Can a city attorney who normally advises a city council or committee also act as the city's advocate before that same body on a matter where it has separate counsel?
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This page answers the general question as of 1989. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-89-15 clarified the committee's earlier Formal Opinions E-83-12 and E-87-1 on a city attorney who combines advisory and advocacy (prosecutorial) roles. The first question was whether a city attorney who acts as advisor for the majority of city committee and common council business may act as an advocate for the city before a committee or the council on matters for which the committee or council has independent counsel. The second was whether, if so, the city attorney may also act as advisor to that committee or the council on unrelated agenda items at the same meeting.
The committee answered both questions yes. It concluded that the professional conduct implications of the combined advocate-advisor role are adequately resolved by separating those roles in the same matter, citing its Formal Opinions E-83-12 and E-87-1. The committee added that if any greater separation of roles is required by due process considerations, that is a question of law the committee is not authorized to answer, again referring to the last paragraph of E-83-12.
Currency note
This opinion was issued in 1989, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update). 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 Treat this page as historical context, not current guidance.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 advise and also advocate before the same council?
A: Yes, with role separation. The committee concluded a city attorney who advises most council business may also advocate for the city before the council on a matter for which the council has independent counsel, provided the roles are separated in that matter.
Q: Can the city attorney advise on other items at the same meeting?
A: Yes. The committee concluded the city attorney may also advise the committee or council on unrelated agenda items at the same meeting.
Q: Does this opinion resolve any due-process concerns?
A: No. The committee concluded that whether due process requires any greater separation of roles is a question of law it is not authorized to answer.
Background and rules framework
The opinion addressed the combined advisor-advocate role of a city attorney as a matter of role separation rather than by citing a specific Rule, clarifying the committee's earlier Formal Opinions E-83-12 and E-87-1. It expressly left questions of due-process role separation to be resolved as matters of law.
Citations and references
Other opinions cited:
- Wisconsin Formal Op. E-83-12 (clarified)
- Wisconsin Formal Op. E-87-1 (clarified)
See also
- WI Ethics Op. E-90-5: City Attorney as Defense Counsel
- WI Ethics Op. E-92-5: Corporation Counsel in Support Cases
- WI Ethics Op. E-90-6: Public Defender Conflicts 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-89-15.pdf
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