Can a lawyer who is the city's mayor also serve as city prosecutor in a municipal court whose judge he appoints and can remove?

Plain-English summary

A member of the State Bar was the mayor of a city, drawing a salary of fifteen dollars a month. Under the charter, the mayor appointed the city attorney (whose salary was fixed by ordinance) and a municipal judge, with the charter and ordinances silent on the causes and method for removing the judge. To save the city the city attorney's salary, the mayor himself acted as city attorney, advised the city commissioners, and appeared as prosecutor in police cases in the municipal court. While an ordinance was in force, he personally received two and a half dollars for each conviction or plea of guilty; that ordinance was later repealed, and he thereafter prosecuted without compensation beyond his mayor's salary. The question was whether it was proper for him to act as city attorney, and to appear for the city in municipal-court prosecutions, while holding the office of mayor.

The Board condemned the prosecution practice. It reasoned that the inequity was apparent whether or not the mayor-prosecutor received a per-conviction fee: the municipal judge was the mayor's appointee, the power to appoint included the power to remove, and so the judge's tenure depended on the person appearing as prosecutor. While the fee arrangement existed, the prosecutor had a pecuniary interest in convictions and the judge had an interest in keeping his office; after the fee was discontinued, the judge's tenure still depended on the favor of the prosecutor. Quoting Chief Justice Taft in Tumey v. State of Ohio, the Board said any procedure offering a possible temptation to the average judge not to hold the balance nice, clear, and true denies due process. It condemned the mayor's appearing as prosecutor under these circumstances as un-American and a violation of the due process clauses, and, as to the member of the bar, as a violation of Rule 31, which requires a lawyer to uphold the honor and dignity of the profession and to improve the administration of justice. As for the mayor performing the city attorney's other duties, the Board found no question of legal ethics and expressed no opinion.

Currency note

This opinion was issued in 1934, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions, and before modern codes of judicial conduct. The roles of government lawyers, prosecutors, and the structure of municipal courts are governed today by separate provisions of current law and the Oklahoma Rules of Professional Conduct. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific principle mentioned here.

Common questions

Q: Could the mayor also serve as city prosecutor in the municipal court?

A: No. The Board condemned the practice because the mayor appointed and could remove the judge before whom he prosecuted, making the judge's tenure depend on the prosecutor.

Q: Did it matter that the per-conviction fee had been repealed?

A: No. The Board said the inequity was apparent either way; even without the fee, the judge's continued tenure depended on the favor of the mayor-prosecutor.

Q: What authority did the Board rely on?

A: Tumey v. State of Ohio, on due process where a decision-maker has a temptation not to hold the balance true, and Rule 31's duty to uphold the profession and improve the administration of justice.

Q: Did the Board address the mayor's other city-attorney duties?

A: No. It found that the performance of the city attorney's other duties did not involve a question of legal ethics and expressed no opinion on it.

Background and rules framework

The opinion applied Rule 31 of the then-current Oklahoma Rules of Professional Conduct, patterned on the ABA Canons of Professional Ethics, which required a lawyer to uphold the honor and dignity of the profession and to improve the administration of justice. It reinforced the conclusion with the due process reasoning of Tumey v. State of Ohio, treating the mayor's combined power over the judge and role as prosecutor as structurally incompatible with a fair tribunal.

Citations and references

Rules of Professional Conduct:

• Rule 31 (1929 Oklahoma Rules of Professional Conduct): a lawyer shall uphold the honor and dignity of the profession and improve the administration of justice.

Cases:

• Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437 (1927), due process and a decision-maker's temptation toward one party.

Other opinions cited:

• Oklahoma State Bar Advisory Opinion No. 8 (Vol. 25, 1931 Reports): a similar situation.

See also

• Okla. Bar Ethics Op. 24: Special Prosecutor With a Contingent Civil Claim
• Okla. Bar Ethics Op. 32: City Attorney Firm as Special Prosecutor With Civil Claims
• Okla. Bar Ethics Op. 58: Justice of the Peace Practicing Law and Collecting in His Own Court

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-70/

Original opinion text

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

Adopted May 25, 1934

A member of The State Bar is a mayor of a city and as such receives a salary of fifteen dollars per month. Under the charter, the mayor is authorized to appoint a city attorney whose salary is fixed by ordinance, and also a judge of a municipal court. The charter and ordinances are silent as to the causes for, and as to the method of, the removal of the municipal judge.

At the time the member of the Bar assumed the office of mayor an ordinance provided that the city attorney, in addition to his salary, should receive the sum of two and one-half dollars for each conviction or plea of guilty in the municipal court. The member of the Bar, in order, as he states, to save the city the expense of the salary of the city attorney, acted as city attorney and as such advised the city commissioners on legal propositions and appeared as city attorney in police cases pending in the municipal court and received personally the two and a half dollars upon each conviction or plea of guilty in that court.

Subsequently, the ordinance authorizing the payment of two and one-half dollars to the city attorney for each conviction or plea of guilty was repealed, and the city attorney now receives no compensation in addition to his salary for appearing in police court cases.

Since the passage of the ordinance last referred to the member of the Bar continues to perform the duties of city attorney including the prosecution of criminal cases in the municipal court, without compensation other than his salary as mayor. This was the situation when the request for an opinion was made.

The question is, is it proper for the member of the Bar, in question, to act as such city attorney while occupying the office of mayor and as such to appear for the city in prosecutions in the municipal court?

In response:

(1) The inequity of the situation presented is apparent whether or not the mayor–city attorney received a fee based upon conviction or not. The municipal judge is the appointee of the mayor. The power to appoint includes the power to remove. The tenure of the office of the judge was dependent upon the person who appeared as the city prosecutor. While the fee arrangement existed the prosecutor had a pecuniary interest in the result of the prosecution and the person who occupied the office of judge, in the continued tenure of his office; after the fee arrangement was discontinued, the tenure of the person in office who occupied the position of judge was dependent upon the favor of the person who appeared as city prosecutor. In Advisory Opinion No. 8, vol. 25, Reports of the State Bar for 1931, the Board had occasion to consider a similar situation. In quoting from the opinion of Chief Justice Taft in Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 it was said:

"Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to render a verdict against the defendant or which might lead him not to hold the balance nice, clear and true between the plaintiff and the defendant, denies the latter due process of law."

The practice of the member of the Bar who occupied the position of mayor of appearing as prosecutor for the city in cases pending in the municipal court, under the circumstances detailed, is condemned as being un-American and in violation of the due process of law clauses; and so far as the member of the Bar is concerned, as being in violation of Rule 31 of the rules of professional conduct which requires him to strive at all times to uphold the honor and to maintain the dignity of the profession and to improve the administration of justice.

(2) While the charter and the city ordinance quite evidently contemplate that the office of mayor and the position of city attorney should be separate and distinct, one from the other, it is not conceived that the situation presented as to the performance of the other duties of the city attorney involves a question of legal ethics. Therefore, no opinion is expressed upon that phase of the matter.