Can a lawyer serve as a city's special prosecutor on DUI appeals while also defending other clients on DUI appeals from that same city court?

Plain-English summary

A city faced a backlog of DUI appeals (tried de novo in county court) and authorized hiring extra lawyers as special prosecutors to clear the docket. Lawyer B wanted to take one of those special-prosecutor positions, but B already represented at least one client whose DUI conviction was on appeal from that same city court. The city prosecutor agreed not to set any of B's own appeals for trial while B served. The Committee was asked whether B could accept the special-prosecutor work.

The opinion concluded that B could not. Drawing on prior Opinions No. 63 (1981) and No. 116 (1986), the Committee reasoned that a lawyer who prosecutes for a municipality may not represent criminal defendants whose charges originated with and were pursued by that city's law enforcement. The opinion treated the special prosecutor as accepting the same duties, and therefore the same restrictions, as the official city attorney. Because the cases B would prosecute arose within the same municipality, were investigated by the same city police, and were first decided in the same City Court as the cases B was simultaneously defending on appeal, the Committee found a "clear and forbidden conflict of interest."

The arrangement to keep B's own appeals off the trial calendar during the service period did not cure the conflict.

Currency note

This opinion was rendered in 1988, before The Mississippi Bar adopted the Mississippi Rules of Professional Conduct (effective June 22, 1994, later amended February 5, 1999). It analyzes the conflict through prior ethics opinions rather than a numbered rule. Subsequent rule adoptions and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Mississippi Rules of Professional Conduct before relying on any specific requirement mentioned here.

Common questions

Q: Can a part-time or special city prosecutor also defend criminal cases?

A: Per this opinion, not where the defense cases arose in, were investigated by, and were first prosecuted in the same city the lawyer prosecutes for. The opinion treats a special prosecutor as carrying the same conflict restrictions as the regular city attorney.

Q: Does it matter that the lawyer's own appeals would not be tried during the prosecution stint?

A: No. The opinion found the conflict forbidden despite the city prosecutor's agreement not to set the lawyer's appeals for trial during that period.

Q: What earlier Mississippi opinions did the Committee rely on?

A: Opinion No. 63 (1981) and Opinion No. 116 (1986), which barred a municipal lawyer from representing defendants whose charges originated with the city's law enforcement, plus Opinion No. 103 (1985) on a firm prosecuting a claim against its own corporate client.

Background and rules framework

The opinion predates Mississippi's numbered Rules of Professional Conduct and cites no rule number. The concern it addresses, a lawyer holding directly adverse roles in related matters, is the subject now governed by Mississippi Rule of Professional Conduct 1.7 (the analog of Model Rule 1.7 on concurrent conflicts of interest). The Committee resolved the question entirely through its own prior opinions rather than rule text.

Citations and references

Rules of Professional Conduct:

• The opinion cited no numbered rule (it predates the 1994 Mississippi Rules of Professional Conduct). The conduct it addresses is now governed by the conflict-of-interest principle of Model Rule 1.7 / Mississippi Rule 1.7.

Other opinions cited:

• Mississippi Ethics Opinion No. 63 (1981): a lawyer representing a municipality may not represent a defendant whose charges originated with the city's law enforcement.
• Mississippi Ethics Opinion No. 116 (1986): a city attorney may defend in county/circuit court only where charges are solely state-law violations with no city involvement.
• Mississippi Ethics Opinion No. 103 (1985): a firm representing a corporate client may not simultaneously prosecute an unrelated claim against that corporation.

See also

• MS Bar Ethics Op. 169: Lawyer on Civil Service Board
• MS Bar Ethics Op. 170: Former Judge in Pardon Case
• MS Bar Ethics Op. 226: Former Chancellor as Counsel

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/142/
• Original PDF: https://www.msbar.org/media/1431/35a_et_op_142.pdf

Original opinion text

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

ETHICS OPINION NO. 142

OF THE MISSISSIPPI BAR

RENDERED March 11, 1988

CONFLICT OF INTEREST: An attorney may not act as special appeals prosecutor for a city while simultaneously representing criminal defendants on appeals from the city court.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion concerning the following situation:

City A is the prosecutor for the crime of driving under the influence within the city limits. Due to the penalty imposed on conviction, there has been a tremendous increase in the number of appeals from the City Court to the County Court. The City Prosecutor of City A is unable to handle the large number of appeals which require trials de novo. City A has authorized the employment of additional attorneys to act as special prosecutors to prosecute these appeals and relieve the crowded appeals docket.

Lawyer B would like to accept employment as one of the special prosecutors for City A. However, Lawyer B presently represents at least one client whose DUI conviction is on appeal from the A City Court to the County Court. The regular city prosecutor has agreed that none of Lawyer B's appeals would be set for trial during the time Lawyer B would be serving as a special prosecutor.

Under the circumstances, may Lawyer B accept employment as a special prosecutor for City A?

In Ethics Opinion No. 63 (1981) it was held that a lawyer who represents a municipality may not represent or be appointed to represent a criminal defendant where the charges against the client originated and were pursued by the law enforcement agencies of the city. This opinion was reaffirmed in Opinion No. 116 (1986), which held that a city attorney could represent criminal defendants in the county and circuit courts only where the charges were solely for violations of state law, no city police officers were involved, and the city was not otherwise involved, directly or indirectly. See, also, Opinion No. 103 (1985) (An attorney whose firmrepresents a corporate client in pending litigation may not simultaneously accept employment to prosecute a claim against the corporation in an unrelated matter.)

While not the "official" municipal attorney, by accepting the proffered employment Attorney B accepts the same duties, and therefore, the same restrictions. Since the charges to be prosecuted by Attorney B as special prosecutor arose within the municipality, were investigated by city police offices, and were initially prosecuted and decided in the City Court of City A, as were the cases that Attorney B is simultaneously defending on appeal, it would be a clear and forbidden conflict of interest for Attorney B to accept employment as a special prosecutor for City A in the same county court.