Can a lawyer who serves as a city council member or county supervisor represent private clients in suits involving the city or county?

Plain-English summary

Opinion E-75-25 took up three questions about lawyers who hold elective public office: whether a city council member may represent a defendant in a case where the city is plaintiff; whether a county supervisor may represent a private client against the county; and whether an alderman or supervisor who also sits on the county personnel committee may defend a criminal action prosecuted by the district attorney's office. The committee applied Canons 5, 8, and 9, in particular DR 5-101(A) and DR 5-105 (employment impairing independent judgment), DR 8-101 (no use of public office for special advantage), and DR 9-101(B) and (C) (avoiding even the appearance of impropriety). It noted the ABA had not addressed lawyer-legislators as directly as municipal attorneys, citing ABA Formal Opinion 306 and Informal Opinion 1182, which leave regulation of a lawyer's legislative conduct largely to local law.

On the first question, the committee reiterated its earlier Informal Opinion E-1973 that a lawyer-official must examine each private retainer case-by-case, assess his responsibility to the public and the client, and consult the client about potential adverse interests before deciding. DR 9-101(B) may bar private representation that involves an attack on the validity of an ordinance for which the council member had "substantial responsibility" (an important, material degree of involvement, per ABA Opinion 342). Routine defense against ordinances the attorney did not significantly participate in is not flatly prohibited, but the committee cautioned against frequent acceptance of such cases, since the duty to advocate would eventually conflict with the duty of impartial consideration of matters before the council and could jeopardize public confidence.

On the second question, the committee said that if the private action involves a claim against the county, or a defense against a county condemnation action, representation would be improper, citing sec. 59.76, Stats. (claims against a county presented first to the county board) and prior opinions. On the third, the committee said that so long as the attorney-supervisor does not set the salary of the decision-making tribunal, defending a criminal action does not automatically present an ethical question, though the supervisor would violate the spirit of DR 8-101(A) by attempting to influence the district attorney for personal gain.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canons 5, 8, and 9, including DR 5-101(A), DR 5-105, DR 8-101, and DR 9-101(B)-(C). The current counterparts include SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts), SCR 20:1.11 / Model Rule 1.11 (current and former government officers), and SCR 20:8.4 / Model Rule 8.4 (misconduct). 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 city council member defend a client the city is suing?

A: Under this opinion, it depends. The committee said the lawyer must review each retainer case-by-case; DR 9-101(B) may bar a defense attacking an ordinance the member had substantial responsibility for, while routine matters he did not significantly handle are not flatly prohibited but should not be accepted frequently.

Q: Can a county supervisor represent a private client against the county?

A: No, in a claim against the county or a defense to a county condemnation action. The committee said such representation would be improper, citing sec. 59.76 and the obvious conflicts or apparent conflicts.

Q: Can a personnel-committee supervisor defend a criminal case prosecuted by the DA?

A: Generally yes, so long as the supervisor does not set the salary of the decision-making tribunal; but he would violate the spirit of DR 8-101(A) by trying to influence the district attorney for personal gain.

Background and rules framework

The opinion applied the former Code's Canons 5, 8, and 9 (conflicts, use of public office, and appearance of impropriety) to lawyers serving in municipal and county elective office, distinguishing matters by the official's degree of responsibility. The current counterparts include SCR 20:1.7 / Model Rule 1.7 (conflicts), SCR 20:1.11 / Model Rule 1.11 (government officers), and SCR 20:8.4 / Model Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts of interest); former Code DR 5-101(A), DR 5-105
• Model Rule 1.11 / SCR 20:1.11 (current and former government officers); former Code DR 9-101(B), (C)
• Model Rule 8.4 / SCR 20:8.4 (misconduct); former Code DR 8-101(A)

Statutes:

• Wis. Stat. § 59.76 (claims against a county presented first to the county board)
• Wis. Stat. § 19.45(11)(c) (municipal official ethics codes)

Other opinions cited:

• ABA Formal Opinion 306 (1962); ABA Formal Opinion 342 (1975) ("substantial responsibility"); ABA Informal Opinion 1182 (1971)

See also

• WI Ethics Op. E-76-2: Attorney-Legislator Representing Clients Before State Agencies
• WI Ethics Op. E-86-12: Lawyer-Legislator Representing Clients Against Same-Unit Employees
• WI Ethics Op. E-81-6: Municipal Attorney Same-Court Restriction

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-75-25.pdf