Can a part-time town attorney who prosecutes ordinance violations defend clients in prosecutions brought by other municipalities?
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This page answers the general question as of 1981. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion E-81-3 asked whether a part-time town attorney whose duties include prosecuting violations of his own town's ordinances may defend a client in prosecutions brought by municipalities other than the one he represents. The committee answered yes, within the limitations of the opinion.
The committee drew on Opinion E-76-12, which had addressed whether a part-time city attorney could defend private clients against state criminal charges (arising out of motor vehicle code violations) brought by the district attorney of the same county. In E-76-12 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 his municipality, and the investigating or enforcement officers from his municipality were not involved, then the part-time municipal attorney might accept the defense, on the assumption that he had the approval of the municipal authority to do so.
The committee said the facts presented in E-81-3 were not identical, but that within those same limitations the answer was the same. It saw no conflict of interest in defending a client for an ordinance violation brought by a neighboring town, as long as that town was one to which the attorney had assumed no professional responsibility.
Currency note
This opinion was issued in 1981, 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 conflict-of-interest principles in force at the time. Conflicts of this kind are now analyzed under SCR 20:1.7 / Model Rule 1.7. A later opinion, E-90-5, modified E-76-12 and E-81-3 to require informed written consent under SCR 20:1.7(b) where city police officers may be witnesses against the defense client. 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 Treat this page as historical context, not current guidance.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 town prosecutor defend a private client in a case brought by a different town?
A: Yes, within limits. The committee concluded that defending an ordinance prosecution brought by another municipality is permissible as long as the attorney had assumed no professional responsibility to that other town.
Q: What conditions did the committee attach?
A: Drawing on E-76-12, the committee required that the attorney have no responsibility for prosecuting or investigating the case, that the incident not arise in his own municipality, that his municipality's enforcement officers not be involved, and that he have the approval of his municipal authority.
Q: Did a later opinion change this?
A: Yes. Opinion E-90-5 modified E-76-12 and E-81-3, requiring informed written consent under SCR 20:1.7(b) where the defense involves city police officers as potential witnesses.
Background and rules framework
The opinion applied conflict-of-interest principles to a part-time government lawyer who also maintains a private defense practice. The committee's analysis turned on whether the lawyer had any professional responsibility to, or involvement with, the prosecuting municipality. The current counterpart is SCR 20:1.7 / Model Rule 1.7, governing concurrent conflicts of interest.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.7 / SCR 20:1.7 (concurrent conflicts of interest)
Other opinions cited:
- Wisconsin Opinion E-76-12: part-time city attorney defending state criminal charges
See also
- WI Ethics Op. E-81-6: Municipal Attorney 'Same Court' Restriction
- WI Ethics Op. E-90-5: City Attorney as Defense Counsel
- WI Ethics Op. E-80-20: Representation For and Against a County
Source
- Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
- Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-81-3.pdf
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