipal attorney to accept the defense of criminal cases in other areas provided he is not
required to challenge the validity of a state statute which he would otherwise be required to
support while acting in his capacity as a prosecutor, and provided there is no other actual conflict
of interest. If such a challenge or conflict arises, he should withdraw from the case.
In any event, defense counsel who is also a city or municipal attorney shall scrupulously refrain
from any reference to his position as a city or municipal attorney in the course of all proceedings.
Adopted: June 26, 1974.
Repealed: January 26, 2006.
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