Does a contract city attorney who prosecutes for the city have a conflict of interest in a criminal charging decision when the subject has ties to city council members?

Plain-English summary

A law firm holding the contract to act as city attorney for a city, including serving as the prosecuting authority in criminal cases, declined to file charges over the removal and destruction of campaign signs after finding insufficient evidence. The aggrieved candidate's campaign manager alleged that the city attorney had a conflict because some council members had endorsed the opposing candidate and the attorney works closely with the council. The inquirer asked who the client is, whether a conflict exists across several scenarios, and whether the form of government or the attorney's contract status changes the answer.

On the client question, the committee applied RPC 1.13: a lawyer employed by an organization represents the organization, not its constituents, and Comment [9] extends this to government organizations. So the city attorney represents the city, not the mayor, council, or individual members; the RPC 1.13(g) option to also represent constituents was not in play. On conflicts, the committee turned to RPC 1.7(a)(2), which finds a conflict where there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to others or by a personal interest. The committee found no inherent conflict in the charging scenarios described, but "great potential" for one; it could not itself evaluate the inquirer's personal interest or third-person responsibilities, so it could not say whether an actual conflict existed. If the inquirer determines a conflict does exist, he must withdraw or comply with RPC 1.7(b). The form of government matters only insofar as it bears on the attorney's personal interest, for example where the subject of the investigation is close to those with power to hire or fire the attorney, raising the risk to objectivity. The committee added that the attorney's contract status, rather than direct employment, does not change the analysis.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee gave a framework rather than a yes-or-no answer. RPC 1.13 fixes the client as the city, which means the council's political preferences do not, by themselves, make the council the attorney's client or create a conflict. Whether the attorney has a disqualifying conflict turns on RPC 1.7(a)(2)'s "significant risk" / "materially limited" standard applied to the attorney's own personal interest, which the committee said it could not assess from the outside. The committee identified the operative fact as whether the subject of a charging decision is close to those who control the attorney's hiring or firing, which would heighten the risk to objectivity; the strong-mayor versus council-manager form of government matters only through that lens. If a conflict is found, the committee pointed to the two options in the rule itself: withdraw, or proceed under RPC 1.7(b). Contract status versus direct employment does not alter the analysis.

Common questions

Q: Who is a contract city attorney's client?

A: The city. The committee applied RPC 1.13 (and Comment [9] extending it to government organizations) to conclude the attorney represents the city, not the mayor, council, or individual council members.

Q: Is there an automatic conflict when the subject of a charging decision has ties to the council?

A: No. The committee found no inherent conflict in the scenarios described, but "great potential" for one, and said it could not determine from the outside whether an actual RPC 1.7(a)(2) conflict existed.

Q: Does the city's form of government or the attorney's contract status change the answer?

A: Per the committee, the form of government matters only as it bears on the attorney's personal interest (for example, who can hire or fire the attorney), and the attorney's contract status, rather than direct employment, does not alter the analysis.

Background and rules framework

The opinion interpreted Washington RPC 1.13 (Model Rule 1.13, organization as client), including RPC 1.13(g) on also representing constituents, and RPC 1.7 (Model Rule 1.7, conflicts of interest), specifically RPC 1.7(a)(2)'s material-limitation/personal-interest test and RPC 1.7(b)'s conditions for proceeding despite a conflict. The committee used RPC 1.13 to identify the client and RPC 1.7 to frame, without resolving, the conflict question.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.13 / Washington RPC 1.13, 1.13(g) (organization as client; government organizations per Comment [9])
• Model Rule 1.7 / Washington RPC 1.7, 1.7(a)(2), 1.7(b) (conflicts of interest; material limitation by personal interest)

See also

• AL Ethics Op. 2005-01: city attorney who is also a defense attorney in city court
• CA Op. 1977-46: council-member lawyer adverse to the city
• Maine Ethics Op. 7: district attorney conflict of interest

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1613

Original opinion text

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

Advisory Opinion: 2173
Year Issued: 2007
RPC(s): RPC 1.13, 1.13(g), 1.7, 1.7(a)(2), 1.7(b)
Subject: possible conflicts of interest for a contract city attorney where a charging decision involves a person with ties to the city council

I. Facts

The Inquirer’s law firm holds the contract to act as city attorney for the city of X. The law firm performs the same functions as an in-house city attorney including acting as the prosecuting authority in criminal cases. Recently, a dispute arose over the removal and destruction of campaign signs. The campaign manager for the aggrieved candidate filed a complaint with police. After reviewing the evidence, the Inquirer determined that there was insufficient evidence to warrant the filing of criminal charges. After learning that the Inquirer did not intend to pursue criminal charges, the campaign manager alleged that the Inquirer had a conflict of interest because some members of the city council have endorsed the opponent of the aggrieved candidate. The campaign manager asserts that because the Inquirer works closely with the city council, he cannot be object in making a filing decision.

II. Questions Presented

1. Who is the Inquirer’s client?

2. Does a City Attorney have a conflict of interest in making a criminal charging decision where the subject of potential charges has a close personal relationship with some city council members?

3. Does a City Attorney have a conflict of interest in making a criminal charging decision where the subject of potential charges is affiliated with the campaign of a candidate endorsed by some council members?

4. Would it make a difference if all elected officials (mayor and entire city council) endorsed one of the candidates?

5. Does the form of government (“strong mayor” vs. “council/manager”) make a difference?

6. Does the fact that the Inquirer is a contract attorney make any difference?

III. Discussion

RPC 1.13 provides that a lawyer employed by an organization represents the organization rather than its constituent members. This rule applies to government organizations. Comment [9], RPC 1.13. Pursuant to RPC 1.13(g), a lawyer representing an organizational client may also represent constituent members of the organization. Based upon the facts presented by the Inquirer, however, it does not appear that such dual representation is at issue here. Accordingly, as city attorney, the Inquirer represents the city rather than the mayor, the city council, or individual council members.

The Inquirer’s questions regarding whether a conflict of interest exists are addressed by RPC 1.7. RPC 1.7(a)(2) provides that a conflict exists if:

There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

In the various scenarios described by the Inquirer, there is no inherent conflict of interest in the Inquirer making a criminal charging decision, but there is great potential for a conflict to arise. The Committee is not in a position to evaluate the personal interest of the Inquirer nor can the Committee gage what responsibilities the Inquirer may have to third persons. Accordingly, the Committee cannot opine as to whether an actual conflict exists. If the Inquirer determines that a conflict does exist, then he must either withdraw or comply with the requirements of 1.7(b). The form of city government is relevant to the conflict determination only insofar as it relates to the personal interest of the Inquirer. If, for example, the subject of the criminal investigation has a close relationship with the person or persons who hold the power to hire and/or fire the Inquirer, there is a greater risk that the Inquirer’s objectivity in making a charging decision will be compromised. The fact that the Inquirer represents the City pursuant to contract rather than as a direct employee of the City does not alter the above analysis.