Can a small city attorney's office prosecute a city employee who regularly investigates and testifies for the city in other ordinance cases?

Plain-English summary

Opinion E-86-14 asked whether a small city attorney's office may prosecute a city employee for an ordinance violation when that employee, both in the past and in the future, investigates, enforces, and testifies on behalf of the city in various unrelated ordinance enforcement actions. The committee answered no.

It reasoned that the working relationship between the employee and the city attorney's office was described as close and continuing, and that under these circumstances prosecution by a small-staff office could reasonably raise an appearance of impropriety in the public eye or result in an actual conflict of interest, for example the city attorney's interest in continuing a good working relationship with the employee versus the duty to exercise independent professional judgment as prosecutor. The committee cited the former Code provisions SCR 20.48 and 20.49 and its earlier Formal Opinion E-82-9. It added that the prospect of attacking the employee's credibility in one proceeding while trying to sustain it in another would appear contrary to the best interests of the client, the city, in employee relations and law enforcement generally. The committee concluded that such cases appear to require the appointment of an independent special prosecutor.

Currency note

This opinion was issued in 1986, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. The conflict-of-interest framework is now found in SCR 20:1.7 / Model Rule 1.7. 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 Treat this page as historical context, not current guidance.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 city attorney prosecute a city employee the office relies on as a witness in other cases?

A: The committee concluded a small city attorney's office should not, where the office and employee have a close, continuing working relationship, because of the appearance of impropriety or an actual conflict.

Q: What conflict did the committee identify?

A: Per the opinion, the city attorney's interest in continuing a good working relationship with the employee could collide with the duty to exercise independent professional judgment as prosecutor.

Q: What did the committee say should happen instead?

A: The committee concluded such cases appear to require the appointment of an independent special prosecutor.

Background and rules framework

The opinion interpreted the former Code's conflict-of-interest and tribunal-integrity provisions (SCR 20.48, 20.49), the area now governed by the concurrent-conflict rule SCR 20:1.7 / Model Rule 1.7, applied to a government lawyer's personal interest in a continuing relationship with a witness-employee being prosecuted.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.48, 20.49 / Model Rule 1.7 (conflicts of interest) (former Code provisions)

Cases:

• Perillo v. Advisory Committee on Professional Ethics, 83 N.J. 366, 416 A.2d 801 (1980)

Other opinions cited:

• Wisconsin Formal Ops. E-82-9 and E-75-19

See also

• WI Ethics Op. E-86-17: Disqualification of a Prosecutor Sued by a Defendant
• WI Ethics Op. E-87-1: City Attorney as Both Advocate and Advisor
• WI Ethics Op. E-87-12: Guardian ad Litem Later Serving as Prosecutor

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-86-14.pdf