Can a lawyer who serves on the city council and its police commission defend criminal cases in that city's court, and can resigning a seat cure the conflict?

Plain-English summary

The requesting attorney was elected to a city council and appointed to its Police Commission, which recommends police salaries and staffing to the full council (the council also appoints the city attorney and police chief, approves the police budget, and is the final step in officer grievances). A large part of the lawyer's practice is criminal defense, and he does not appear in city court. He asked whether he could defend criminal cases in three situations: city cases transferred to district court prosecuted by the State's Attorney; city cases transferred to district court prosecuted by the City Attorney; and non-city cases in district court where a city police officer may testify. He also asked whether any resulting conflict could be cured by resigning from the Police Commission alone or required leaving the entire council.

The committee found the conflict did not stem from representing the city directly, but from the lawyer's obligations to the city as a council and commission member, his own interest in re-election, and the risk that a client or victim could perceive his office as a means to influence officer testimony. On city cases moved to district court, it concluded the duties and loyalty owed by an elected city official will adversely affect his duties as defense counsel, that this is not a waivable conflict, and that it makes no difference whether the State's Attorney or City Attorney prosecutes (the council adopts and is responsible for enforcing the ordinances, and the cases have a financial impact on the city). To defend such cases, the lawyer must resign from the council.

For non-city cases in which a city officer may testify, the committee distinguished two situations. If the lawyer gained confidential information about the officer through his council or commission duties that could be used against the officer's testimony, the conflict cannot be waived and the lawyer must not represent the defendant (Rule 1.7(a)). Otherwise, the lawyer must judge whether his relationship with the police department will cause him to hold back on cross-examination; if he believes it will affect the representation he must decline, and he may proceed only if he reasonably believes the representation will not be adversely affected and both the city and the client consent. The committee added that, separately, the lawyer's own interest in re-election is for the lawyer alone to assess on the same prohibited/waivable framework, and that under Rule 8.4 he must never state or imply an ability to improperly influence an officer's testimony; perceived prejudice to the administration of justice under Rule 8.4(d) can be resolved by obtaining the consent of the city governing board.

In practice

This opinion applies the version of North Dakota's Rules of Professional Conduct in force in 2005, which North Dakota materially revised effective August 1, 2006; the analysis reflects the earlier rule. Under that rule, the committee held that a lawyer who sits on a city council holds a non-waivable conflict that bars defending city cases transferred to district court, regardless of which prosecutor handles them, and that the conflict is curable only by resigning the council seat (not merely the police commission). For non-city cases involving a city-officer witness, the committee held the representation is barred outright if the lawyer holds officer confidences obtained through the council or commission, and otherwise depends on the lawyer's own no-adverse-effect judgment plus the consent of both the city and the client. The committee also held the lawyer must independently assess whether a re-election interest will affect the representation and must never imply an ability to influence an officer's testimony.

Common questions

Q: Can a lawyer on the city council defend a city case that has been moved to district court?

A: No. The committee concluded a sitting council member is prohibited from defending city cases transferred to district court, and that this conflict is not waivable. It said the same result applies whether the State's Attorney or the City Attorney prosecutes the case.

Q: Can the lawyer cure the conflict by resigning only from the police commission?

A: Not for city cases. The committee said defending city cases transferred to district court requires resigning the city council seat itself, not just the commission appointment.

Q: What about a non-city case where a city police officer will testify?

A: It depends. If the lawyer gained confidential information about the officer through council or commission duties that could be used against the officer's testimony, the conflict cannot be waived and the lawyer must not take the case. Otherwise, the lawyer must judge whether the relationship will affect the representation; if it will, he must decline, and he may proceed only if he reasonably believes it will not be adversely affected and both the city and the client consent.

Q: Does the lawyer's interest in re-election create a conflict?

A: It can. The committee said only the lawyer can judge whether a desire for re-election will affect the representation; if it will, he is prohibited from representing the client, and if it merely might, he must disclose the personal interest and obtain the client's waiver.

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.7 (Model Rule 1.7, conflicts of interest, general rule) and 8.4 (Model Rule 8.4, misconduct) as they stood in 2005. The 2005 version of Rule 1.7 the committee applied prohibits representation where the lawyer's ability to act for the client will be adversely affected by responsibilities to a third person or by the lawyer's own interests, and allows representation despite a potential adverse effect only if the lawyer reasonably believes it will not be adversely affected and the client consents after consultation. Rule 8.4 makes it misconduct to state or imply an ability to influence improperly a government official or to engage in conduct prejudicial to the administration of justice. North Dakota revised its Rules of Professional Conduct effective August 1, 2006, so the rule text reflects the earlier version.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / N.D.R. Prof. Conduct 1.7 (conflicts of interest, general rule)
• Model Rule 8.4 / N.D.R. Prof. Conduct 8.4 (misconduct; influencing officials; administration of justice)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Cases:

• People v. Rhodes, 524 P.2d 363 (Cal. 1974) (cited within California Op. 1977-46)

Other opinions cited:

• New York Ethics Op. 692 (1997) (elected official defending city cases)
• California Ethics Op. 1977-46 (citing People v. Rhodes)
• Texas Ethics Op. 497 (1994) (consent of governing board)
• Michigan Ethics Op. RI-292 (1997) (consent of governing board)

See also

• SBAND Ethics Op. 06-05: Imputed Conflict, Partner on the City Council
• AL Ethics Op. 2005-01: City Attorney Conflict
• AL Ethics Op. 1992-22: Councilman's Firm as City Prosecutor

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_05-06.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE

Opinion No. 05-06

The Committee received a request for an opinion asking if the North Dakota Rules
of Professional Conduct prohibit an attorney serving as a city council member and sitting
on its Police Commission from representing criminal defendants in city cases transferred to
ithe District Court when the cases are handled by ihe State’s Attorney. |n addition, the
same request is made concerning city cases transferred to District Court handled by the
City Attorney. Third, would ihe attorney be prohibited from representing defendants in
District Court on non-city charges where an officer of the City Police Department may or

will appear as a witness?

If itis determined that the above situations create a conflict, the requesting attorney
asks whether the conflict can be cured by resignation from the requesting attorney's
position on the Police Commission, or is resignation from the entire City Council

necessary?

FACTS

The requesting attorney was elected as a city council member. The requesting
attorney was also appointed to sit on the Police Commission, which makes
recommendations regarding salaries and the number of police officers to the full City
Council. The Police Commission does not have any direct oversight over the individual
officers. The City Council appoints the city attorney, approves the Police Department
budget and appoints the Police Chief. The Council also has authority to address police
officers’ grievances as the last step in a grievance procedure. Other than this oversight,
the Council does not have direct control or interaction with the officers. A large portion of
the attorney's work involves criminal defense. The requesting attorney does not represent

any defendants in city court.
The following questions are addressed to the committee:

1. If a city case is transferred to District Court and is handled by the State’s
   Attorney, may the requesting attorney act as defense counsel?

2, \facity case is transferred to District Court and is handled by the City Attorney,
who is hired by the Council, may the requesting attorney act as defense

counsel?

3. May the requesting attorney act as defense counsel in cases in District Court
   where an officer of the Police Department (who is cross deputized as a county
   sheriff's officer) may or will appear as a witness?

4, If any of the above three situations results in an impermissible conflict, can that
conflict be cured by the requesting attorney's resignation from the Police
Commission, or is resignation from the entire City Council required?

No prior Ethics Committee Opinions appear to address these issues.
DISCUSSION -

The issue is not one of direct conflict between clients as the requesting attorney is not the
attorney for the city. The potential for conflict comes from the requesting attorney's
obligations to the City as a council member and a member of the council’s Police
Commission. In addition, the attorney's own interest in being re-elected could arguably be
a personal interest which might have an affect on the attorney's representation of a
defendant in a City case. Further, there is the potential for a client or even a victim of a
criminal act to believe that the attorney, as a council member or member of the Police
Commission, can impliedly influence an officer's testimony. Lastly, consideration must be
given to the impact upon the administration of justice related to the attorney acting as
defense counsel and being required to aggressively cross-examine city police officers in
relation to the attorney’s elected position on the city council with responsibility for
overseeing the Police Department budget and grievances. The issues are governed, in
part, by N.D.R. Prof. Conduct 1.7 - Conflict of interest: general rule and N.D.R. Prof.
Conduct 8.4 — Misconduct. Rule 1.7, in pertinent part, states:

(a) A lawyer shall not representa client if the lawyer's ability to consider,
recommend, or carry out a course of action on behalf of the client will
be adversely affected by the lawyer's responsibilities to another client or
to a third person, or by the lawyer's own interests.
(b) A lawyer shall not represent a client when the lawyer’s own
interests are likely to adversely affect the representation.
(c) A lawyer shall not represent a client if the representation of that
client might be adversely affected by the lawyer's responsibilities 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.

Dealing first with the attorney’s own interests, we believe only the attorney can judge
the effect any re-election desire may have upon the representation. In those cases in
which the attorney’s representation will be affected, the attorney is prohibited from

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representing the client. In all other cases it is up to the attorney to determine if the
representation might be affected by re-election desires. If the representation might be
affected by re-election desires, the attorney must advise the client of this personal
interest and obtain a waiver of the potential conflict. lf there is no chance that the
attorney’s personal interest might affect ihe representation, nothing further is required

concerning this area.

The attorney has recognized the conflict in the attorney’s obligations to the City and to
the defense client and refrained from appearing in city court. We believe the same
considerations create a conflict concerning a city case in District Court whether the City
Attorney or State’s Attorney is prosecuting the city case. Ina city case, the prosecutor
is enforcing a city ordinance. The city council is responsible for adopting ordinances
and seeing that they are enforced. In addition, the city cases have a financial impact
upon the city, regarding both income and expense of prosecution. The duties and
loyalty required of an elected city official will adversely affect the attorney's duties as
defense counsel on city cases and is not a waivable conflict. See: NY Eth. Op. 692,
1997 WL 1068495 (N.Y. St. Bar. Assn. Comm. Prof! Eth.); CA Eth. Op. 1977-46, 1977
WL 15964 (Cal. St. Bar. Comm. Prof Resp.) (citing People v. Rhodes, 524 P.2d 363

(Cal. 1974)).

Cases not involving a city charge but in which a city police officer may or will be called
as a witness create a potential conflict arising from the attorney’s position on the City
Council and on the Police Commission. If the attorney has gained confidential
information about the officer which could be used to the detriment of the officer's
testimony and such information was obtained through the attorney’s duties as a city
council member or member of the Police Commission, there is a conflict which can not
be waived and the attorney must not represent the defendant. N.D.R. Prof. Conduct

1.7(a).

in other cases, the attorney's obligation to the client may be affected by a desire to tone
down or hold back on cross-examining a police officer due to the attorney's relationship
with the officer and police department because of the attorney's position on the City
Council or Police Commission. Again, if the attorney believes this will affect the
representation the attorney must not represent the defendant.

The attorney must also recognize that a client or even a member of the public, such as
a victim of a city charge, may view the attorney's position on the city council and police
commission as a position of authority from which the attorney could influence an
officer's testimony. Rule 8.4, N.D.R. Prof'l. Conduct states in part:

It is professional misconduct for a lawyer to:

(c) state or imply an ability to influence improperly a government agency
or official;
(d) engage in conduct that is prejudicial to the administration of justice, ..

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If the attorney does not reasonably believe the attorney’s representation of the client
will be adversely affected by the attorney’s duties or position on the City Council or
Police Commission, the attorney must also assure that nothing is said or implied about
the ability to influence an officer’s testimony.

The Committee recognizes that the conduct of the attorney-city council member, in
representing a defendant and examining a city police officer, may well create an
impression that the attorney can improperly affect the administration of justice.
Conduct perceived to be prejudicial to the administration of justice under N.D.R. Prof.
Conduct 8.4(d) can be resolved by obtaining the consent of the city governing board
allowing the attorney to represent the defendant under these circumstances. TX Eth.
Op 497, 1994 WL 417012 (Tex. Prof'l Eth. Comm.); MI Eth. Op. Rl-292, 1997 WL

452261 (Mich. Prof’ Jud. Eth.)

Conclusion

We believe an attorney sitting on the city council is prohibited from acting as defense
counsel on city cases transferred to District Court regardless of whether they are
prosecuted by the State’s Attorney or the City Attorney. To defend such cases, the
attorney must resign the position as a city council member. In defending cases in
which a city police officer may or will appear we believe the attorney must decide if the
representation will be affected by the attorney's obligations as a city council member. If
so, the attorney can not proceed with representing the defendant. If the defense
representation might be adversely impacted, the attorney may proceed with the
representation if the attorney reasonably believes the actual representation will not be
adversely affected and the city and client consent.

This opinion is provided pursuant to Rule 1.2 (B) of the North Dakota Rules for Lawyer
Discipline. This rule states:

A lawyer who acts with good faith and reasonable reliance on
a written opinion or advisory letter of the ethics committee of the
association is not subject to sanction for violation of the North Dakota
Rules of Professional Conduct as to the conduct that is the subject of
the opinion or advisory letter.

This opinion was drafted by Kent Reierson and adopted by unanimous vote on

December 21, 2005.

/Mark Hanson, Chair