Can a part-time municipal prosecutor defend private clients on charges from other jurisdictions that are tried in the same court where the prosecutor tries the municipality's ordinance cases?
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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-81-6 asked whether Ethics Memo Opinion 5/65 prohibited a part-time municipal attorney, who prosecutes ordinance violations for the municipality, from acting as defense counsel for private citizens charged with violations of other municipalities' ordinances, county ordinances, or criminal charges, where the ordinance violations he prosecutes are tried in the same court in which he defends private clients.
The committee noted that Opinion E-76-12 permits, with restrictions, a part-time city attorney to represent private clients as defense counsel in state criminal prosecutions brought by the district attorney, and that Opinion E-81-3 permits a part-time town attorney to defend a private client in ordinance violation actions brought by municipalities other than his own. It observed that neither opinion dealt with whether the part-time municipal attorney may appear and defend "in the same court," nor with whether he must appear in a court other than the one in which the municipal ordinance prosecution is heard.
The committee found that, upon a complete reading of Memo Opinion 5/65, its conclusion is contrary to the opinions expressed in E-76-12 and E-81-3. It reaffirmed those two opinions and held that Memo Opinion 5/65 should be, and was, withdrawn.
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, and 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. 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 Treat this page as historical context, not current guidance.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: Does the 'same court' rule bar a part-time municipal prosecutor from defending private clients there?
A: No. The committee found that the same-court restriction in Memo Opinion 5/65 was contrary to E-76-12 and E-81-3, and it withdrew Memo Opinion 5/65.
Q: What did the committee do with the conflicting memo opinion?
A: It reaffirmed E-76-12 and E-81-3 and held that Memo Opinion 5/65 should be, and was, withdrawn.
Q: Does this remove all limits on such defense work?
A: No. The committee reaffirmed E-76-12 and E-81-3, which permit the defense work only within their stated restrictions, including that the attorney have no professional responsibility for the prosecuting jurisdiction.
Background and rules framework
The opinion addressed the overlap between a part-time municipal prosecutor's public duties and a private defense practice, resolving an apparent conflict among earlier committee pronouncements. The committee's analysis turned on whether the location of the trial (the same court) added any restriction beyond the conflict limits set in E-76-12 and E-81-3; it found that it did not. 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
- Wisconsin Opinion E-81-3: town prosecutor defending ordinance cases from other municipalities
- Wisconsin Ethics Memo Opinion 5/65 (withdrawn by this opinion)
See also
- 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-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-81-6.pdf
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