Can a law partner of a part-time county prosecutor serve as special master, or as appointed defense counsel, in civil commitment (mental treatment) hearings?

Plain-English summary

A firm member served as county prosecuting attorney. A chancellor had appointed a member of the bar as special master to preside over civil commitment hearings under Mississippi Code sections 41-21-61 et seq., and that special master had in the past appointed members of the same firm to represent persons alleged to need mental treatment. The firm asked whether accepting such appointments, or having a firm member serve as special master, would violate the Rules of Professional Conduct.

The opinion made the answer turn on whether the county attorney participates in these hearings. After consulting several chancellors, the Committee found the county attorney often does not participate, and found no statutory mandate requiring his participation in the Mississippi Code. It therefore framed the issue as a conflict-of-interest question under Rules 1.7 and 1.10.

If the county attorney represents the public in commitment cases, then a direct conflict would arise if his law partner represented the person alleged to need treatment. The opinion analogized to Ethics Opinion 87, where a city prosecutor's partner is barred from defending a person charged in Municipal Court even when the case is transferred before any involvement by the city prosecutor. The opinion concluded that if the county attorney is involved in the proceedings, no member of his firm may serve as either appointed defense counsel or as special master to hear the case.

In practice

Under this opinion, the participation of the part-time county prosecutor is the dividing line. Where he takes part in commitment proceedings, Rules 1.7 and 1.10 disqualify his firm members from serving either as appointed counsel for the respondent or as the special master hearing the case, because the prosecutor represents the public against the very person his partner would defend or judge. Where the county attorney does not participate (as the Committee found is often the case), the opinion identifies no conflict.

Common questions

Q: Can a county prosecutor's partner be appointed to defend someone in a commitment hearing?

A: Per this opinion, not if the county prosecutor participates in those proceedings; Rules 1.7 and 1.10 would create a direct conflict for the firm.

Q: Can a firm member serve as special master in those hearings?

A: The opinion concludes that if the county attorney is involved, no firm member may serve as special master either.

Q: What if the county prosecutor does not take part in the hearings?

A: The opinion finds no conflict in that situation, noting the county attorney often does not participate and is not required by statute to do so.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.7 (concurrent conflicts of interest, the analog of Model Rule 1.7) and Rule 1.10 (imputed disqualification, Model Rule 1.10), against the backdrop of the civil commitment procedure in Mississippi Code sections 41-21-61 et seq. It draws its rule from prior Ethics Opinion 87 on a city prosecutor's partner defending a municipal-court defendant.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / Mississippi Rule 1.7: concurrent conflicts of interest.
• Model Rule 1.10 / Mississippi Rule 1.10: imputed disqualification of the firm.

Statutes:

• Mississippi Code sections 41-21-61 et seq. (civil commitment / need for mental treatment).

Other opinions cited:

• Mississippi Ethics Opinion 87: a city prosecutor's partner may not defend a person charged in Municipal Court, even when the case is transferred before the city prosecutor's involvement.

See also

• MS Bar Ethics Op. 126: Firm for Both City and County
• MS Bar Ethics Op. 142: Special Prosecutor Conflict
• MS Bar Ethics Op. 169: Lawyer on Civil Service Board

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/120/
• Original PDF: https://www.msbar.org/media/1028/et_op_120-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 120

OF THE MISSISSIPPI BAR

RENDERED June 05, 1986

AMENDED April 06, 2013

CONFLICT OF INTEREST - GOVERNMENT ATTORNEY - A member of the law firm of which the part-time county prosecuting attorney is also a member may not serve as either special master or appointive counsel in hearings on the question of need of mental treatment if the county attorney participates.

The Ethics Committee of The Mississippi Bar has been asked to render an opinion on the following facts:

A member of this firm serves as county prosecuting attorney in this county. The Chancellor has appointed a member of the Bar to preside as a special master in hearings held pursuant to Mississippi Code sections 41-21-61 et seq. The special master has in the past appointed members of this firm to represent persons alleged to be in need of mental treatment.

In the opinion of the Ethics Committee does the acceptance of such appointment constitute a violation of the Mississippi Rules of Professional Conduct (MRPC)? Additionally, will the appointment of a member of this firm as special master constitute a violation of the Mississippi Rules of Professional Conduct?

The question turns on whether or not the county attorney participates in these hearings. Having discussed this matter with several chancellors, we find that often the county attorney does not participate and that the court believes it has no authority to require that participation. Even though we do not advise as to legal matters, there is no reference to any authority or mandate to the county attorney in these matters nor do we find any in the Mississippi Code. Therefore, it becomes a question of conflict of interest under the Rules 1.7 and 1.10, MRPC.

If the county attorney represents the public in commitment cases, then there would be a direct conflict of interest if his law partner represented the person alleged to be in need of mental treatment. It would be no different than Ethics Opinion 87 where a city prosecutor's partner is prohibited from defending a person charged in Municipal Court even though the case is transferred prior to any involvement by city prosecutor.

If the county attorney is involved in the proceedings, then no member of his firm would be eligible to serve either as appointed counsel for the defense or as special master in chancery to hear the case.