State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
May an attorney-council member represent clients in civil or criminal matters in which the city he serves as a council member has an adverse interest or position?
It is improper for an attorney who is a member of the city council to represent a client being prosecuted in a criminal matter by the city. Such attorney may not ethically represent a client in negotiating a contract with the city in which the attorney serves or in unrelated matters where the client's motivation in retaining the attorney is to influence the vote on a matter before the city council. A partner or office associate of the attorney is subject to the same ethical limitations.
Rule 5-102(B) of the Rules of Professional Conduct of the State Bar.
American Bar Association Code of Professional Responsibility, Disciplinary Rules 5-101(D) and 8-101(A).
Government Code section 87100.
The Committee has been asked: (1) May an attorney ethically defend a person in a criminal action being prosecuted by the city in which the attorney also serves as a council member?; (2) May an attorney represent a client (a) in a contract negotiation with the city in which he serves as a council member or (b) in unrelated matters where the client intends to influence a matter before the city council, assuming the attorney makes full disclosure of his interest and declines to vote when the matter comes before the council?; and, (3) May a partner or office associate of the attorney represent the client in either (1) or (2) above?
Based primarily on the ethical principles governing conflicts of interest and appearances of impropriety as applied to public officials, the Committee has concluded that the answer to each of these three questions is "No."
Rule 5-102(B) of the Rules of Professional Conduct provides:
"A member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned."
Consent to representation of conflicting interests is considered unavailable where the public interest is involved. (ABA Committee on Prof. Ethics, opn. No. 77 (1932); L.A. Co. Bar Assn Committee on Legal Ethics, opn. No. 273 (1962); Drinker, Legal Ethics (1953) p. 120.)
American Bar Association Code of Professional Responsibility, canon 8, provides:
"A lawyer should assist in improving the legal system."
American Bar Association Code of Professional Responsibility, Ethical Consideration 8-8, provides, in pertinent part:
"... A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."
American Bar Association Code of Professional Responsibility, canon 9, provides:
"A lawyer should avoid even the appearance of professional impropriety."
In People v. Rhodes (1974) 12 Cal.3d 180 [115 Cal. Rptr. 235], the Supreme Court held that a city attorney with prosecutorial responsibilities may not defend or assist in the defense of a person being prosecuted for a crime in the same county. In reaching this result, the Court concluded that, although no actual conflict existed, the potential for conflict was evident and precluded effective representation. The Court also based its decision on the wholly separate basis that, in order for the public to have absolute confidence in the integrity and impartiality of our criminal justice system, public policy requires that public officials not only in fact properly discharge their responsibilities, but also avoid, to the extent possible, even the appearance of impropriety.
The rationale of the Rhodes decision was followed in People v. Municipal Court (Wolfe) (1977) 69 Cal.App.3d 714 [138 Cal. Rptr. 235], where the Court of Appeal for the Fourth District held that the trial court did not abuse its discretion in disqualifying an attorney-council member from representing a defendant in a criminal action in which police officers from the city in which the attorney serves would testify for the People. In reaching its decision, the court quoted from American Bar Association Committee on Professional Ethics, opinion No. 49 (1931), as follows:
"If the [legal] profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but likewise avoid the appearance of evil."
In Los Angeles County Bar Association Committee on Legal Ethics, opinion No. 273, supra, it was decided that an attorney-council member may not represent a client charged with violation of a city ordinance where the prosecutor is the city attorney serving at the pleasure of the council and a material prosecution witness is a police officer subject to investigation by the council. Similar decisions were reached in Michigan State Bar Ethics Opinions Nos. 133 and 139 (1950).
Upon examination, the areas of potential (if not actual) conflict and impropriety are obvious and substantial. In defending a criminal action, the attorney may be reluctant to engage in complete or abrasive cross-examination of city policy officers who repeatedly serve as key prosecution witnesses for the city. The attorney might be tempted to soften or avoid criticism of local police conduct which should properly be stressed in the case he was defending. Proper defense of a case might call for an attack on the validity of an ordinance previously enacted by council action in which the attorney participated. There would be a temptation to exercise the influence of public office in negotiating or otherwise dealing with a city attorney who may serve at the pleasure of the council, for the benefit of his client and himself. In prosecuting violations of city law, the city stands to benefit to the extent of fines imposed and the deterrent value of convictions obtained--all directly contrary to the interest which the attorney is bound to protect in defending his client. Finally, police officers or other material witnesses employed by the city and subject to control or influence by the council may be tempted to slant their testimony in favor of the council member's client.
In view of such considerations, and being of the belief that an attorney-public official must exercise the highest degree of care to avoid giving the public the impression that he has improperly used the influence of his public office, it is our conclusion that representation by an attorney of a defendant in a criminal action being prosecuted by the city in which the attorney serves as a council member would be unethical and should be declined at all stages.
Ethical considerations are essentially the same in analyzing the ethical propriety of an attorney representing a client in a contract negotiation with the city in which the attorney also serves as a council member. The potential for conflict of interest and the appearance of impropriety are not eliminated by making a full disclosure and declining to vote when the contract comes before the council for approval. It is apparent that in this situation, also, the attorney may be tempted to use his influence of public office to gain advantages and concessions in contract terms for the benefit of his client. The city employees representing the city in a contract negotiation, who are subject to the council's jurisdiction, may be reluctant to oppose the attorney in his contract demands; or they may be tempted to slant their evaluations and analyses of the matter to favor the attorney. In such contract negotiations, the client is motivated to maximize his profits, while a prime concern of the city is to minimize its expense. And there is always the possibility that the attorney would seek to influence the vote of other council members not strictly on the merits but by reason of his client's interest.
American Bar Association Code of Professional Responsibility, Disciplinary Rule 8-101(A) provides:
"(A) A lawyer who holds public office shall not:
"(1) Use his position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest.
"(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or a client.
"(3) Accept anything of value from any person when the lawyer knows or it is obvious that the offer is for the purpose of influencing his action as a public official."
Although there may be no actual conflict of interest in the representation of a client in negotiating a contract with the city, the potential for such conflict and the danger of an appearance of impropriety are of such magnitude and public concern as to require that such representation be declined. In the eyes of the public, it is highly possible that representation in such cases would be viewed with suspicion that the attorney was using his position and influence with the city for the purpose of extracting favorable or special treatment for his clients, in furtherance of their interests and his own. Even the appearance of such impropriety could operate to weaken the public's confidence in the integrity and fidelity of its public officials. Los Angeles County Bar Association Committee on Legal Ethics, opinion No. 273, supra, states, at page 399:
"A lawyer's duty to the public when holding public office is stated by Brand, quoted in Persig, "Cases on the Legal Profession," page 44:
'When a lawyer is elected to the legislature his duty as the holder of such office requires him to represent the public with undivided fidelity. His obligation as a lawyer continues. It is improper for him, as for any other lawyer, to represent conflicting interests..."'
See also Government Code section 87100 (prohibiting public officials from using official position to influence governmental decisions in which they have financial interest).
It is also our opinion that, where the client's motivation is to somehow influence the city in a contract matter, it would be inappropriate for the attorney to accept or continue representation of the client, even in matters wholly unrelated to city activities. Knowing that the attorney has easy access to and the ear of other council members, the public may well infer that it was some ulterior or corrupt motive, rather than the attorney's legal ability, that prompted the client to retain him in the first place. (See Drinker, Legal Ethics, supra, at p. 119; Michigan State Bar Ethics opn. No. 83 (1944).) Another consequence of such representation would be that the attorney would be forced to decline to vote when the client's contract matter comes before the council. Regardless of whether the client's real motivation in retaining the attorney was to neutralize or eliminate his vote, his constituents will be deprived of their right to be represented by him in the decision-making process on his client's matter before the city. For these reasons, such representation should also be declined or terminated.,
Finally, it is the Committee's view that a partner or office associate stands in the same position as the attorney-council member insofar as the propriety of representing clients in the situations described above. American Bar Assocation Code of Professional Conduct, Disciplinary Rule 5-105(D) states:
"If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment."
(See also ABA Committee on Prof. Ethics, opns. Nos. 33 (1931), 49 (1931), 104 (1934); L. A. Co. Bar Assn. Committee on Legal Ethics, opn. No. 242 (1957).)
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.