Can a district attorney represent a private landowner in a condemnation case brought by the state, while the county and state are his public clients?

Plain-English summary

Opinion E-65-1 asked whether a full-time or part-time district attorney could represent a citizen whose land was being taken in condemnation proceedings brought by the State Highway Commission. The committee answered no. It found no difference between a full-time and a part-time district attorney: a part-time district attorney still represents the county and state as their attorney for the full week, not only on the days he performs public work, so the answer was the same regardless of the office's hours or salary.

The committee traced the district attorney's statutory duties under sec. 59.47 of the Wisconsin Statutes, including prosecuting and defending actions in which the state or county is interested, advising county officers, and serving as legal adviser to the county highway commissioner. Because the county highway commissioner and the State Highway Commission are closely intertwined in condemnation matters, the committee concluded the district attorney's public role placed him on the public side of a condemnation. The general principles preventing attorneys from representing adverse interests applied, and were reinforced by the quasi-judicial nature of the district attorney's duties. Where the public is concerned, consent cannot cure the conflict, as ABA Opinion 296 and Wisconsin case law (Coon v. Metzler) recognized: the prosecutor's sole client is justice, and any private retainer that would sway his judgment must be avoided.

The committee surveyed supporting authority, including ABA Opinions 30, 118, 186, and 242 and several Attorney General opinions holding that a district attorney cannot appear for a party other than the state or county in a matter in which the public has an adverse interest. It concluded that taking the condemnation case would create conflicting interests, because the district attorney would owe his private client a duty to recover a high award payable by his public employer and the public, whom he also had a duty to protect. The committee found such a practice clearly harmful to the public, whose service is the district attorney's first and foremost duty.

Currency note

This opinion was issued in 1965, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Canons of Professional Ethics and general conflict principles. The current counterparts are SCR 20:1.7 / Model Rule 1.7 (conflicts of interest; current clients) and SCR 20:1.11 / Model Rule 1.11 (special conflict rules for current and former government officers and employees). 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: Can a part-time district attorney take private cases against the state?

A: Under this opinion, not where the state or county is on the other side. The committee held that a part-time district attorney represents the county and state for the full week, so the part-time status did not change the answer.

Q: Why couldn't the client just consent to the conflict?

A: The committee held that where the public is concerned, consent is not available, because the public cannot consent; it relied on ABA Opinion 296 and Coon v. Metzler for that point.

Q: What made a condemnation case specifically a conflict?

A: The district attorney serves as legal adviser to the county highway commissioner, who is closely tied to the State Highway Commission in condemnation matters, so representing the landowner would put the district attorney on both sides, with a duty to seek a high award payable by his public employer.

Background and rules framework

The opinion applied the former Canons of Professional Ethics and the principle that a lawyer cannot represent adverse interests, heightened by the quasi-judicial character of the prosecutor's office and the rule that the public cannot consent to such a conflict. The current counterparts are SCR 20:1.7 / Model Rule 1.7 (conflicts) and SCR 20:1.11 / Model Rule 1.11 (government officers and employees).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / SCR 20:1.7 (conflicts of interest; current clients); former Canons 6, 29
• Model Rule 1.11 / SCR 20:1.11 (special conflicts for government officers and employees)

Statutes:

• Wis. Stats. sec. 59.47 (district attorney's duties); secs. 32.05, 83.01, 83.10, 83.126, 84.07 (condemnation; highways)

Cases:

• Coon v. Metzler, 161 Wis. 328, 154 N.W. 377 (1915), district attorney should not act as private attorney to recover civil damages from a supposed criminal act
• Loew v. Gillespie, 90 Misc. 616, 153 N.Y. Supp. 830 (1915), public policy forbids a city's attorney from accepting a retainer in an action against the city

Other opinions cited:

• ABA Opinions 30, 118, 186, 242, and 296: prosecutors and county attorneys may not represent interests adverse to the public they serve

See also

• WI Ethics Op. E-69-1: Municipal Justice of the Peace Conflicts
• WI Ethics Op. E-75-17: Private Practice by Full-Time District Attorney
• WI Ethics Op. E-75-25: Private Practice by a Lawyer Holding Public Office

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-65-1.pdf