Can a firm that represents a city in civil matters also take a contract to defend indigent defendants the city is prosecuting?

Plain-English summary

The requesting attorney's firm had served as a city's city attorney for many years until, about two years earlier, one of its lawyers left, opened his own firm, and became the city attorney. The firm still represented the city on civil matters, including litigation, through contracts with the new city attorney. The firm was asked to become contract indigent-defense counsel for the city, and it asked whether the conflict rules barred it from defending indigents in city criminal prosecutions while still representing the city civilly.

The committee answered yes, there are impermissible conflicts. It treated the city as a current client of the firm despite the contract running through the appointed city attorney. Under Rule 1.7(a) and (b), the firm's ongoing duty of loyalty to the city, its obligation not to take positions antagonistic to the city's enforcement of its laws, the firm's financial interest in keeping both the city contract and the indigent-defense contract, and the city attorney's statutory duty to recover indigent-defense fees from defendants combine into an inherent, non-waivable conflict. The committee relied on its earlier opinions 05-06, 06-05, and 08-03, which found such government-versus-individual conflicts inherent to the dual role rather than dependent on a particular case, and noted that Comment 9 to Rule 1.7 ordinarily bars a lawyer from acting as advocate against a current client even in an unrelated matter, with a criminal prosecution (followed by possible fee recovery) entailing too high a degree of conflict.

The committee gave a second, independent basis under Rule 1.10: the contract through which the firm provides legal services to the city associates the firm with the appointed city attorney so that they are treated as a single firm for imputation. Because the appointed city attorney could not concurrently represent the city and a party adverse to it, that disqualifying conflict is imputed to all the firm's lawyers, and an imputed conflict of this kind cannot be waived by clients. The committee added that the appearance of impropriety, assessed from an ordinary citizen's perspective, also supported its conclusion.

In practice

This 2009 opinion applies North Dakota Rules of Professional Conduct 1.7 and 1.10. Under those rules, the committee held that a firm representing a city in civil matters (including through a contract with the appointed city attorney) cannot also serve as the city's contract indigent-defense counsel, because the role pits the firm's duty of loyalty to the city against its duty to defend indigents the city is prosecuting, an inherent and non-waivable conflict under Rule 1.7(a) and (b). The committee held the conflict is independently imputed to the whole firm under Rule 1.10, since the service contract associates the firm with the appointed city attorney as a single firm, and that imputed conflicts of this kind cannot be waived by clients.

Common questions

Q: Can a city's civil lawyers also be its indigent-defense lawyers?

A: No. The committee concluded the same firm cannot represent the city civilly while defending indigents the city is prosecuting, because the dual role is an inherent conflict under Rule 1.7(a) and (b).

Q: Does it matter that the firm's city work comes through a contract with the city attorney, not a direct appointment?

A: No. The committee said the city is still the firm's client, and that the service contract associates the firm with the appointed city attorney as one firm under Rule 1.10, so the city attorney's disqualifying conflict is imputed to the whole firm.

Q: Can the city and clients consent to waive the conflict?

A: No. The committee treated it as an inherent, non-waivable conflict, and noted that an imputed conflict arising from an impermissible conflict of interest cannot be waived by clients.

Background and rules framework

The opinion interprets North Dakota Rules of Professional Conduct 1.7 (Model Rule 1.7, conflicts of interest) and 1.10 (Model Rule 1.10, imputed disqualification), reading Rule 1.7's comment on advocating against a current client and Rule 1.10's comments on when associated lawyers form a "firm." It situates the question within a line of North Dakota opinions (05-06, 06-05, 08-03) treating government-versus-individual dual roles as inherently conflicted. The city attorney's duties and the duty to recover indigent-defense costs are set by N.D.C.C. 40-20-01 and N.D.C.C. 29-07-01.1.

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 1.10 / N.D.R. Prof. Conduct 1.10 (imputed disqualification)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• N.D.C.C. 40-20-01 (duties of a city attorney)
• N.D.C.C. 29-07-01.1 (recovery of indigent-defense costs)

Cases:

• Continental Resources, Inc. v. Schmalenberger, 2003 ND 26 (appearance of impropriety; loyalty)

Other opinions cited:

• SBAND Opinion 05-06 (city council member defending city cases)
• SBAND Opinion 06-05 (partner on the city council)
• SBAND Opinion 08-03 (state's attorney as community service coordinator)

See also

• SBAND Ethics Op. 05-06: City Council Member as Criminal Defense Counsel
• SBAND Ethics Op. 06-05: Imputed Conflict, Partner on the City Council
• SBAND Ethics Op. 08-03: Prosecutor as Service Coordinator

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_09-01.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 NUMBER 09-01

The Ethics Committee received a request for an opinion dated October 31, 2008, regarding
whether a law firm that currently represents a city under a contract arrangement with the city
attorney may also enter a contract with the city to defend indigents who face city criminal
prosecution.

ASSUMED FACTS

Requesting attorney’s law firm served as city attorney for the city for many years. That
arrangement ended approximately two years ago when one of the firm’s attorneys left Requesting
Attorney’s law firm, opened his own firm and became the city attorney. Although Requesting
Attorney’s law firm is not now the city attorney, various attorneys from Requesting Attorney’s law
firm have continued to represent city for civil matters, including litigation, through contracts with
the current city attorney. Requesting Attorney's firm does not appear to represent the city in any
criminal matter or civil matter that is related to a criminal case.

Requesting attorney’s firm has been contacted about becoming contract indigent defense
counsel for the city. Requesting attorney is concerned that conflict of interest provisions of the
North Dakota Rules of Professional Conduct preclude the firm from taking on indigent defense
duties under a contract with the city while at the same time representing the city under the firm’s
contracts with the city attorney.

QUESTION

Is there an impermissible conflict of interest that disqualifies the law firm from representing a
city under a contract arrangement with the city attorney and while at the same time performing
indigent defense counsel services under a separate contract with the city?

ANSWER Oo,
Yes, there are impermissible conflicts of interest which preclude requesting attorney's law firm
from representing the city in civil matters, including litigation, and at the same time, representing
indigent clients who are being prosecuted in city court.

DISCUSSION

The request implicates Rules 1.7 and 1.10, N.D.R. Prof. Conduct, relating to conflicts of interest
and imputation of conflicts to all attorneys who are associated with a “firm”. The applicable
provisions of Rule 1.7 are subsections (a) and(b) which state:

(a) A lawyer shall not represent a client if the lawyer’s ability to consider, recommend or
carry out a course of action on behalf of a 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.

The Ethics Committee has three times recently addressed situations with facts similar to those
presented by Requesting Attorney. In Ethics Opinion 05-06 the Committee concluded an

impermissible conflict of interest prevents an attorney who is a member of a city council from
representing criminal defendants in city cases that are transferred to district court. In Ethics
Opinion 06-05 the Committee concluded there is an impermissible conflict of interest that
precludes an attorney from representing criminal defendants in city court when the attorney’s
partner is on the city council. In Ethics Opinion 08-03 the Committee concluded there is an
impermissible conflict of financial and other interests that precludes a states attorney from
functioning in the dual capacity as state’s attorney and as community service coordinator for the
same county. The foundations of Ethics Committee Opinions 05-06 and 06-05 are that there are
impermissible conflicts of interest among the obligations of a city officer/city attorney to serve a
city’s interests in enforcing its ordinances in an economical manner, an attorney’s duties when
defending a client in city court against that enforcement, and related ongoing financial
entanglements between a city or county and a defendant. Each of these opinions (and others as
well) have concluded conflicts arising from attorneys’ efforts to serve government as a client on the
one hand while at the same time representing individuals in matters for which the city is or county
is an adverse party to be inherent to the proposed dual representation, rather than arising from the
unique circumstances of a particular case or a particular defendant. The same applies to the
situation at hand.

The duties of a city attorney are to “conduct all law business in which the city or any of its
departments is interested, N.D.C.C. 40-20-01(1), to furnish written opinions upon all questions
submitted to the city attorney by the city or its departments, N.D.C.C. 40-20-01(2), to draft
ordinances, N.D.C.C. 40-20-01(3), and to keep a detailed, public docket of civil and criminal court
cases to which the city is a party, N.D.C.C. 40-20-01(5). Specifically as it relates to indigent defense
representation, the city attorney also must attempt to recover a city’s cost of defending an indigent
person from that person, “anytime the state's attorney or city attorney determines the person for
whom counsel was appointed may have funds to repay the state or city within six years of the date
such amount was paid on that person's behalf.” N.D.C.C. 29-07-01.1. The collection activity is a civil
matter.

Requesting attorney’s firm has responsibilities to the city because it functioned as city attorney
for many years and because it continues to function as a city attorney for various civil matters; the
city is still a client of the firm, even though that relationship results from the contract between the
firm and the appointed city attorney. As have previous Ethics Committees, the current Committee
considers the clashes from the firm’s ongoing duties of loyalty to the city, its obligation not to take
positions that are antagonistic to the interest of the city in enforcing its laws, the responsibility to
vigorously defend an accused indigent against prosecution by the city, the firm’s interest in its own
finances by continuing as contract provider of legal services to the city and by continuing as
indigent defense counsel, and the obligation of the city attorney to recover indigent defense fees to
be an inherent and impermissible conflicts which are prohibited by Rule 1.7(a) and Rule 1.7(b).

Even though the firm currently represents the city in civil matters through a contract
relationship with the current appointed city attorney, the city is, nonetheless, the firm’s client. As
Comment 9 to Rule 1.7 states, “[o]rdinarily, a lawyer may not act as an advocate against a client the
lawyer represents in some other matter, even if the other matter is wholly unrelated.” The
comment notes there are circumstances under which a single lawyer may advocate against a
consenting client in unrelated lawsuits. However the in the words of the comment, “the propriety
of concurrent representation can depend upon the nature of the litigation. For example, a suit
charging fraud entails conflict to a degree not involved in a suit for declaratory judgment.” A
criminal prosecution after which the city may seek recovery of defense counsel fees from the

defendant entails too high a degree of conflict for the Committee to conclude Rule 1.7 may permit
concurrent representation of the city in civil matters and defendants in city criminal prosecutions.

The contractual relationship between the appointed city attorney and Requesting Attorney’s
firm provides a separate basis upon which to conclude the firm is disqualified from representing
defendants in city criminal prosecutions. Under Rule 1.10 disqualifying conflicts of interest of any
lawyer in a “firm” are imputed to all lawyers in the firm . Under that Rule, the contract under
Requesting Attorney’s firm provides legal services to the city creates an association between the
firm and appointed city attorney under which all parties to the contract are regarded as a single
firm for purposes of imputing disqualifications to all attorneys in the firm. Rule 1.10(a), Comments
2and4. Under previous Ethics Committee Opinions and Rule 1.7, an appointed city attorney
would not be permitted to engage in concurrent representation of the city and an adverse party to
the city, whether in the same or unrelated litigation. Under Rule 1.10 this disqualifying conflict of
the appointed city attorney is imputed to all attorneys in Requesting Attorney’s firm. Rule 1.10 [2]
notes, “ itis relevant in doubtfui cases to consider the underlying purpose of the Rule that is
involved. A group of lawyers could be regarded as a firm for purposes of the Rule that the same
lawyer should not represent opposing parties in litigation, while the same group of lawyers might
not be regarded as a firm for purposes of the rule that information acquired by one lawyer is
attributed to another.” Imputed disqualifications may not be waived by clients when the
disqualification is due to an impermissible conflict of interest. Ethics Committee Opinion 06-05.

Requesting attorney’s situation also raises the matter of an appearance of impropriety, a factor
that is not explicitly included in the North Dakota Rules of Professional Conduct, but is nonetheless
an important consideration for situations involving client loyalty and conflicts of interest. See
Continental Resources, Inc. v. Schmalenberger, 2003 ND 26. Matters of appearances are assessed
from the perspective of an ordinary citizen, rather than a law trained judge or attorney. Ibid.
Requesting attorney’s firm has represented the city over the course of several years. For all but the
past two years, that representation included civil and criminal cases. Members of the public and,
indeed, a defendant may well conclude that as a result of its “connections” with the city the firm has
special insights or information or will receive special treatment that will be unfairly advantageous
to a defendant appearing in city court. “Appearances” matter and also support the Committee’s
conclusion that the arrangement contemplated by Requesting Attorney is prohibited.

CONCLUSION

The situation proposed by Requesting Attorney engenders impermissible conflicts of interest

which are prohibited by Rule 1.7. om

This opinion was drafted by Marilyn Foss and a d by the Ethics{ommittee on
February 25, 2009.

Dan Greenwood, Chair