Opinion #49. Part-time District Attorney Representing Private Client Where County Commission Acts as Decision-Maker

Issued by the Professional Ethics Commission

Date Issued: May 10, 1984

Opinion

The Grievance Commission has been asked the following questions:

A part‑time assistant district attorney is also employed by a private law firm that has as clients a number of local towns. The district attorney’s office is required by statute to represent that county. Occasionally, in matters such as tax appeals there is litigation involving a town on one side and the county on the other. If the particular assistant district attorney does not involve himself in any of these matters, either for the district attorney’s office or for his private firm, is there a conflict of interest problem? What if the assistant district attorney refrains completely from representing the county? What if the assistant district attorney refrains from any personal representation of towns for his private firm? Does it make a difference if the law firm is on retainer for the town or whether he is hired on a case by case basis as part of a continuing relationship?

Assistant district attorneys are appointed by the district attorney to serve at his pleasure. They are directed to “assist the district attorney in the ordinary duties of his office.” (20 M.R.S.A. § 554‑A.)

Among other duties, the district attorney is required to “appear for each county within the district for which he was elected, under the direction of the county commissioners for each county within such district, in all actions and other civil proceedings in which any county within such district is a party or interested, or in which the official acts and doings of said county commissioners are called in question, in all the courts of the State, and in such actions and proceedings before any other tribunal when requested by said commissioners.” (30 M.R.S.A. § 501)

Assistant district attorneys have no independent statutory duties; whatever the district attorney is required to do they may be required to and must do in the absence of their employer. Hence, it seems inescapable that all assistants represent all the counties in the district regardless of how duties of the office may be divided. Part‑time assistants therefore may not represent any party opposing the county or the county commissioners in any of the proceedings described in Section 501. If they may not do so, neither may their partners. If a town client of the assistant’s firm is opposed to the county in a litigated matter, the firm is disqualified and may not appear for the town.

This analysis does not alone answer the question, however, since “tax appeals” are not really “litigation involving a town on one side and the county on the other.” If the question refers to abatement proceedings, as we assume, the opposing parties appear to be the taxpayer applying for abatement and the town, both before the county commissioners and in subsequent proceedings. The county commissioners are not even a proper party to any Superior Court review of their decision. Shawmut Inn v. Town of Kennebunkport, 428 A.2d 384, 388 (1981); Assessors, Town of Bristol v. Eldridge, 392 A.2d 37, 3940 (Me. 1978). They function as a quasi‑judicial appellate tribunal. 36 M.R.S.A. § 844.

Although the district attorney would not represent the county on appeal in such cases (since the county is not a party) it does not follow that his office will not participate at some stage as attorney for the commissioners. The district attorney’s office may advise the commissioners about legal aspects of an abatement and even help them conduct a hearing. When that happens the district attorney is under a professional obligation to provide independent judgment to the commissioners. Clearly the same attorney may not both advise the commissioners and represent one of the parties to a proceeding in which the commission acts as decision maker.

We conclude it would likewise be improper for a part‑time assistant district attorney to represent a town (or taxpayer) before the county commissioners in an abatement appeal even if he had nothing to do with the case in his capacity as assistant district attorney. Although the vicarious disqualification rule [3.4(k)] does not apply to common employment in a government agency, an assistant district attorney’s sole function is to assist the district attorney in performing the duties of the district attorney’s office. Thus necessarily he or she always represents the county. Representing the county commissioners, Rule 3.4(b) and (c) bar the assistant from representing a party appearing before them as a quasi‑judicial body hearing abatement appeals. If the assistant may not represent a party appearing before the county commissioners, neither may any member of the assistant’s firm. [Rule 3.4(k)


Enduring Ethics Opinion