Can a lawyer be a city special prosecutor while also defending criminal cases in the same city court?

Plain-English summary

Attorney A practiced in a five-division city court of the state's fourth-largest city, where there was no scarcity of attorneys. A asked whether A could simultaneously serve as a special prosecutor for the city and defend criminal cases in that city court, represent two of the city court judges in special actions or civil matters while defending criminal cases there, or do both at once, and whether the limits extended to A's partners.

On the special-prosecutor question, the committee concluded the answer was no. It traced its own shifting history (earlier opinions like 70-22 and 73-31 had permitted such work in limited, often rural, circumstances), but concluded its more recent opinions (74-20 and 74-31) supported the view that a lawyer may not serve as both public prosecutor and criminal defense attorney in the same court. The committee noted that, although the new Rules dropped the explicit "appearance of impropriety" requirement of former DR 9-101, that concern partially survives within the general conflict rules of ER 1.7, citing Gomez v. Superior Court.

On representing the judges in personal civil matters while defending in the same court, the committee surveyed out-of-state authority (some permitting it with disclosure) and concluded that, while no authority clearly ruled the conduct out, the situation was "fraught with danger." Applying Gomez and ER 1.7, the committee found it difficult to conceive how the attorney-client relationship with a judge could be set aside so as not to affect the judge's impartiality when A appeared as defense counsel, and that even the appearance would tend to discredit the profession and the judicial system. On the combined special-prosecutor-plus-judge-representation question (Question 3), the committee answered yes only on the assumption that the judge was named as a mere nominal party in special actions where the real party in interest was a defendant, so that A represented the state in both capacities.

On imputation, the committee concluded that the limits applying to A also apply to A's partners and associates under ER 1.10 and the body of "infectious disqualification" opinions, citing its Opinion No. 81-17. It treated the final, broad questions about each party's responsibilities as answered by the preceding discussion.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. 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 lawyer prosecute for a city and defend criminal cases in that same city court?

A: The opinion concluded no; its more recent line of opinions held a lawyer may not serve as both public prosecutor and criminal defense attorney in the same court, and the appearance-of-impropriety concern survives within ER 1.7.

Q: Can the lawyer represent that court's judges in their personal civil matters while defending there?

A: The committee concluded such conduct is "fraught with danger" under Gomez and ER 1.7, because it is hard to see how the judge's impartiality would be unaffected when the lawyer appears as defense counsel.

Q: Do these restrictions reach the lawyer's partners?

A: Yes; the opinion concluded the limits are imputed to A's partners and associates under ER 1.10 and the "infectious disqualification" opinions.

Background and rules framework

The opinion applied ER 1.7 (Model Rule 1.7) on conflicts of interest, reading the former "appearance of impropriety" standard as partially surviving within it per Gomez v. Superior Court, and ER 1.10 (Model Rule 1.10) on imputed disqualification. It also referenced Canons 1 and 2 of the Code of Judicial Conduct governing the city court judges.

Citations and references

Rules of Professional Conduct:

• ER 1.7 / Model Rule 1.7 (conflict of interest)
• ER 1.10 / Model Rule 1.10 (imputed disqualification)

Cases:

• Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986), appearance of impropriety within the conflict rules
• State v. Jenkins, 148 Ariz. 463, 715 P.2d 716 (1986), conflict where defense counsel represented an investigating officer

Other opinions cited:

• Arizona Opinions 70-22, 73-31, 74-20, 74-31, 81-17: prosecutor/defense and imputed-disqualification history
• ABA Informal Op. 1306 (1974); North Carolina Op. 745 and CPR-183; Michigan Informal Op. 306

See also

• AZ Ethics Op. 87-21: Public Defender as Pro Tem Judge
• AZ Ethics Op. 87-13: Public Defender Independence
• AZ Ethics Op. 87-15: Conflicts

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=569

Original opinion text

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

9/1987

A lawyer or her partners may not ethically act as a special prosecutor for a city, or represent City Court judges in special actions or civil matters while simultaneously handling criminal defense cases in city court of the same city.

FACTS

Attorney A practices in City Court M, which has five divisions. City M is the fourth largest city in the State and is not rural. There is no scarcity of attorneys in City M or M's suburbs.

QUESTIONS

• Can A act as a special prosecutor for City M and simultaneously handle criminal defense cases in City Court M?
• Can A represent two of the City Court judges of M in special actions or civil matters and simultaneously handle criminal cases as a defense attorney in City Court M?
• Can A represent the City Court judges on special actions as an attorney for the City Court of M and act as a special prosecutor therein at the same time?
• Do the limitations applicable to attorney A also apply to A's partners and associates?
• What responsibilities do A and A's associates have?
• What responsibilities does each judge in City Court M have?

ETHICAL RULES INVOLVED

• Rules of Professional Conduct

ER 1.7. Conflict of Interest: General Rule

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected: and

ER 1.10. Imputed Disqualification: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8(c), 1.9 or 2.2.

(b) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in ER 1.7.

B. Code of Judicial Conduct

Canon 1

A Judge Should Uphold the Integrity

and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.

Canon 2

A Judge Should Avoid Impropriety and

the Appearance of Impropriety in All His Activities

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others: nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

Compliance with the Code of Judicial Conduct

This Code shall govern all of the justices and judges of all of the courts in Arizona's judicial system performing judicial functions, including an officer such as a court commissioner, justice of the peace and city or town magistrate. ****

OPINION

Question 1: Can A act as a special prosecutor for City M and simultaneously handle criminal defense cases in City Court M?

This issue has been the subject of many opinions of this committee. The committee's position on this issue has changed back and forth several times through the years.

Some earlier opinions of the committee permitted such activity under certain limited conditions. See, for example, our Opinions Nos. 70-22 and 73-31. Opinion No. 70-22 held that it was ethically improper for a city attorney to defend cases in the Municipal Court of the city by which he is employed or in a Justice Court having concurrent jurisdiction with that Municipal Court, in any case in which police officers employed by the city by which the attorney was employed would testify or where the offense was committed within the city by which he was employed. That opinion held, however, that under certain limited circumstances a city attorney ethically could defend criminal cases in Municipal Courts of cities other than the city by which he was employed, in Justice Courts, in Superior Courts and in Federal Courts, Id., p. 8.

Opinion No. 73-31 also held it ethically proper for an attorney to accept employment as a city prosecutor on a case-by-case basis while also defending persons charged with crimes in other courts. Id.. p. 5. However, that opinion is limited to its facts, i.e. two cases involving non-metropolitan cities where there was a scarcity of high quality legal counsel and where such legal counsel would be reluctant to accept the position of city prosecutor if they would thereby be precluded from accepting criminal defense work in all courts in which they customarily appeared.

However, our more recent opinions addressing this issue strongly support the position that an attorney may not act as a special prosecutor in the same court in which he is concurrently defending other criminal cases. See our Opinion No. 74-20 at page 3, and Opinion No. 74-31· at page 4. The latter opinion is directly on point. That opinion notes that, in general, the committee believes that it is not ethically proper for an attorney to serve both as a public prosecutor and as a criminal defense attorney. Id., p. 3. See, also Opinion Ne. 74-20 at page 2.

It should also be noted that, although the new Rules of Professional Conduct do not contain an explicit requirement that an attorney must avoid even the appearance of impropriety (as was expressly set forth in DR 9-101 of the prior Code of Professional Responsibility), that requirement appears to survive partially as part of the general conflict of interest rules (ER 1.7). See Gomez v. Superior Court, 149 Ariz. 223, 225, 717 P.2d 902, 904 (1986).

In view of the Rules provisions and prior authority cited above, it is our opinion that Question 1 must be answered -- No.

Question 2: Can A represent two of the City Court judges of M in special actions or civil matters and simultaneously handle criminal cases as a defense attorney in City Court M?

With regard to special actions: if the judge is only a nominal party in them and the real parties in interest are A's clients, see the discussion under Question 3 below.

As to civil matters where the judge is personally involved, there do not appear to be any Arizona ethics opinions on point.

The American Bar Association apparently does not view such a situation as one necessarily causing an ethical dilemma for an attorney. A.B.A. Informal Opinion 1306 (Nov. 19, 1974) states that there is nothing in the Code of Professional Responsibility that prohibits the members of a firm which represents a judge from appearing before that judge in any matter where he has not disqualified himself even if he has erred in failing to do so (the committee noting that Judicial Canon 3C(1) gives some guidance on this point). (Maru, 1975 Supp. to Digest of Bar Assn. Ethics Opinions, § 7451.)

The North Carolina State Bar has held that an attorney representing a judge in a civil domestic relations matter may appear before that judge if he discloses his relationship to opposing counsel. (See North Carolina Opinion 745, April 16, 1971, summarized at Maru, 1975 Supp. to Digest of Bar Assn. Ethics Opinions, § 9495.)

It would seem that the attorney should also, at least, disclose this relationship to his own client. Cf. State v. Jenkins, 148 Ariz. 463, 715 P.2d 716 (1986). In that case, the defense counsel represented an investigating police officer in an unrelated divorce action. The court noted that the defense attorney had a conflict of interest and, at a minimum, should have consulted with his client and obtained a written waiver from him. (148 Ariz. at 465, 715 P.2d at 716).

Other opinions state that an attorney may not represent clients coming to trial before a judge whom the attorney has represented. See, for example, North Carolina Opinion CPR-183, July 14, 1978, summarized at Maru, 1980 Supp. To Digest of Bar Assn. Ethics Opinions, § 12435.

In that case, the attorney had represented the judge in a disciplinary hearing. The judge was not suspended and regularly held court. It was held that the attorney could not properly represent clients coming to trial before the judge nor tender pleas of guilty before him (although it was said that the committee had no authority to determine whether the judge could sentence the attorney's clients!).

The above opinions lead us to the conclusion that, where an attorney has represented, or is representing, a judge in a civil matter, the attorney may appear before the judge as a defense attorney, if the judge does not disqualify himself. The attorney probably must secure his client's permission after making disclosure of his relationship with the judge. The attorney probably also must disclose the relationship to opposing counsel, but it is not clear whether he must have the prosecuting attorney' s consent to appear before that judge.

Although there appears to be no authority clearly ruling out the proposed conduct, and some authority which permits it, under certain conditions, it is our opinion that such conduct is fraught with danger. As noted above, the requirement that an attorney avoid even the appearance of impropriety at least partially survives as part of the general conflict of interest rules. Gomez, Id, 149 Ariz. at 225, 717 P.2d at 904."...an appearance of impropriety should be enough to cause an attorney to closely scrutinize his conduct. It does not necessarily follow that it must disqualify him in every case. Where the conflict is so remote that there is insufficient appearance of wrongdoing, disqualification is net required." Gomez, 149 Ariz. at 225, 717 P.2d at 904.

In view of the Gomez language and the Rules provisions cited above, it is difficult to conceive how the attorney-client relationship could be set aside so that there would be no impact on the impartiality of the judge when Attorney A is appearing as a criminal defense attorney in City Court M. Even if this could be done, the appearance of such a situation would tend to bring discredit upon the legal profession and the judicial system.

Question 3: Can A represent the City Court judges on special actions as an attorney for the City Court of M and act as a special prosecutor at the same time?

We are assuming, in answering this question, that the special actions referred to are special actions in which the judge is named merely as a nominal party, the real party in interest being a defendant. In that case, there would be no conflict of interest for Attorney A because he would be representing the state in both situations. His representation of the judge would be in form only, and the substance of the matter would be relevant to the defendant.

The Michigan State Bar has specifically held that when an assistant city attorney in his official capacity represents a judge who has been sued as a result of the judge's official acts, the judge is not disqualified from hearing cases in which the assistant city attorney appears, unless the judge is biased or prejudiced for or against the assistant city attorney. (See Michigan Informal Opinion 306, 57 Mich. St. B.J. 328 (Special Issue, February, 1978), summarized at Maru, 1980 Supp. to Digest of Bar Assn. Ethics Opinions, 5 § 11686.) This could indicate that the city attorney may ethically appear before the judge if the judge does not disqualify himself.

For the reasons set forth above, it is our opinion that this question should be answered -- Yes.

Question 4: Do the limitations applicable to Attorney A also apply to A's partners and associates?

Any limitations which apply to Attorney A also apply to A's partners and associates. This is made expressly clear in ER 1.10 set forth above. In addition, there are numerous ethics opinions pertaining to imputed, vicarious or "infectious" disqualification. All of these stand for the same principle, namely, that A's partners and associates are bound in the same manner as is A.

This principle was supported in our Opinion No. 81-17, which held that one partner could not defend cases in a Municipal Court, even though it was a different court than the Superior Court and the Justice Court in which his partner (identified in the public mind as a prosecutor) practiced as a deputy county attorney.

For the reasons set forth above, it is our opinion that this question should be answered -- Yes.

Questions 5 and 6: What responsibilities do A and A's associates have and what responsibilities does each judge in City Court M have?

These are very broad questions and we are not certain what was intended by them. However, we believe that the answers to these questions are basically incorporated in the discussions and opinions set forth above.

© State Bar of Arizona 1987