Can a part-time city or village attorney take private criminal defense cases in the same county where the district attorney prosecutes?

Plain-English summary

Opinion E-76-12 addressed whether a city attorney could represent private clients as defense counsel in state criminal charges and Motor Vehicle Code violations brought by the district attorney of the same county. After reviewing its preliminary opinion, several American Bar Association opinions, and the Wisconsin Supreme Court decisions in Karlin v. State and Hebel v. State, the committee concluded that it would not be improper for a part-time city or village attorney, who ordinarily handles the municipality's traffic and ordinance cases, to accept such private clients, with certain exceptions.

The committee relied on ABA Informal Opinion 1045, which reasoned that ordinance violations in which a municipal attorney acts as prosecutor are entirely different in character from the criminal charges in which he would act as defense counsel; that the criminal charges do not involve the city, its ordinances, or its officials; that the investigating officers in the prosecution and the defense are ordinarily different; and that the city attorney's defense work has no impact outside the city's limited jurisdiction. Building on that reasoning, the committee took the position that if the municipal attorney had no responsibility for prosecuting or investigating the case in his official capacity, the incident did not arise in the municipality, and the enforcement officers of that municipality were not involved in investigating the criminal conduct, the part-time municipal attorney may accept the defense. The committee implied that the attorney would have the municipal authority's approval to handle private matters.

The committee concluded there is no representation of conflicting interests within the meaning of the Disciplinary Rules under Canon 5, with the noted exceptions, because the part-time municipal attorney is not in a position where he would have to contend for the city on something his duty to a private client would require him to oppose.

Currency note

This opinion was issued in 1976, 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 Canon 5 Disciplinary Rules. The current counterpart is SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts of interest). 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 part-time city attorney also take private criminal defense cases?

A: Yes, within limits. The committee concluded that a part-time municipal attorney who ordinarily handles only the city's traffic and ordinance cases may defend private clients on criminal or state motor vehicle charges in the county courts.

Q: What disqualifies the city attorney from a particular defense?

A: Any role in the matter for the municipality. The committee carved out cases the municipal attorney had responsibility for prosecuting or investigating, cases that arose in the municipality, and cases where that municipality's enforcement officers were involved in the investigation.

Q: Why did the committee find no conflict of interest?

A: It reasoned, following ABA Informal Opinion 1045, that municipal ordinance prosecution and private criminal defense are different in character, that the criminal charges do not involve the city or its officials, and that the attorney is not in a position to have to oppose a private client on the city's behalf.

Background and rules framework

The opinion applied the former Code's conflict-of-interest provisions under Canon 5, together with ABA Informal Opinion 1045 and the Wisconsin Supreme Court's decisions in Karlin v. State and Hebel v. State, to a part-time municipal attorney's private defense work. The current counterpart is SCR 20:1.7 / Model Rule 1.7 (concurrent conflicts of interest).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts of interest); former Code Canon 5 Disciplinary Rules

Cases:

• Karlin v. State, 47 Wis. 2d 452 (1970)
• Hebel v. State, 60 Wis. 2d 325 (1973)

Other opinions cited:

• ABA Informal Opinion 1045: municipal ordinance prosecution distinguished from private criminal defense

See also

• WI Ethics Op. E-76-11: An Assistant DA's Partners and Criminal Defense
• WI Ethics Op. E-81-3: Town Prosecutor Defense Work
• WI Ethics Op. E-90-5: City Attorney as Defense Counsel
• WI Ethics Op. E-86-14: City Attorney Prosecuting a City Employee

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-76-12.pdf