Can a city attorney who prosecutes juvenile cases also accept appointments, or a retainer, to defend juveniles in court?

Plain-English summary

A bar member asked whether a city attorney could accept appointments to represent juveniles. The inquiring attorney was responsible, under city ordinance, for prosecuting all trials in the mayor's court for ordinance violations and for prosecuting juvenile cases in circuit court when the juvenile's arrest was made by police of the city he represented. The conflict the Committee identified was the prospect of prosecuting and defending juveniles in the same court, potentially on the same day.

The Committee relied on its prior Advisory Opinion 23 (November 22, 1958), which held that a public official's loyalty to the public while representing it in civil and criminal matters conflicts with the duty of zealous defense of an accused, and which stated that a city attorney may not defend felony cases arising within his municipality in any court. It found the present inquiry not materially different. The arrangement raised questions of propriety under EC 5-14, EC 5-15, DR 5-101(A), and DR 5-105(A) of Canon 5, and EC 9-2 and DR 9-101(C) of Canon 9; public policy was also expressed in Rule IV(C) of the Trial Court Rules, which disqualifies prosecuting and assistant prosecuting attorneys from appearing as defense counsel in any state court of record.

The Committee reasoned that the city attorney's duty as prosecutor and his duty as defense counsel are clearly conflicting, and that the possibility that public confidence in him might be diminished, or his vigor as prosecutor questioned because of his defense of an indigent juvenile, required avoiding such representation. It read State ex rel. Sowa v. Sommerville (decided July 7, 1981) as confirming that those acting as prosecutors and their assistants may not defend criminals in any county, and that assistant prosecutors and members of a prosecutor's firm may not accept private retainers to defend accused persons; although Sowa recognized an "appointed counsel" exception to the otherwise complete ban on a prosecutor's partners, the Committee read it to confirm that a prosecutor may not act as defense counsel, retained or appointed, in a court in which he prosecutes.

The Committee concluded that avoidance of conflicting loyalties, protection of public confidence in the legal system, and public policy dictate that a city attorney with the duty of prosecuting juvenile cases should not defend juveniles, for a retainer or on an appointed basis, in a state court of record.

Currency note

This opinion was issued in 1981, before West Virginia replaced its Code of Professional Responsibility (the DR, EC, and Canon provisions cited here) with the Rules of Professional Conduct, effective January 1, 1989, and before later rule revisions, including the comprehensive 2015 amendments. 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: Could a city attorney who prosecutes juveniles take appointments to defend juveniles?

A: No. The opinion concluded that a city attorney with the duty of prosecuting juvenile cases should not defend juveniles, whether retained or appointed, in a state court of record.

Q: Did it matter whether the representation was appointed rather than retained?

A: No. The opinion applied the conclusion to both retained and appointed defense work, reading State ex rel. Sowa v. Sommerville to confirm that a prosecutor may not act as defense counsel, retained or appointed, in a court in which he prosecutes.

Q: Why is prosecuting and defending such a problem?

A: The opinion reasoned that the city attorney's prosecutorial duty and his duty of zealous defense are clearly conflicting, and that the public's confidence in him, or his vigor as prosecutor, could be diminished if he also defended an indigent juvenile.

Background and rules framework

The opinion applied Canon 5 (EC 5-14, EC 5-15, DR 5-101(A), DR 5-105(A)) on conflicting loyalties and a lawyer's own interests, and Canon 9 (EC 9-2, DR 9-101(C)) on avoiding the appearance of impropriety, of the West Virginia Code of Professional Responsibility. It treated Rule IV(C) of the Trial Court Rules and the Supreme Court of Appeals' decision in State ex rel. Sowa v. Sommerville as statements of public policy that prosecuting attorneys may not appear as defense counsel in courts of record where they prosecute.

Citations and references

Rules of Professional Conduct (Code of Professional Responsibility, as cited):

• EC 5-14, EC 5-15 (loyalty; resolving doubt by declining conflicted employment)
• DR 5-101(A) (declining employment affected by the lawyer's own interests)
• DR 5-105(A) (declining employment involving differing interests)
• EC 9-2, DR 9-101(C) (avoiding the appearance of impropriety; not stating or implying an ability to improperly influence)

Court rules:

• Rule IV(C), Trial Court Rules for Trial Courts of Record (disqualifies prosecuting and assistant prosecuting attorneys from appearing as defense counsel in any state court of record)

Cases:

• State ex rel. Sowa v. Sommerville, ___ W. Va. ___, 280 S.E.2d 85 (No. 15110, July 7, 1981), prosecutors and their assistants may not defend criminals; "appointed counsel" exception for a prosecutor's partners

Other opinions cited:

• WVSB Advisory Opinion 23 (Nov. 22, 1958): a public official's loyalty to the public conflicts with the duty of zealous defense; a city attorney may not defend felony cases arising within his municipality

See also

• WVSB Ethics Op. 81-9: A special prosecutor's representation of other clients
• WVSB Ethics Op. 81-10: Firm conflict in a county jail-conditions suit
• WVSB Ethics Op. 84-5: Conflicts of prosecutors in the same private law firm

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e8f6655d45d5ace51.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

LEGAL ETHICS INQUIRY 81-3

PROPRIETY OF ACCEPTANCE OF APPOINTMENT BY CITY ATTORNEY IN CERTAIN JUVENILE CASES

A member of the Bar has requested the opinion of the Ethics Committee concerning the propriety of a city attorney's acceptance of appointments to represent juveniles.

In response to an inquiry by the Committee, the attorney requesting the advisory opinion has informed the Committee that he is responsible, under city ordinance, to prosecute all trials in the mayor's court for violation of city ordinances and that he is responsible for prosecuting juvenile cases in circuit court when the arrest of the juvenile was made by police personnel of the city he represents.

The Committee has previously held that it is inappropriate for a person to appear as both prosecutor and defense counsel in the same court. In its Advisory Opinion 23, November 22, 1958, this Committee reviewed a situation such as is involved in this inquiry. There, a public official's loyalty to the public while representing the public in civil and criminal matters was held to conflict with his duty of zealous defense of an accused in a criminal prosecution. The Committee held that such an apparent conflict should not exist and specifically stated that a city attorney may not defend felony cases arising within his municipality in any court.

The ethics inquiry now being considered by the Committee does not materially differ from the facts which resulted in Advisory Opinion 23. In the present inquiry, the city attorney is faced with the potential embarrassment of prosecuting and defending juveniles in the same court and on the same day. This reasonably raises questions of propriety under EC 5-14, EC 5-15, DR 5-101(A) and DR 5-105(A) in Canon 5 and EC 9-2 and DR 9-101(C) in Canon 9 of the West Virginia Code of Professional Responsibility.

Public policy regarding this apparent conflict in loyalty has also been expressed in Rule IV(C), Trial Court Rules (T.C.R.) for Trial Courts of Record, which disqualifies prosecuting attorneys and assistant prosecuting attorneys from appearing as defense counsel in any state court of record.

As those authorities clearly illustrate, the duty of the city attorney as prosecutor and his duty as defense counsel in any state court of record are clearly conflicting. Additionally, the possibility that public confidence in the city attorney might be diminished or his vigor as prosecutor questioned as a result of his defense of an indigent juvenile requires that he avoid such representation.

In its very recent opinion, State ex rel. Sowa v. Sommerville, ___ W. Va. ___, 280 S.E.2d 85 (No. 15110, July 7, 1981), the Supreme Court of Appeals has expressed its opinion concerning prosecutors' conflicts in loyalty and its effect upon their partners and associates. The opinion confirms that those acting as prosecutors and their assistants may not defend criminals in any county of the state and goes a step further in stating that assistant prosecutors and members of a prosecutor's law firm may not accept private retainers to defend alleged criminals. While the opinion in State ex rel. Sowa v. Sommerville clearly recognized an "appointed counsel" exception to an otherwise complete ban on the activities of partners of prosecutors, the Committee believes that the opinion confirms that a prosecutor may not act as defense counsel, as retained or appointed counsel, in a court in which he acts as prosecutor.

Accordingly, it is the opinion of the Legal Ethics Committee that avoidance of conflicting loyalties on the part of a city attorney, protection of public confidence in our legal system and public policy dictate that a city attorney with the duty of prosecution of juvenile cases should not defend juveniles, for a retainer or on an appointed basis, in a state court of record.