Opinion #73. Partner of City Councilor Litigating with the City

Issued by the Professional Ethics Commission

Date Issued: August 6, 1986

Question

A lawyer has been elected as a city councilor of a city with a so‑called Mayor/Council form of government. Under the city charter, the council exercises legislative power, including the power of approval of the overall budgets for the various departments of city government; but the council, as well as its individual members, are prohibited, on pain of punishment and loss of office, from interfering with the executive functions of the city, including the discipline and establishment of compensation of individual city employees, exclusive authority for which is vested in the mayor. The lawyer/councilor asks whether he (or the partners or associates of his firm)[1] may (1) represent private litigants against the city, whether as plaintiff or defendant, and (2) represent persons charged with criminal offenses in cases where a city employee, namely, a member of the city police force, may be a witness.

Opinion

For the reasons which follow, the Commission is of the view that lawyer/councilor (and his partners and associates) may not litigate against the city, but he may, under the particular constitutional structure of the city in question, defend criminal cases in which city employees may be witnesses.

These questions have been the subject of a substantial number of opinions of professional ethics authorities both in other jurisdictions and in Maine. Most notably, the Grievance Commission of the Maine Board of Bar Overseers has issued two recent opinions of considerable relevance to the current inquiry.[2] In 1982, that Commission ruled that a lawyer serving as a County Commissioner could not represent a defendant in a criminal prosecution in which a member of the county sheriff’s office, over which the Board of County Commissioners exercised substantial budgetary authority, might be a witness. Opinion No. 29 (February 4, 1982). In 1983, the Commission further determined that a lawyer serving as a city councilor similarly could not represent a criminal defendant when a member of the city police force might be a witness, since the city council in question had authority over the establishment of individual salaries of the police force. The Commission also determined that the lawyer/councilor cannot represent private litigants or municipal employees’ labor unions against the city even when the lawyer/councilor would play no official role in the resolution of the litigation. It did, however, indicate that the lawyer/councilor might be able to represent a worker’s compensation claimant against the city. Opinion No. 45 (November 22, 1983) (Questions 1, 5, 6 and 7).

In reaching these conclusions, the Grievance Commission relied generally on Maine Bar Rules 3.4(b) and 3.4(c), concerning the acceptance of employment by a lawyer when his “independent professional judgment” is likely to be affected by other interests of his own or of his other clients. See Opinion No. 29; Opinion No. 45 (Questions 1 and 5). The Commission recognized that the public body in question is not really a “client” of the lawyer/councilor, but reasoned that the relationship between them is sufficiently analogous to warrant the invocation of the conflict rules, citing Opinion of the Justices, 330 A.2d 912 (Me. 1975) as to the nature of the duties of a public officer to the public. See Opinion No. 29. It also indicated that the resolution of the questions does not turn on whether the lawyer actually attempts to use his position as a councillor to influence the course of litigation, but on the mere fact of his holding both positions, citing Rule 3.2(f)(4), which prohibits “conduct that is prejudicial to the administration of justice.” Opinion No. 45 (Questions 6 and 7).

With these principles in mind, we proceed to answer the precise questions posed.

I. Representation of Private Litigants by Lawyer/Councilor Against the City.

As indicated above, the Grievance Commission, in Question 6 of Opinion No. 45, determined that a lawyer, or his partners or associates, may not engage in litigation against the city of which he is a councillor,[3] basing its opinion on an earlier opinion of the Maine Bar Association. Maine Bar Association Opinion No. 8 (1971).[4] The Commission also considered whether the problem could be cured if the lawyer were to take no part in any council deliberations concerning the litigation. It concluded, however, that such non‑participation would not alter its conclusion since (1) the lawyer would still be responsible for establishing the salaries and tenure of city employees with whom he would be dealing in the litigation; (2) the lawyer would still be able to provide his private client with inside information about attitudes of various city officials concerning the progress of the litigation; and (3) even if such information were not actually provided, the appearances would be such as to prejudice “the administration of justice” in the eyes of the public, in violation of Rule 3.2(f)(4).

These conclusions find widespread support among the determinations of other professional ethics authorities of which we are aware. In addition to the rulings relied on by the Grievance Commission, see note 4, supra, similar results have been reached in Arizona, California, Indiana, Michigan, and Texas.[5] In general, these jurisdictions have found that the conduct of litigation by a city councilor against his city is improper, even if the lawyer takes no part in any discussions with the council or other city officials concerning the case, for the reasons that the potential for the lawyer to have an unfair advantage in the litigation and for the litigation to have an effect on the lawyer’s conduct of other official business is too great, and the appearance of impropriety is too pronounced.

For these reasons, we do not think that, for purposes of this question, it makes much difference whether the structure of the city government in question would prevent the lawyer/councilor from having any actual power directly to affect the course of the litigation. Nor would it matter that he may not have any direct involvement with setting the tenure or salaries of the city officials with whom he may be dealing in the litigation. The fact remains that the city itself is the adversary. It would be difficult to conceive of how the lawyer, or his partners or associates, could conduct himself in the litigation without making some use of his position to his client’s advantage, or that he would be able entirely to insulate the conduct of his public responsibilities from any effect of the litigation. Beyond this, of course, the question of the appearance which such a circumstance would generate cannot be ignored by anybody charged with protecting the public perception of the legal profession. Accordingly, we adhere to the conclusion of the Grievance Commission in Opinion No. 45 that a lawyer, or his partners or associates, may not litigate against a city of which he is a councillor.[6]

II. Representation of Criminal Defendant by Lawyer/Councilor When City Police Officer May Be a Witness.

As indicated above, the Grievance Commission, in Opinion No. 29, determined that a lawyer who was also a County Commissioner could not represent a criminal defendant in a case in which a member of the county sheriff’s office was likely to be a witness because of the control exercised by the Board of County Commissioners over the discipline and remuneration of individual deputy sheriffs. The Commission adhered to this decision in Question 1 of Opinion No. 45 in the context of a lawyer/councilor defending a criminal defendant when a city police officer whose salary is set by the city council might be a witness. As indicated by the Commission, this result is supported by at least two other professional ethics authorities. Arizona Ethics Opinion No. 75‑8 (1975); Florida Ethics Opinion No. 71‑12 (1971). See also California Informal Ethics Opinion No. 1975‑4; Texas Ethics Opinion No. 382 (1975).

The problem presented by this inquiry is whether it makes any difference to this result if, under the structure of the city government in question, a councillor has no control over the discipline or compensation of individual city policemen. As indicated above, the inquiring lawyer/councilor here is prohibited by law, on pain of criminal punishment and loss of office, from disciplining or fixing the remuneration of any city employee, including the police.[7] That function is assigned by the city charter exclusively to the mayor. Thus, the question arises whether Rule 3.4 could possibly be violated in this situation since any attempt by the lawyer/councilor to use his position to affect the testimony of the police officer would subject him to severe sanctions.

We note first that such other authorities as have considered this question appear to conclude unanimously that the lawyer may represent the criminal defendant. While the general rule remains valid that a lawyer who is in a position to affect a policeman’s status or salary should not place himself in the position where he might be obliged to challenge that officer’s veracity, the rule does not apply when the only relation between the lawyer/councilor and the police force is a requirement that the city council approve the police department’s overall budget. Thus, in North Carolina it was determined that a lawyer/councilor may represent criminal defendants against state prosecution when a city policeman is to testify, provided that the board or commission on which he serves is not directly involved in the hiring, firing and setting of salaries of individual police officers. Compare North Carolina Ethics Opinion No. CPR‑252 (1979) with North Carolina Ethics Opinion No. CPR‑189 (1978) (councilor may not represent criminal defendant against city policemen even when council has no authority over discipline or individual salaries because council must approve the police chief).[8] And in Massachusetts, it was ruled that a lawyer/councilor may defend such a case so long as the council has no influence over the police department. Massachusetts Ethics Opinion No. 78‑14 (1978). Indeed, the Chicago Bar Association appears to have gone even further and sanctioned the representation of such defendants by a lawyer/alderman so long as the lawyer simply did not “use” his position to influence, or create the impression that he was influencing, the officer’s testimony, a result inconsistent with the Grievance Commission’s determination that ethical questions of this kind cannot turn on the actual behavior of the lawyer in the conduct of the litigation. Chicago Ethics Opinion No. 75‑26 (1975).

We are persuaded that these authorities are correct. Therefore, so long as the city council on which the lawyer serves does not, as a matter of law, have any influence over the hiring or firing of the personnel of the police force, or the amount of their individual compensation, but is limited instead simply to approving the department’s overall budget, the lawyer may represent a criminal defendant in a case where a city policeman may be a witness. We do not regard this conclusion as inconsistent with that reached in the first part of this inquiry. There, it will be remembered, the party to the litigation in which the lawyer/councilor proposes to be involved is the city itself. Thus, the potential for abuse of the lawyer’s public office is great. Here, the prosecutor is not the city,[9] it is the State, over whom the lawyer/councilor has no influence. The potential for abuse is thus greatly reduced, and no impropriety likely to result if the lawyer/councilor cannot retaliate in any way against the testifying policeman.


Footnotes

[1] Through the operation of Maine Bar Rule 3.4(k), the disqualification of a lawyer from the acceptance of employment for any reason under the Maine Bar Rules requires the disqualification of his partners or associates.

[2] At the time of the promulgation of the Maine Bar Rules, November 1, 1978, the Grievance Commission was entrusted with the responsibility both of resolving disputes as to the past behavior of lawyers and of rendering advice as to their future conduct. On February 15, 1985, this latter function was transferred to the newly established Professional Ethics Commission. The determinations of the Grievance Commission prior to 1985 are therefore precedent for Ethics Commission advisory opinions.

[3] Actually, the Opinion indicates only that the lawyer, his partners or associates may not initiate legal action against the city. However, there would not appear to be any meaningful distinction, for purposes of Rule 3.2(d)(2), between whether the lawyer is representing a plaintiff or a defendant against the city. See Maryland Ethics Opinion 80‑60 (1980) (law firm obliged to withdraw from representing defendant in litigation with county when member of firm is a county councillor).

[4] This opinion in turn relies on the opinions of three other professional ethics authorities in the city of Cleveland, Ohio and the states of Washington and Wisconsin. Cleveland Ethics Opinion 1‑A (1950); Washington Ethics Opinion No. 79 (1960), revised on other grounds, Ethics Opinion No. 167 (1979); Wisconsin Ethics Opinion No. 2 (1954).

[5] Arizona Ethics Opinion No. 82‑14 (1982); California Ethics Opinions Nos. 1977‑46 and 1981‑63; Indiana Ethics Opinion No. 1980‑2; Michigan Ethics Opinion No. 132 (1950); Texas Ethics Opinion No. 382 (1975).

[6] In reaching this conclusion, we are not unmindful of the fact that in 1984, the Supreme Judicial Court declined to adopt an amendment to the Maine Bar Rules which would have had the effect, among other things, of prohibiting expressly the representation of a private client by a lawyer against a city of which he is a councilor. See proposed Rule 3.4(m)(2)(A), a copy of which is attached to this Opinion. We do not think, however, that the failure of the Court to adopt this rule means that existing rules cannot be interpreted to reach the same result, particularly when it is remembered that, as indicated above, other authorities have so interpreted similar versions of the same rule.

[7] We assume that the city council has no power to affect the tenure or compensation of members of the police force by indirect means as well, such as by abolishing the positions of individual officers. We are also aware that the council might be able to exert influence on an individual policeman by refusing to defend him in any civil action which might be brought against him in his official capacity, but consider that danger too remote for consideration.

[8] It is important to note that these determinations do not hinge on whether the councilor proposes to recuse himself from council deliberations on police matters, since such recusal is not legally binding and can, therefore, be ignored in the future. See North Carolina Ethics Opinion No. CPR‑233 (1979).

[9] If it were the city‑prosecuting to enforce one of its ordinances‑the result would be different. See Michigan Ethics Opinion No. 132 (1950) and Los Angeles Ethics Opinion No. 273, the latter cited with approval in Maine Bar Association Opinion No. 8.


Enduring Ethics Opinion