Can a city attorney's office both prosecute the city's case and advise the city board or commission that decides that same matter?

Plain-English summary

Opinion E-87-1 asked whether a city attorney's office may ethically serve both as an advocate of the city and as an advisor to an appellate board or commission of the city in proceedings involving the same matter. The committee answered by drawing on its earlier Formal Opinion E-83-12, in which it had concluded that a city attorney asked to be both a zealous advocate of the complaining party and advisor to the impartial trier of fact could not adequately serve both competing interests, and that even if such dual representation were proper, the appearance of impropriety would be overwhelming.

Based on the same reasons and concerns, the committee expanded the E-83-12 holding to include all proceedings in which city attorneys may be called upon to serve both as advocates and as advisors to administrative tribunals. It reasoned that holding otherwise would be inconsistent with the spirit or letter of the numerous court rules governing lawyers' conduct that seek to ensure the integrity and impartiality of judicial and administrative tribunals, citing a series of former Code provisions.

Currency note

This opinion was issued in 1987, 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, and the cited Code provisions have been renumbered. 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 Treat this page as historical context, not current guidance.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 the same city attorney's office prosecute a matter and advise the board that decides it?

A: The committee concluded no; a city attorney's office may not serve as both advocate of the city and advisor to a city appellate board or commission in the same matter.

Q: Does this apply only to appellate boards, or to other city tribunals too?

A: The committee expanded its earlier E-83-12 holding to all proceedings in which a city attorney might be called on to serve as both advocate and advisor to an administrative tribunal.

Q: What was the committee's underlying concern?

A: Per the opinion, the dual role cannot adequately serve the competing interests, creates an overwhelming appearance of impropriety, and is inconsistent with rules protecting the integrity and impartiality of tribunals.

Background and rules framework

The opinion interpreted the former Code's conflict-of-interest and tribunal-integrity provisions (including SCR 20.48), the area now governed by the concurrent-conflict rule SCR 20:1.7 / Model Rule 1.7, as applied to a government lawyer asked to occupy advocate and advisor roles in the same proceeding.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20.48 / Model Rule 1.7 (conflict of interest; integrity of the tribunal) (former Code provisions)

Other opinions cited:

• Wisconsin Formal Op. E-83-12

See also

• WI Ethics Op. E-88-2: Successive Government Employment and Related Lawyers
• WI Ethics Op. E-91-6: Government Lawyer Contact With Represented Parties
• WI Ethics Op. E-86-17: Disqualification of a Prosecutor Sued by a Defendant

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-87-1.pdf