Opinion #29. County Commissioner-Lawyer vs. District Attorney

Issued by the Professional Ethics Commission

Date Issued: February 4, 1982

Question

The Chairman of a Board of County Commissioners is an attorney in active practice in the county in question. His practice includes representation of defendants in criminal actions, some of which will have been initiated as a result of investigations conducted by the Sheriff’s office or arrests made by deputies of the Sheriff. He has been involved in civil litigation in which the District Attorney is an adverse party. The County Commissioners have certain authority over the budget of the Sheriff and the District Attorney. The District Attorney, who has raised the questions addressed by this opinion, states, “Because this attorney is an adversary in these matters and at the same time is my client on the County Commission and has decision‑making authority over my budget, I feel uncomfortable in representing both the State in these criminal matters and the county commission in other matters.” The District Attorney has asked for our opinion “as to any conflicts of interest in the situation outlined above.”

Opinion

The facts set forth by the inquiring attorney do not, in our opinion, show any situation that would require the District Attorney to withdraw from any civil or criminal case. Contrary to the suggestion in the letter of inquiry, the District Attorney does not represent or counsel any one County Commissioner. The District Attorney is required, by 30 M.R.S.A. § 501, to represent counties in the prosecutorial district as governmental subdivisions. To the extent this involves or requires representation or counseling of the Commissioners, it is representation and counseling of the Commissioners as a collegial body in their official capacity, certainly not as private individuals. Moreover, in prosecuting clients of the Chairman of the County Commissioners the District Attorney is not representing a party adverse to the Chairman, but to clients of the Chairman. The two are not the same. Clearly, the District Attorney is not required to withdraw from any prosecution because the Chairman of the County Commissioners is defense counsel.

The situation of the County Commissioner involves somewhat different considerations. His activity raises the question whether a lawyer who is also a part‑time public official is disabled from accepting employment by a client whose interests are adverse to the governmental unit in which he holds office. The question has been addressed only obliquely in particular contexts. For example, ABA Opinions 296 and 306 held that the partner of a legislator could not, absent consent or a waiver, represent clients before the Legislature. Formal Opinion 26 held that a former governor could accept employment attacking the validity of legislation passed during his term of office. Informal Opinion 287 held that a lawyer elected to Congress could continue an appearance in Federal Court.

In the present case the Chairman of the Board of County Commissioners clearly does not represent the county as a client. Nevertheless, we conclude that his membership on the Board of County Commissioners is activity as a lawyer for purposes of applying the Maine Rules of Court.

The Commissioner is not disabled from representing all criminal defendants, but we believe he is disabled in those cases prosecuted, investigated or initiated by the Sheriff’s office. The State, rather than the County, is nominally the defendant’s antagonist in a criminal case. The District Attorney is a state and not a county official, even though the counties in which the District Attorney operates provide office spaces, supplies and a clerical staff who are county employees. The Commissioners are required by statute to provide office support for the District Attorney (30 M.R.S.A. § 555A); they have no discretion. They have nothing to say about the District Attorney’s legal staff. In our opinion the involvement of the District Attorney as a prosecutor of criminal cases will not disable a lawyer who is Chairman of the County Commissioners from defending criminal cases.

We believe a County Commissioner is in a different position with respect to those criminal actions in which the Sheriff’s office is the investigator, makes the arrest, or otherwise is involved as a prosecuting agency. The Commissioners appear to have some supervising authority over the Sheriff, although it is far from clearly defined. 30 M.R.S.A. § 1001. He is required to inform the Commissioners of his activities regularly. They are required to “review the sheriff’s operation” and insure that law enforcement functions are adequately performed. They approve the hiring of all deputies. The Sheriff appears also to be a county officer. (§ 1001) We, therefore, conclude that if the Commissioner continues to represent defendants in cases prosecuted by the Sheriff’s office, he will be in a multiple employment forbidden by Bar Rule 3.4(c).

We do not believe the Commissioner is at liberty to deal with the situation by disqualifying himself from Commission decisions involving the Sheriff. To do so would be to abdicate substantial responsibilities of his elected office. See 30 M.R.S.A. § 1001.

We recognize that it can be argued that Rule 3.4(c) refers only to clients and that the county is not really a client of the Commission Chairman. The Chairman’s duties to the county as a Commissioner are, however, not dissimilar to his duties to a client. See Opinion of the Justices, 330 A.2d 912 (Me. 1975), and cases cited. It would appear that, just as he owes his clients in criminal cases independent professional judgment, so he owes the county independent judgment, when carrying out the duties to oversee county law enforcement imposed by 30 M.R.S.A. § 1001. Since the Chairman is unavoidably a lawyer, the judgment he brings to these duties is necessarily his professional judgment even though the county is not his client. His duties to private clients in criminal cases in which the Sheriff is involved may interfere with the independent exercise of that judgment. Conversely, it appears at least possible to the Commission that the Chairman’s contribution to county law enforcement through the duties imposed by 30 M.R.S.A. § 1001 will interfere with the independent professional judgment he is obligated to give to his client‑defendants in criminal cases prosecuted by the Sheriff. We, therefore, conclude that the Attorney‑Commissioner is required to decline employment representing defendants in criminal cases in which the Sheriff’s office is the responsible law enforcement agency.


Enduring Ethics Opinion