Can a lawyer who serves on a city council represent private clients in that city's municipal courts?

Plain-English summary

The inquiry asked whether an attorney who is also a member of a city council may practice before the municipal courts of the city he serves. The opinion assumes the councilor has not agreed to abstain from voting on matters relating to the municipal courts.

The committee concluded the conduct is contrary to the Oklahoma Rules of Professional Conduct. It reasoned that the municipal judges are selected by the city council, which also approves the court budget, so a councilor appearing before a municipal judge on a client's behalf inevitably exerts influence on that judge regardless of the councilor's intent. Rule 3.5(a) bars a lawyer from seeking to influence a judge except as permitted by law or the rules of a tribunal; the committee acknowledged that mere council membership is arguably not an affirmative act done with intent to influence, but found the inevitable influence comparable in effect to the proscribed conduct, and the small size of city councils and municipal benches in Oklahoma makes the resulting pressure on the judge unavoidable.

The committee added that Rule 1.11 (current and former public officers) and its comment, which prevent a lawyer from exploiting public office for a private client's advantage, reinforce the conflict analysis under Rules 1.7 and 1.9: the councilor has influence over the judge's employment and compensation, would often appear against the city prosecutor, and may have access to confidential city information unavailable to other lawyers. The committee cited its own earlier Opinions 257, 282, and 200, and aligned its conclusion with the New Mexico Bar's Advisory Opinion 2002-1 and the New Hampshire Bar's Formal Opinion 1988-89/12, both reaching the same result.

In practice

The committee concluded that, under the Oklahoma rules as they stood at the time of the opinion, a lawyer who sits on a city council that selects the municipal judges, sets their compensation, and approves the court budget may not appear before those municipal courts on behalf of private clients. The opinion frames the bar as resting on the inevitable influence on the judge (Rule 3.5(a)) together with the conflict and confidential-information concerns of Rules 1.7, 1.9, and 1.11. The opinion did not address a councilor who has agreed to abstain from all votes affecting the municipal courts, treating that as outside its scope.

Common questions

Q: Can a lawyer who is a city council member appear in that city's municipal court for a client?

A: No. The committee concluded that a councilor's appearance before the municipal courts of the city he serves violates the ethical principles of the Oklahoma rules, because the council controls the judges' selection, compensation, and budget.

Q: Does it matter that the lawyer never intends to use council influence?

A: No. The committee reasoned the influence is inevitable regardless of intent, because the council can retain or remove the judge and set the judge's compensation; Rule 3.5(a) reaches conduct that seeks to influence a judge, and the situation creates too much potential for improper influence.

Q: Which conflict rules does the opinion rely on?

A: The committee invoked Rule 1.11 (and its comment about exploiting public office for a private client), and concluded the arrangement could violate Rules 1.7 and 1.9 because the councilor often appears against the city and may have access to confidential city information.

Q: Does the opinion address the lawyer-councilor's whole practice?

A: No. It addresses appearing before the municipal courts of the city the lawyer serves. The committee expressly declined to address a councilor who abstains from all votes affecting the municipal courts.

Background and rules framework

The opinion interprets Oklahoma RPC 3.5(a) (a lawyer shall not seek to influence a judge except as permitted by law or tribunal rules), Rule 1.11 (special conflict rules for current and former public officers and employees), and Rules 1.7 and 1.9 (concurrent and former-client conflicts). These track the like-numbered Model Rules. The committee read the rules together with its pre-ORPC opinions on lawyers holding public office and with out-of-state opinions reaching the same conclusion.

Citations and references

Rules of Professional Conduct:

• Oklahoma RPC 3.5(a) / Model Rule 3.5(a): a lawyer shall not seek to influence a judge except as permitted by law or the rules of a tribunal.
• Oklahoma RPC 1.11 / Model Rule 1.11: special conflict rules for current and former public officers and employees.
• Oklahoma RPC 1.7 and 1.9 / Model Rules 1.7 and 1.9: concurrent and former-client conflicts of interest.

Other opinions cited:

• Okla. Bar Ass'n Ethics Ops. 200, 257, 282, and 305 (lawyers holding public office; Op. 305 adopted Dec. 1992, withdrawn Nov. 1994).
• ABA Informal Op. 855 (public officers' primary duty to perform office honestly and impartially).
• New Mexico Bar Advisory Op. 2002-1 (lawyer-official appearing before municipal tribunals subject to the lawyer's oversight or fiscal influence).
• New Hampshire Bar Formal Op. 1988-89/12 (lawyer who is a city council member may not appear before the council or bodies it appoints).

See also

• Ala. Bar Ethics Op. 2000-03: Former city attorney representing a party adverse to the city

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-322/

Original opinion text

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

Inquiry:

May a city councilor who is also an attorney practice before the municipal courts of the city he is serving?

Opinion:

It is contrary to the ethical principles embodied in the Oklahoma Rules of Professional Conduct for an attorney who is a member of the city council to practice before the municipal courts of that city.

Under the facts presented, municipal court judges are selected by the city council. The city council also approves the city budget, including the budget for the administration of the municipal courts. This opinion approaches the issue on the assumption that, as councilor, the lawyer has not agreed to abstain from voting on all matters relating to the municipal courts. Abrogation of the lawyer’s duties and responsibilities as a city councilor in order to enable the lawyer to pursue matters in his or her own personal interests is not something that this panel will address. Such conduct should be evaluated in light of the ethics rules of the city, if any.

A city councilor appearing before a judge of the municipal court on behalf of a client will inevitably exert influence on that judge regardless of the councilor’s intent. The city council is a relatively small legislative body with the power to retain or remove the judge and to set the compensation and other benefits of the judge. Rule 3.5(a) of the Oklahoma Rules of Professional Conduct (“ORPC”) states that a lawyer shall not “seek” to influence a judge except as permitted by law or the rules of a tribunal. While simply being a member of the city council arguably is not an affirmative act committed with an intent to influence a judge, the inevitable influence that does result simply from the councilor’s practice before the court could certainly be comparable in effect to the proscribed conduct.

The number of the members of a city council and the number of municipal judges serving cities in the State of Oklahoma are both small. Thus, each interaction will result in an inevitable pressure or tension on the judge. It is assumed that in most situations, both councilor-attorney and judge will be able to rise above this pressure or tension. Nevertheless, the mere situation creates too much potential for an improper influential effect.

Rule 1.11 of the ORPC sets forth the specific restrictions on the activities of lawyers who are either former or current public officers or employees. While not specifically addressing this precise issue, the comment to Rule 1.11 states that this rule “prevents a lawyer from exploiting public office for the advantage of a private client.” It notes that a lawyer employed by a government is still subject to the conflicts of interest provisions of Rule 1.7 and the requirements regarding confidential and privileged information in Rule 1.9. The comment asserts that a lawyer employed by a public body owes the same duties to that body that it would owe as a lawyer representing the body and adds:

“Where the successive clients are a public agency and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer’s professional functions on behalf of the public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client’s adversary obtainable only through the lawyer’s governmental service.”

Accordingly, the councilor-attorney who has influence regarding the employment and financial benefits of a judge has a conflict of interest by appearing before that same judge on behalf of a private client. In addition, the councilor-attorney would most often be appearing against the city prosecutor or other representative of the city. The councilor-attorney may have access to confidential city information not available to other lawyers. This could result in a violation of ORPC 1.7 and 1.9.

Oklahoma Bar Association Ethics Opinion 257, quoting ABA Informal Opinion No. 855 states, “[g]enerally speaking, any persons in public office, including attorneys, have as their primary duty that of performing the functions of the office in a wholly honest, impartial, and ethical manner.” Opinion 257 further states that because such lawyers are before the public and being compensated by public tax money, “they must avoid not only all evil but the mere appearance of evil.”1

In addition, Oklahoma Bar Association Ethics Opinion No. 282 states that it is not ethically proper for an attorney to practice law before various municipal boards, commissions, courts, and council when the attorney shares offices and associates on a number of cases with another attorney who is employed by the city in question as an assistant city manager. While these opinions were all rendered prior to the time of the adoption of the ORPC, the principles of the prior rules in this regard are consistent with the principles with the ORPC.2

This same improper influence, conflicts of interest, and confidential information concerns were addressed by the New Mexico Bar Association in its Advisory Opinion 2002-1, which stated, “[a] lawyer should refrain from representing clients before municipal tribunals over which the lawyer as a public official has direct oversight or fiscal influence. The lawyer’s obligations as a city councilor would not necessarily create an impermissible conflict with representation of clients adverse to the municipality, but may be so problematic that the best course of action likely will be to refrain from such representation.”

Similarly, the same conclusion was reached by a number of other state bar associations. For example, in New Hampshire Bar Association Ethics Committee Formal Opinion #1988-89/12, relying on the New Hampshire version of Rule 1.11, states that “[a] lawyer who is also a member of a city council is clearly a lawyer-official who may not appear before the city council nor before any body whose members have been appointed by the city council.” This opinion adds that under Rule 1.7 the lawyer-official would be “precluded from representing a client in litigation involving the city . . . due to the lawyer-official’s responsibilities to a ‘third person’, the city, or by the lawyer-official’s own political interests.”

In conclusion, a member of the city council who appears before the municipal courts on behalf of a private client violates the ethical principles embodied in the ORPC that prohibit undue influence, conflicts of interest, and compromised confidential information.

1. Virtually the same issue was decided under the ORPC in Oklahoma Bar Association Ethics Opinion No. 305. This opinion, which opined that the elected official should not represent clients in matters pending before the municipal courts, was adopted in December of 1992 but was then withdrawn in November of 1994.

2. A very similar result was reached in Oklahoma Bar Association Ethics Opinion 200.