Can an assistant district attorney also serve on the county school board, given that criminal fines and forfeitures are paid to the board?

Plain-English summary

Attorney A was an assistant district attorney and a member of a county board of education. Because fines and forfeitures in criminal cases are payable to the county board of education, Attorney A was concerned about the conflict arising during plea negotiations, since accepting pleas to lesser charges, dismissing charges in exchange for pleas, or arguing for a specific bond or its forfeiture all affect the money going to the school system. The inquiry asked whether Attorney A could prosecute cases while serving on the school board.

The opinion concluded that Attorney A could. It reasoned that, although the school board's interest in maximizing fine-and-forfeiture revenue might in theory conflict with the State of North Carolina's interest in procuring just results in criminal cases, as a practical matter any such conflict would be de minimis and would not materially limit Attorney A's representation of the State, citing Rule 5.1(b). As in the companion analysis, the committee noted that fines and forfeitures make up only a minute portion of public-school funding, and that county appropriations for school administration often decrease dollar-for-dollar as collections increase, so the board gains no net benefit from extraordinary collections.

Currency note

This opinion was issued in 1991, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The conflict provision it applies (Rule 5.1(b)) has since been renumbered and revised. 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 Treat this page as historical context, not current guidance.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 an assistant DA serve on the school board that receives criminal fines?

A: Yes. The opinion concluded that any conflict between the board's revenue interest and the State's interest in just results is de minimis and would not materially limit the prosecutor's representation, citing Rule 5.1(b).

Q: Doesn't plea bargaining affect the money going to the schools?

A: The opinion acknowledged that pleas, dismissals, and bond decisions affect fine-and-forfeiture revenue, but concluded the effect on school funding was practically insignificant, so the conflict stayed below the materiality threshold.

Q: How does this compare to the public-defender version?

A: The committee reached the same de minimis conclusion for a public defender on the school board in RPC 105; here it applied that reasoning to a prosecutor representing the State.

Background and rules framework

The opinion applied North Carolina Rule 5.1(b), which barred representation materially limited by the lawyer's other responsibilities or interests unless the lawyer reasonably believed it would not be adversely affected (corresponding to Model Rule 1.7). The analysis turned on the practical insignificance of fine-and-forfeiture revenue to the school board, which kept any conflict with the prosecutor's duty to the State below the materiality threshold.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 5.1(b) (representation materially limited by other responsibilities or interests)
• MR 1.7 (conflict of interest, current clients)

See also

• NC Ethics Op. RPC 105: public defender serving on the school board
• 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-95/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 95 (Revised).

Inquiry:

Attorney A is an assistant district attorney and a member of a county board of education. Fines and forfeitures in criminal cases are payable to the county board of education. Attorney A is concerned about his dual roles as prosecutor and board member and the possible conflict that arises during the negotiation of pleas. Accepting pleas to lesser charges, or dismissing charges in exchange for pleas to other charges usually has an effect on the fine imposed; and arguing before the court for a specific bond or forfeiture of that bond in other situations also affects monies going to the school system.

May Attorney A prosecute cases while serving as a member of the school board?

Opinion:

Yes. Although the interest of the school board in realizing maximum revenue from fines and forfeitures might, as a theoretical matter, conflict with the interest of the State of North Carolina in the procurement of just results in criminal cases, as a practical matter any such conflict would be de minimis and would not materially limit Attorney A's representation of the state. Rule 5.1(b).

In making this determination, the committee notes that statistics show that funds realized from the collection of fines and forfeitures constitute only a minute portion of the total funding of public schools in North Carolina. The committee is also advertent to the fact that in many cases county appropriations for school administration are decreased as the collection of fines and forfeitures increases on a dollar-for-dollar basis so that there is no net benefit to the local school board from extraordinary collections of fines or forfeitures.