Can a city's police legal advisor move into the city corporation counsel's office without creating a conflict of interest with the police officers he previously advised?

Plain-English summary

A larger city proposed to move the position of Police Legal Advisor (P.L.A.) out of the Police Department, where it operated under the Chief of Police, and into the office of the City Corporation Counsel. The Commission was asked whether the relocation would create conflict-of-interest problems given that the P.L.A. had had "confidential relations" with individual police officers while advising them on criminal law and procedure, and given that officers charged with misconduct are prosecuted by the Corporation Counsel's office. A second question asked whether a conflict would arise if the police later investigated a city councillor, since the P.L.A. might be privy to details of that investigation.

The Commission concluded that no ethical problem warranted delaying the merger. Although the P.L.A. described "confidential relations" with individual officers, the Commission did not see why that should follow from his duties: his client had in actuality been the city, and that would not change with his affiliation with the Corporation Counsel. To the extent he had let his duty of loyalty to the city become blurred by personal contacts with officers, that practice should not continue. Officers who approached him with personal problems whose resolution might conflict with the city's interests were to be referred to private counsel of their own choosing, and the P.L.A. had to avoid communications with individual officers that would in any way compromise his loyalty to his real client, the city itself.

On the possibility of a police investigation of a city councillor, the Commission again saw no conflict justifying keeping the two offices separate. In such a case the investigating attorney's client is the city, not the individual councillor. Any awkwardness in investigating someone who sets your salary would not be peculiar to the P.L.A. but shared by the Corporation Counsel, and a special prosecutor could be appointed if circumstances warranted. The Commission saw no more reason for the P.L.A. to resist affiliation over this remote contingency than to require the Corporation Counsel to resign to avoid the same possibility.

Currency note

This opinion was issued in 1979, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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: Who is the client of a government lawyer who advises individual employees?

A: The opinion concluded that the police legal advisor's client was the city, not the individual police officers he advised, even though he had developed personal relationships with them.

Q: What should the advisor do when an officer brings a personal matter that conflicts with the city's interests?

A: The opinion concluded such officers should be referred to private counsel of their own choosing, and the advisor must avoid communications that would compromise his loyalty to the city.

Q: Does the chance that the police might one day investigate a city councillor create a conflict?

A: The opinion concluded it did not, because the investigating lawyer's client in that situation is the city rather than the councillor, and a special prosecutor could be appointed if needed.

Background and rules framework

The opinion did not cite a numbered Maine Bar Rule. It rested on the lawyer's duty of loyalty and on identifying the lawyer's true client where a government lawyer advises individual public employees. The Commission treated the governmental entity (the city) as the client, a principle that corresponds in current practice to the organization-as-client and conflict-of-interest concepts in Model Rules 1.13 and 1.7, though the opinion itself made no such citation.

Citations and references

Rules of Professional Conduct:

• The opinion does not cite a numbered rule. It applies the general duty of loyalty and the identification of the governmental entity, rather than the individual officers, as the lawyer's client.

See also

• Maine Ethics Op. 7: DA Civil Defense vs. Prosecution
• Maine Ethics Op. 6: DA Office Recusal, Witness
• Maine Ethics Op. 33: Public Advocate Counsel Conflict

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=88452

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: June 6, 1979

Question

The Grievance Commission has been advised that in one of the larger cities, it is proposed that the position of Police Legal Advisor (P.L.A.) be transferred to the office of the City Corporation Counsel. Heretofore, the P.L.A. has been a staff position in the Police Department operating under the supervision of the Chief of Police. We are told that the P.L.A. has 'confidential relations' with individual police officers in the course of advising them on matters of criminal law and procedure. When individual officers are charged with misconduct, they are prosecuted by the Corporation Counsel's office and defended by private counsel of their own choosing.

On the basis of the foregoing, the Commission has been asked whether the relocation of the P.L.A. to the Corporation Counsel's office would create conflict of interest problems. The Commission has also been asked whether a conflict of interest would be created by the possibility that the police might at some future date initiate an investigation of one of the members of the City Council since the P.L.A., although part of the Corporation Counsel's staff, might be privy to details of the investigation.

Opinion

In the opinion of the Commission, no ethical problems will arise from the proposed transfer of the P.L.A. to the Corporation Counsel's office which would warrant delaying the merger. Although the P.L.A. indicates that he has had 'confidential relations' with individual police officers in the past, we do not perceive why this would necessarily result from performance of his duties. Despite the fact that the P.L.A. may have developed personal relationships with individual police officers, his client has in actuality been the city. This will not be changed by his affiliation with the Corporation Counsel. If he has permitted his duty of loyalty to the city to become blurred by personal contacts with individual police officers in the past, this aspect of his role should not be continued. Police officers who approach him with personal problems the resolution of which might conflict with the interests of the city should be referred to private counsel of their own choosing. Indeed, the P.L.A. must be careful to avoid communications with individual police officers which would in any way compromise his duty of loyalty to his real client - the city itself.

We also fail to see in the possibility of a police investigation of a city councillor a potential conflict of interest which would justify keeping the offices of the P.L.A. and Corporation Counsel separate. In such a case, the investigating attorney's client is the city and not the individual councillor. If there is an ethical problem about investigating one who determines the level of your salary, it would not be peculiar to the P.L.A. and would, indeed, be shared by the Corporation Counsel himself. If the circumstances warranted, a special prosecutor could be appointed to undertake the investigation. There is, in any event, no more reason that the P.L.A. should resist affiliation with the Corporation Counsel because of this remote contingency than that the Corporation Counsel should also be required to resign in order to avoid the possibility that he might someday be required to conduct such an investigation of a City Council member.