Can a part-time elected county commissioner represent a criminal defendant in a city municipal court before a judge who is also the county's elected district court judge?

Plain-English summary

The inquirer was a part-time elected commissioner of X County who planned a part-time private practice; previously he had been a senior criminal deputy prosecutor for X County. In private practice he appeared for a criminal defendant in the City of Y Municipal Court. The Y Municipal Court shares space and staff with the X County District Court, with the city reimbursing the county on a caseload-based formula reviewed by the city and the county commissioners; the same part-time judge serves, and is paid separately, as the elected X County District Court judge and the appointed Y Municipal Court judge. As commissioner, the inquirer would annually review and help approve the X County District Court's budget.

The committee answered that no RPC prohibits an attorney who is also a public official from representing clients in criminal matters in another jurisdiction. It explained that the inquirer was representing defendants in the City of Y, a different jurisdiction from X County where he serves as commissioner, and had no disclosed connection to the City of Y as an official or attorney. RPC 1.11 governs special conflicts for current and former government officers, but only RPC 1.11(d) applies to a lawyer currently serving as a public officer, and it subjects such a lawyer to RPC 1.7 and 1.9 and bars participating in matters the lawyer handled personally and substantially in private practice (absent the agency's written informed consent) or negotiating private employment in certain matters. Because the inquirer was not an official of the City of Y, the committee found RPC 1.11 inapplicable, and absent specific facts showing existing conflicts of the criminal-defendant clients with X County or the inquirer's other clients, RPC 1.7 and 1.9 were not implicated, although the committee noted those rules still apply generally. It cited WSBA Informal Ethics Opinions 2054 and 1766.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee read the question as a public-official-lawyer conflict problem and found nothing in the rules categorically barring the dual role across jurisdictions. The decisive facts were that the inquirer held office in X County while appearing as defense counsel in the City of Y, where he had no official or attorney role, so RPC 1.11(d)'s current-public-officer restrictions did not reach the representation. The committee did not find a triggered RPC 1.7 or 1.9 conflict on the facts presented, while reminding the inquirer that those rules apply generally and would govern if specific conflicting interests arose, for example between the criminal-defendant clients and X County or the inquirer's other clients.

Common questions

Q: Can a county commissioner also practice criminal defense law?

A: Yes, on these facts. The committee concluded that no RPC prohibits a lawyer who is also a public official from representing clients in criminal matters in another jurisdiction.

Q: Why didn't RPC 1.11 bar this representation?

A: Because, per the committee, the inquirer was not an official of the City of Y where he appeared; RPC 1.11(d)'s restrictions on a current public officer applied to his X County role, not to defense work in a different jurisdiction.

Q: Do the general conflict rules still matter?

A: Yes. The committee said RPC 1.7 and 1.9 were not triggered on the facts presented but still apply generally, so the inquirer must comply if specific conflicting interests arise.

Background and rules framework

The opinion interpreted Washington RPC 1.11 (Model Rule 1.11, special conflicts for current and former government officers and employees), focusing on RPC 1.11(d) for a lawyer currently serving as a public officer, which subjects that lawyer to RPC 1.7 (Model Rule 1.7, current conflicts) and RPC 1.9 (Model Rule 1.9, former clients) and references RPC 1.12(b) for law clerks. The committee applied these rules to a public official appearing as private counsel in a separate jurisdiction.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.11 / Washington RPC 1.11, 1.11(d) (special conflicts for government officers and employees)
• Model Rule 1.7 / Washington RPC 1.7 (conflicts of interest)
• Model Rule 1.9 / Washington RPC 1.9 (duties to former clients)
• Washington RPC 1.12(b) (former judge, arbitrator, or law clerk negotiating employment)

Other opinions cited:

• WSBA Informal Ethics Opinions 2054 and 1766

See also

• CBA Formal Op. 14: attorney as city councilman
• NC Ethics Op. CPR 252: disqualification of a public-official lawyer's partners
• CBA Formal Op. 45: part-time judge representing clients

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1617

Original opinion text

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

Advisory Opinion: 2168
Year Issued: 2007
RPC(s): RPC 1.11, 1.11(d), 1.7, 1.9, 1.12(b), Informal Opinons 2054, 1766
Subject: Elected county commissioner wishes to serve as lawyer on criminal case before an appointed municipal court judge who also is the elected district court judge for the county

A. ISSUE: Whether an elected county commissioner may serve as an attorney in a criminal matter before an appointed municipal court judge who is also the elected district court judge for the county?

B. BRIEF ANSWER: Yes, there are no RPCs that prohibit an attorney who is also a public official from representing clients in criminal matters in another jurisdiction.

C. STATEMENT OF THE FACTS: The inquiring attorney (“Inquirer”) is a current elected county commissioner in X County. The county commissioner position is part-time, and the Inquirer plans to practice law part-time. Prior to assuming the part-time commissioner position, the Inquirer was a senior criminal deputy prosecuting attorney for X County. In connection with the Inquirer’s private practice, the Inquirer has appeared in a criminal matter in Y Municipal Court on behalf of a criminal defendant. The Y Municipal Court operates in the same space (e.g., courtroom, clerk’s office) as the X County District Court. The City of Y reimburses X County for a pro-rated portion of the space it occupies and pays the county an agreed upon amount for its use of office supplies, equipment, and the court clerks, who are county employees. The reimbursement formula is based on a comparison of the caseloads of the two courts and is subject to periodic review by the city and the county commissioners. The judge is an elected part-time judge in X County District Court and also the appointed part-time judge for the Y Municipal Court. The judge is paid separately for these two positions. In the role of county commissioner, the Inquirer will review and participate annually in the approval of the budget of the X County District Court.

D. ANALYSIS: The Inquirer is representing criminal defendant clients in a jurisdiction (City of Y) that is different than the jurisdiction (X County) in which the Inquirer is a commissioner. Further, the Inquirer has not disclosed any connection to the City of Y as an official of or attorney for the city.

RPC 1.11 provides for special conflicts of interests for former and current government officers and employees. Only RPC 1.11(d) is relevant to a lawyer currently serving as a public officer or employee and provides as follows:

“Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).”

Here, since the Inquirer is not an official of the City of Y, Rule 1.11 is inapplicable. Further, absent specific facts concerning existing conflicts of interests of the Inquirer’s criminal defendant clients with X County or other of the Inquirer’s clients, Rules 1.7 and 1.9 are not applicable. Nevertheless, the Inquirer must still comply with Rules 1.7 and 1.9, as such rules are generally applicable.

See also WSBA Informal Ethics Opinion Nos. 2054 and 1766.