Opinion #38. County Commissioner Taking Cases Against Towns in the Same County

Issued by the Professional Ethics Commission

Date Issued: June 2, 1983

Facts

A question has been raised as to whether a lawyer, who is also a County Commissioner, has a conflict of interest in two cases in which he is representing persons asserting claims against municipalities located in the county which he serves. In one case, the attorney/County Commissioner represents the estate of a passenger who was killed in a car crash resulting from a high speed chase. The complaint alleges that individual police officers of town A were negligent in initiating a high speed chase. Town A is joined as a defendant on a theory of respondent superior.

In the second case, certain police officers in town B have been sued by the same attorney for negligently allowing a criminal defendant to commit suicide by hanging himself while confined in the town lock‑up. Town B is joined as a defendant because of the employment relationship.

It is suggested by the inquirer that the attorney has a conflict of interest because he represents towns A and B in his capacity as County Commissioner. Questions are also raised about the propriety of inquiries made to officials of town B about their lock‑up agents of the county in which the attorney serves as Commissioner which were allegedly made to assist him in obtaining information relevant to the investigation of his case.

Opinion

We do not find a conflict of interest on the basis of the facts submitted. Bar Rule 3.4(b) states that a lawyer:

. . . shall not accept employment if the exercise of his independent professional judgment in behalf of a client will be, or is likely to be, adversely affected by the acceptance of such employment, or if it would be likely to involve him in representing differing interests . . .

In Opinion #29 (Feb. 4, 1982) which involved an attorney who was also a County Commissioner, we analogized the duty owed to the county to the duty owed to a client. We nevertheless determined that no conflict of interest would exist even though the attorney/County Commissioner in that case represented criminal defendants being prosecuted by the District Attorney since his duty to the county was not adverse to his relationship with the District Attorney.

Clearly the individual towns within a County Commissioner’s district are not clients of a lawyer/County Commissioner nor does he have any special duty to them as a result of his county office. Neither do we see anything in his official obligation to the county itself or to his constituents which would create an adverse interest in a case such as is presented here. Were it otherwise, the attorney in question would never be able to sue anyone living within the county which he represents.

We are unable to make any determination regarding the alleged incidents in which county employees are said to have been used to assist the attorney in question in investigating jail conditions in connection with his lawsuit against town A. The facts are disputed. Moreover, even if any improprieties were involved, they would seem to concern the use of public funds for a private purpose and not any matters within the purview of the Rule 3.4(b).


Enduring Ethics Opinion