Can a lawyer be a certified police officer with arrest powers and also serve as the city prosecutor for cases made by that department?

Plain-English summary

A lawyer was to become legal advisor and detective with a municipal police department, attend the police academy, and become a certified police officer with full arrest powers. The lawyer's duties would include prosecuting in jury trials all cases made by city police officers, with full discretion over prosecution, while possibly having supervisory duties over other officers and answering to superiors. The question was whether an active member of the Bar could be employed as a certified officer with arrest powers and supervisory authority while also serving as city solicitor prosecuting all criminal violations in municipal court.

The committee found no ethical prohibition in the Rules, but stressed that the lawyer must adhere to Rules 3.7, 3.8, 5.2(a), and 5.4(c), and that prosecution of all cases must remain in the lawyer's full discretion. Rule 3.7 bars a lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness, absent the rule's exceptions. Rule 3.8 imposes special responsibilities on a prosecutor; while no part of it specifically prohibits the conduct, Comment 1 describes the prosecutor as a minister of justice with obligations to see that the defendant receives procedural justice and that guilt is decided on sufficient evidence, a responsibility the committee said could arguably be compromised if the lawyer answers to a supervisor in the police hierarchy. The committee noted that a lawyer-officer could increase the department's consciousness of due process and serve the public more efficiently, but also that specialized knowledge could promote violations if the lawyer were not inclined to protect defendants' rights, which is why conflict rules exist.

The committee concluded it appears proper for a lawyer to be both a police officer and to take part in prosecution, keeping Rules 3.7 and 3.8 in mind and making independent professional judgments as required by Rules 5.2(a) and 5.4(c). It cautioned that there may be problem situations, including where the lawyer was the investigating or arresting officer, or where the lawyer may be subject to undue influence or interference from another source, in which case the Rules of Professional Conduct override all else.

In practice

Under this opinion, on the facts presented, a lawyer may serve as both a certified police officer and the city prosecutor, but only while keeping prosecution within the lawyer's full discretion and adhering to Rules 3.7 (lawyer as witness), 3.8 (prosecutor's special responsibilities), 5.2(a), and 5.4(c) (independent professional judgment). The committee flagged that problems arise where the lawyer was the investigating or arresting officer, or is subject to undue influence from within the department hierarchy, and that in those situations the Rules control.

Common questions

Q: Can a lawyer be both a sworn police officer and the prosecutor for that department?

A: The committee found no per se ethical bar, provided the lawyer adheres to Rules 3.7, 3.8, 5.2(a), and 5.4(c) and prosecution of all cases remains in the lawyer's full discretion.

Q: What is the concern about answering to police supervisors?

A: The committee noted that the prosecutor's Rule 3.8 role as a minister of justice could arguably be compromised if the lawyer is subject to supervision within the police hierarchy, and that the lawyer must make independent judgments under Rules 5.2(a) and 5.4(c).

Q: Are there situations where this arrangement becomes improper?

A: Yes. The committee identified problems where the lawyer was the investigating or arresting officer, or is subject to undue influence or interference, in which case the Rules of Professional Conduct override all else.

Background and rules framework

The opinion applies South Carolina Rule 3.7 (lawyer as witness), Rule 3.8 (special responsibilities of a prosecutor, with Comment 1), Rule 5.2(a) (responsibilities of a subordinate lawyer), and Rule 5.4(c) (preserving independent professional judgment). These correspond to the like-numbered Model Rules. The analysis turns on the prosecutor's duty of independent judgment within a police hierarchy.

Citations and references

Rules of Professional Conduct:

• MR 3.7 / SC Rule 3.7 (lawyer as a necessary witness)
• MR 3.8 / SC Rule 3.8 and Comment 1 (prosecutor as minister of justice)
• MR 5.2 / SC Rule 5.2(a) (responsibilities of a subordinate lawyer)
• MR 5.4 / SC Rule 5.4(c) (independent professional judgment)

See also

• SC Bar Ethics Op. 05-17: A solicitor's release-dismissal agreement
• SC Bar Ethics Op. 03-11: A prosecutor's duty to disclose an officer's false testimony
• SC Bar Ethics Op. 05-06: A defense lawyer who may be a witness

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-06-09/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 06-09

SC Rules of Professional Conduct 3.7, 3.8, 5.2(a) and 5.4(c)

Facts:
Lawyer is to become legal advisor and detective with a municipal police department. Lawyer will be sent to the police academy and will be a certified police officer with full arrest powers. Part of Lawyer’s job duties will include representing the city in jury trials as prosecutor for all cases made by city police officers. Lawyer may have supervisory duties over other officers and will have to answer to his/her superiors as well. Lawyer will have full discretion in the prosecution of the city’s cases.

Question:
Can an active member of the South Carolina Bar be employed by a city police department where the lawyer will be a certified police officer with full arrest powers and with supervisory authority over other law enforcement officers within the department and also serve as city solicitor and prosecute all criminal violations in municipal court?

Summary of Opinion:
While there is no ethical prohibition to the proposed situation found in the Rules of Professional Conduct, it is incumbent on a lawyer to adhere to Rules 3.7, 3.8, 5.2(a) and 5.4(c). Further, the Committee wishes to stress that the prosecution of all cases must remain in the full discretion of the lawyer.

Opinion:
The role of a lawyer as a prosecutor presents several issues. Rule 3.7 of the Rules of Professional Conduct provides that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless certain prerequisites are satisfied. Rule 3.8 imposes special responsibilities upon a prosecutor. Although no portion of Rule 3.8 specifically prohibits the proposed conduct, Comment (1) provides: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the Defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence...” Arguably, such a responsibility could be compromised if the lawyer is subject to supervision or even in general answers to a direct or indirect supervisor within the police department hierarchy.

On the other hand, having a lawyer employed as a police officer would obviously serve to increase the consciousness of the police department in general for due process and thereby would actually serve the public more efficiently. While this is the general rule, a contrary argument may be made that if the lawyer were not inclined to protect the rights of criminal defendants, his specialized knowledge could actually promote increased violations of due process. While most likely the latter situation is not the case, the purpose of conflict of interest rules in general is to prevent such conflicts in the first place.

The lawyer must be particularly mindful of the provisions in the Rules which require the lawyer to make independent judgments regarding professional conduct. See Rules 5.2(a) and 5.4(c).

It would appear to be proper for a lawyer both to be a police officer and to take part in the prosecution of cases, keeping in mind Rules 3.7 and 3.8. However, the Committee believes that there may be situations where there are problems, including where the lawyer himself was the investigating or arresting officer and where the lawyer may be subject to undue influence or interference from another source, in which case the Rules of Professional Conduct override all else.