Can a town attorney who advises the police department, or members of his firm, represent criminal defendants arrested by that town's police?

Plain-English summary

The inquiry built on RPC 63, which held that Lawyer L, a county commissioner with power over law enforcement officers' hiring, firing, and salaries, should not represent criminal defendants where county officers were prosecuting witnesses, while holding (per CPR 252) that L's associates were not disqualified, since they had no influence over the officers. The committee had also approved an advisory to Attorney B, a town attorney who occasionally advised the town police department, providing that no member of his firm could represent criminal defendants if town police would be prosecuting witnesses. The inquiry asked whether, in light of CPR 252 and RPC 63, members of Attorney B's firm could represent such criminal defendants.

The opinion concluded they could not. It explained that CPR 252 and RPC 63 address a lawyer who has potential influence over an officer's salary or employment and so should not be put in the position of cross-examining that officer, the concern being that the officer might not testify freely; partners and associates without such influence are not disqualified. Attorney B's situation was different: he was not a board member with financial power over officers, but the attorney for a governing body who advised the police department and in effect represented the policemen. If he undertook to represent criminal defendants arrested by town police, he would in effect be simultaneously representing clients with adverse interests, a conflict the opinion presumed so fundamental it could not be waived by client consent, and which Rule 5.11 extended to the other members of his firm. The opinion concluded, however, that if Attorney B represented a governing body but did not represent the police department in criminal matters, neither he nor his partners would be disqualified.

Currency note

This opinion was issued in 1990, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The imputed-disqualification provision it applies (Rule 5.11) has since been renumbered and revised (the corresponding Model Rule is 1.10). 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 Treat this page as historical context, not current guidance.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 town attorney who advises the police defend people arrested by that police?

A: No. The opinion concluded that, because the town attorney in effect represents the police, defending criminal defendants arrested by them would be simultaneous representation of adverse interests, an unwaivable conflict.

Q: Does the conflict reach the town attorney's whole firm?

A: Yes. The opinion concluded that Rule 5.11 extends the disqualification to the other members of the attorney's firm.

Q: Is this the same as the commissioner situation in RPC 63?

A: No. The opinion distinguished RPC 63, where a board member's influence over officers' employment was the concern; here the disqualification flows from the town attorney actually representing the police.

Q: What if the town attorney does not handle police criminal matters?

A: The opinion concluded that if he represents the governing body but not the police department in criminal matters, neither he nor his partners is disqualified.

Background and rules framework

The opinion applied North Carolina Rule 5.11, the imputed-disqualification rule (corresponding to Model Rule 1.10), to extend the town attorney's conflict to his firm, and rested the underlying disqualification on the conflict-of-interest principle (corresponding to Model Rule 1.7) created by simultaneously representing the police and defendants they arrested. It carefully distinguished the board-member influence concern of RPC 63 and CPR 252 from the direct representation concern here.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.11 (imputed disqualification of a firm)
• MR 1.10 (imputation of conflicts); MR 1.7 (conflict of interest, current clients)

Other opinions cited:

• North Carolina RPC 63 (county commissioner cross-examining county officers)
• North Carolina CPR 252 (partners and associates of a board member not automatically disqualified)

See also

• NC Ethics Op. RPC 72: prosecutor and defendants arrested by tribal police
• NC Ethics Op. RPC 130: employment of a board member's law firm

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-73/

Original opinion text

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

Editor's Note: This opinion was originally adopted as RPC 73 (Revised).

Inquiry:

In RPC 63, decided in April 1989, the Ethics Committee discussed potential ethical restrictions imposed upon Lawyer L, who serves as a county commissioner. The Committee held, in part, that Lawyer L should not represent criminal defendants in cases where the county's law enforcement officers are prosecuting witnesses, if the commissioners are responsible for hiring, firing, promoting, or setting the salaries of the officers. CPRs 189 and 233 were cited in support of this opinion. The Committee held, however, that Lawyer L's associates would not be so disqualified, citing CPR 252.

CPR 252, decided on September 27, 1979, held that the partners and associates of an attorney who served on a governing board such as a city council were not automatically disqualified from representing a party to litigation, civil or criminal, in which a police officer of the governmental unit would be a witness, if the governing board is not directly involved in the hiring, firing or setting of salaries of the police officers of that governmental unit.

In April 1989, the Ethics Committee approved an ethics advisory provided to Attorney B, who serves as town attorney and occasionally advises members of the town police department. The advisory provided that no member of Attorney B's firm could represent criminal defendants if members of the town police would be prosecuting witnesses.

In light of CPR 252 and RPC 63, may members of Attorney B's firm represent criminal defendants in cases in which members of the town police force will be prosecuting witnesses?

Opinion:

No. CPR 252 and RPC 63 hold that an attorney who has some potential influence on the salary or employment prospects of a law enforcement officer ought not be put in the position of cross-examining that officer. The problem created by this situation is the threat that the law enforcement officer might not feel free to testify truthfully and fully in the face of such an opponent. Presumably, the lawyer's partners and associates, who are not members of the governing board, would have no influence on the law enforcement officer's salary or employment and thus, the disqualification need not extend to them.

The decision rendered in April 1989 to Attorney B and his firm addresses a different factual situation and a different ethical problem. In the problem addressed in the advisory, Attorney B is not a member of a governing board with financial power over law enforcement officers, but is the attorney for a governing body. Under the facts presented, Attorney B advises the police department and, in effect, represents the policemen. If Attorney B undertakes to represent criminal defendants arrested by town police, he is, in effect, simultaneously representing clients with adverse interests. It is presumed that the conflict created by this simultaneous representation is so fundamental that it cannot be waived by consent of the clients. Further, this disqualification is extended by Rule 5.11 to the other members of the attorney's firm. Therefore, the attorney's associates may not represent criminal defendants who were arrested by members of the police force.

If, however, Attorney B represents a governing body but does not represent the police department in criminal matters, neither he nor his partners would be disqualified from representing criminal defendants in cases where police officers are prosecuting witnesses.