Can one lawyer work as a city prosecutor and a county public defender at the same time when the jurisdictions overlap?

Plain-English summary

A county public defender accepted a position as city attorney for a city within the county, where most of the county's population lived. The committee was asked whether the lawyer could continue defending criminal cases in the county while prosecuting for the city.

The committee answered no. It found the arrangement created a conflict of the type addressed by Rule 1.7, because a criminal defendant's interests are, almost by definition, adverse to the interests of the local law-enforcement authority. Although a Rule 1.7 conflict can sometimes be cured when the lawyer reasonably believes the representation will not be adversely affected and each client consents, the committee concluded that here the lawyer could not reasonably hold that belief, so client consent was irrelevant. It applied the Model Rule Comment standard that when a disinterested lawyer would conclude the client should not agree to the representation, the lawyer cannot properly ask for consent.

The committee supported its conclusion with the 1992 ABA Standards for Criminal Justice, Standard 3-1.3(b), which provides that a prosecutor should not represent a defendant in a jurisdiction where the lawyer also serves as a prosecutor (noting the standards were advisory, not adopted in Montana), and with its earlier Ethics Opinion 881130, which warned that combining public prosecution duties with criminal defense placed a lawyer in a position adverse to the public employer and risked public confidence. Because the committee's opinions are advisory, it framed the conduct as "likely unethical" rather than flatly prohibited.

Currency note

This opinion was issued in 2001, before the State Bar of Montana's adoption of the 2004 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 Treat this page as historical context, not current guidance.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 the lawyer prosecute for the city and defend in the county at the same time?

A: No. The opinion concluded the overlapping prosecution and defense roles created a Rule 1.7 conflict and that the lawyer could not continue both.

Q: Could the clients consent to the arrangement?

A: No. The opinion reasoned that because a disinterested lawyer would conclude the client should not agree, the lawyer could not properly seek consent, so consent was irrelevant.

Q: What authority did the committee rely on?

A: The opinion cited Rule 1.7, the 1992 ABA Standards for Criminal Justice (Standard 3-1.3(b)), and its earlier Ethics Opinion 881130, which warned against combining public prosecution and criminal defense roles.

Background and rules framework

The opinion interpreted the then-current Montana version of Rule 1.7 (Conflict of Interest: General Rule; Model Rule 1.7), which barred representation directly adverse to another client, or materially limited by the lawyer's responsibilities to others, absent the lawyer's reasonable belief of no adverse effect and client consent after consultation. It applied the Model Rule Comment standard governing when a conflict is non-consentable.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 1.7(a), 1.7(b) (conflict of interest; general rule) / Model Rule 1.7

Other authority cited:

• ABA Standards for Criminal Justice, Standard 3-1.3(b) (1992) (prosecutor should not defend in a jurisdiction where also a prosecutor)

Other opinions cited:

• State Bar of Montana Ethics Opinion 881130 (combining public prosecution and criminal defense roles)

See also

• State Bar of Montana Ethics Op. 880211: Civil Representation and Prosecution
• State Bar of Montana Ethics Op. 940202: Government Attorney and the Government Client
• State Bar of Montana Ethics Op. 890720: Public and Private Representation in Unrelated Matters

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/010417%20defending%20and%20prosecuting.pdf

Original opinion text

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

ETHICS OPINION

FACTS: A county public defender recently accepted a job as city attorney for a city located within the county. The bulk of the county's population resides within the city's jurisdiction.

QUESTION PRESENTED: May the county public defender continue to defend within the county while also criminally prosecuting on behalf of the city?

ANSWER: No.

DISCUSSION: An attorney may not simultaneously occupy the positions of a city attorney with prosecutorial functions and county public defender when the jurisdictions overlap. The proposed representation creates a conflict of interest of the type identified by Rule 1.7 of the Montana Rules of Professional Conduct.

Rule 1.7 provides:

RULE 1.7 Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibility to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

A criminal defendant's interests are, almost by definition, adverse to the interests of the political subdivision's (i.e., cities, towns and counties) law enforcement authority.

Rule 1.7 conflicts may be overcome if two conditions are met: (1) the attorney reasonably believes that the representation of each client will not be adversely affected, and (2) each client consents. In some situations, however, an attorney can not "reasonably believe" that the dual representation would not be "adversely affected." In such cases, it is irrelevant whether the clients' consent can be obtained; the representation is not permitted.

The Model Rule Comment 5 to Rule 1.7 sets forth the standard for determining whether it is proper to obtain a client's consent to otherwise impermissible representations: "[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent." Application of this standard to the present facts leads us to believe that client consent is irrelevant and that the conflict cannot be overcome. As our opinions are advisory only, we advise that the proposed conduct is likely unethical, not flatly decide that it is.

The 1992 ABA Standards For Criminal Justice, Standard 3-1.3(b) provides "A prosecutor should not represent a defendant in criminal proceedings in a jurisdiction where he or she is also employed as a prosecutor. While these standards have not been adopted in Montana, they are helpful advisory counsel.

Ethics Opinion 881130 addresses the same general issue presented here and explains:

[F]or the city attorney charged with public duties including the prosecution of crimes to accept employment in defense of one charged with crimes, would appear to place him in [a] position adverse to his public employer likely to destroy public confidence in him as a public officer and thus bring reproach to his profession, as well as to himself. This apparent conflict of interest should be avoided.

This Committee agrees.

CONCLUSION: An attorney may not simultaneously occupy the positions of a city attorney with prosecutorial functions and county public defender when the jurisdictions overlap.

THIS OPINION IS ADVISORY ONLY