Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct
Date of Opinion:
06/08/2004
Opinion Number:
04-10
Title:
CONFLICTS – ATTORNEY COUNCILMAN ENGAGING IN CRIMINAL DEFENSE
Opinion:
You are an assistant city attorney and ask whether an attorney who is a city councilman may ethically represent a criminal defendant charged under state law if city police officers are involved in the arrest and may be called as witnesses. You describe possible problems:
“. . . because the attorney must interact with the officers whom he is cross-examining, needs to maintain a working relationship with the police department (over which he is involved with budgets, hiring and salaries), and that an improper appearance might arise if it appears that the outcome of a case resulted from the councilman’s special influence with the officers. . . .”
Ethical rules which have an impact on this situation include:
1. DR 5-101(A):
Except with the consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of the lawyer’s professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests.
2. EC 5-1:
The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of the client and free of compromising influences and loyalties. Neither personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute a lawyer’s loyalty to a client.
3. EC 5-2:
A lawyer should not accept proffered employment if the lawyer’s personal interests or desires will, or there is reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client.
4. DR 8-101(A)(2): “A lawyer who holds public office shall not . . . [u]se a public position to influence, or attempt to influence, a tribunal to act in favor of the lawyer or of a client.”
5. EC 8-8:
Lawyers often serve as legislators or as holders of other public offices. This is highly desirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. A lawyer who is a public officer, whether full or part-time, should not engage in activities in which personal or professional interests are or forseeably may be in conflict with official duties.
6. EC 9-6:
Every lawyer owes a solemn duty . . . to conduct oneself so as to reflect credit on the legal profession and to inspire the confidence, respect, and trust of clients and of the public; and to strive to avoid not only professional impropriety but also the appearance of impropriety.
As you mention in your opinion request, two earlier opinions of the Board generally condone the representation you question. Thus, in Opinion 70-14, the Board stated:
“This is in response to your request for an opinion as to whether it would be proper for you, as an elected member of the City Council, to defend a traffic charge brought under the State Code where the complaining witness is a city policeman.
This opinion presumes the continuation of your practice of not handling any traffic cases arising under the city ordinances, as you indicate you have been doing.
It is the opinion of the Committee that such action on your part would not be improper.”
A subsequent opinion expressly disapproved of a councilman’s representation of defendants charged under city ordinances, stating, “If [the city councilman] were to represent defendants charged under city ordinances, there would be conflict in his representation of interests adverse to those of the city.” Opinion 71-2. The opinion went on, however, to give qualified approval to the councilman’s representation of defendants under state charges, even though it would involve cross-examining city police officers.
Developments in the law since 1971 suggest that Opinions 70-14 and 71-2 should be reconsidered. In People v. Municipal Court of San Diego, 69 Cal. App. 3d 714, 138 Cal. Rptr. 235 (1977), the court affirmed disqualification of a lawyer/city councilman, stating:
“We agree it is better practice in general for city councilmen to avoid representing defendants in criminal actions which are prosecuted by the city attorney and/or which involve San Diego Police Officers as witnesses. Moreover, in the circumstances of this particular case, we cannot say the superior court abused its discretion in disqualifying Mr. Morrow from defending Wolfe on the misdemeanor charge. The Supreme Court made clear . . . that the right of an accused to retain defense counsel of his choice is not absolute, there being other values of substantial importance which may also demand recognition. . . . One such value is the preservation of public confidence in the integrity and impartiality of our criminal justice system, and here it should prevail. While the California Rules of Professional Conduct do not expressly prohibit members of the bar in general from accepting employment which in fact involves no conflict of interest but which might, to the layman, appear to be improper, an ethics committee of the American Bar Association has stated: “If the (legal) profession is to occupy that position in public esteem which will enable it to be of the greatest usefulness, it must avoid not only all evil but likewise avoid the appearance of evil.” 69 Cal. App. 3d at 719-20, 138 Cal. Rptr. at 238.
Shortly after that decision, the California State Bar’s Standing Committee on Professional Responsibility and Conduct released Formal Opinion No. 1977-46 on the issue, “May an Attorney-Council Member Represent Clients in Civil or Criminal Matters in which the City He Serves as a Council Member Has an Adverse Interest or Position?” While this topic is broader than the question under consideration, some of the discussion on potential conflicts is pertinent here:
“Upon examination, the areas of potential (if not actual) conflict and impropriety are obvious and substantial. In defending a criminal action, the attorney may be reluctant to engage in complete or abrasive cross-examination of city police officers who repeatedly serve as key prosecution witnesses for the city. The attorney might be tempted to soften or avoid criticism of local police conduct which should properly be stressed in the case he was defending. . . . Finally, police officers or other material witnesses employed by the city and subject to control or influence by the council may be tempted to slant their testimony in favor of the council member’s client.” 1977 WL 15964.
More recently, our own Supreme Court has expressed concern with situations involving the appearance of impropriety. Thus, in Committee on Professional Ethics v. Liles, 430 N.W.2d 111 (Iowa 1988), two part-time assistant county attorneys shared offices in their private law practices, although they were neither partners nor associates. On two occasions, one of them became involved on the opposite side of controversies in which the other had responsibility as assistant county attorney. Finding that “there was no clear and convincing proof that Liles was involved in any actual conflict,” the court decided that “The public’s interest in guarding against even an appearance of impropriety can be adequately served here by an admonition.” 439 N.W. 2d at 112-13. It concluded:
“It was ill advised for Liles to continue to represent either client in this complaint after learning that another prosecutor had taken official action against opposing parties. Attorney Liles is admonished that he must scrupulously guard against professional acts in which it might appear that his clients could gain personal advantage by reason of his public office.” 439 N.W.2d at 113.
Citing Liles and EC 9-6 to the effect that lawyers must “strive to avoid not only professional impropriety but also the appearance of impropriety,” the Iowa Supreme Court also stated the following when ruling on an opinion of the Board dealing with a lawyer serving as a city planning commissioner:
“The [opinion’s] emphasis on “adverse positions” . . . addresses only an attorney’s conflicting loyalties when acting as a public servant as well as a private advocate. The opinions overlook the real potential for public misunderstanding and mistrust when attorneys serve in those dual roles. Whether the city’s interest coincides or conflicts with that of a planning commissioner client seems to us of little relevance insofar as the interest of the public is concerned. The important thing from the standpoint of public perception is the relationship existing between the attorney, the client, and the municipal body. What must be scrupulously guarded against is conduct giving the appearance that clients stand to gain advantage by reason of the attorney’s public office.” Opinion 91-49 (emphasis added).
Finally, in Opinion 01-3, this Board reconsidered an earlier opinion and held that “it would be improper for a city attorney to represent a defendant in a criminal proceeding initiated or supported by that city’s police department.” The Board noted:
“. . . concerns are present in that, as city attorney, you must interact with the officers whom you will be cross-examining on behalf of criminal defendants. Even if such cross-examination would not involve disclosure of municipal confidences or secrets, the need to maintain a working relationship with the officers may restrain your zeal in cross-examination. Or, if the defendant is acquitted or receives some other favorable disposition, an appearance may arise that the outcome of the case resulted from your special influence with the officers.”
As you note, those same concerns are present here, although to a lesser extent.
It is still highly desirable for lawyers to hold public office. Given the increasing number of lawyers in Iowa since 1971, however, it is no longer necessary that they be available to take cases which may appear improper to the public because of the possibility of conflicting interests. Preserving the public’s confidence in the integrity of the legal profession and the criminal justice system is more important. Therefore, it is the opinion of the Board that it would be improper for a city councilman to represent a criminal defendant charged under state law if city police officers are involved in the arrest and may be called as witnesses.
Opinion 70-14 is hereby rescinded with respect to fact situations occurring after this date. To the extent inconsistent herewith, Opinion 71-2 is also so rescinded.