Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct

Date of Opinion: 09/25/2001

Opinion Number: 01-03

Title: CITY ATTORNEY: DEFENSE BY

Opinion: In your letter you state that you are a sole practitioner and that you also serve as a part-time city attorney for the cities of __________ and ____________. Your duties as city attorney include prosecution of municipal ordinance violations. In your private practice you occasionally are court-appointed or privately retained to represent defendants facing criminal charges initiated or supported by the police departments of the cities you represent. The defendants in these cases are charged under state—not city—law, and you have no involvement in any discussions or decisions to initiate the prosecutions.

In Formal Opinion 96–24 the Board concluded that acceptance of similar cases by a part-time city attorney or assistant city attorney would be permissible absent actual conflict. You ask whether the recent cases of State v. Watson, 620 N.W.2d 233 (Iowa 2000) (“Watson”), and Atley v. Ault, 191 F.3d 865 (8th Cir. 1999) (“Atley”), would change the Board’s opinion.

In Watson the Iowa Supreme Court reversed Watson’s conviction of murdering his father, holding that the trial court erred in failing sua sponte to hold a hearing on whether his trial counsel was burdened with a conflict of interest based on counsel’s representation of both Watson and a key prosecution witness. The Court noted:

Basically, “a conflict exists when an attorney is placed in a situation conducive to divided loyalties.”

Smith v. Lockhart

, 923 F.2d 1314, 1320 (8th Cir. 1991);

accord State v. Atley

, 564 N.W.2d 817, 834 (Iowa 1997) (Lavorato, J., dissenting). We think that, under this standard, an actual conflict of interest existed in the present case.

Unlike the joint representation of codefendants, where there may be a benefit to preserving a united defense, in the case of dual representation of the defendant and an adverse witness, there is no benefit to common representation. To the contrary, the potential for less zealous representation of the defendant is obvious.

620 N.W.2d at 23. The Court concluded that Watson’s attorney had an actual conflict. In particular, the Court noted the conflict between preserving confidences of a client-witness and effectively cross-examining that witness. Id. at 239-41.

In Atley the Eighth Circuit granted a petition for writ of habeas corpus, holding that an Iowa trial court had improperly failed to conduct an inquiry regarding a motion to withdraw, made on the eve of trial, by a defense attorney who was to begin employment with the Scott County Attorney’s Office within two weeks. The Eighth Circuit specifically mentioned the trial court’s failure to ascertain whether counsel “would be able to vigorously cross-examine the very people with whom he would be working closely….” Id. at 872. Because the trial court’s failure to conduct a detailed inquiry was itself ground for habeas corpus relief, the Eighth Circuit found it unnecessary to reach the question whether “an actual conflict of interest existed that required the appointment of new counsel for petitioner.” Id. at 872 n. 5.

The facts in Watson are not identical to your situation, because you do not represent the prosecution witnesses (the police officers); rather, you represent their employer (the cities). Nevertheless, similar 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 a leading commentator on ethics points out:

[A] part-time prosecutor in a small town might be reluctant to cross-examine or criticize police officers, on whose testimony he or she relies in prosecuting cases, and so should be disqualified from defending criminal cases in which they may be witnesses.

C. Wolfram Modern Legal Ethics § 8.9, at 455 (West 1986). See Illinois State Bar Association Opinion No. 90-34 (for part-time city attorney to avoid conflict in representation of defendants, “[t]he key is not to represent clients charged with violation of the City ordinances or charged with State violations initiated or supported by that City’s Police Department.”) (emphasis added); Missouri Opinion 2000/200 (permitting municipal prosecutor to defend municipal cases in other municipalities “provided no law enforcement officers from the lawyer’s municipality were involved”). See also South Carolina Opinion 93-22 (lawyer retained by county to prosecute criminal cases brought by highway patrol and sheriff’s office may represent defendants in county’s municipal courts since municipal charges would be brought only by municipal police officers).

In light of the foregoing and upon reconsideration of Formal Opinion 96-24, it is the opinion of the Board 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.

Opinion 96-24 hereby is rescinded in fact situations occurring after this date.