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Ethics Opinions
OF THE MISSISSIPPI BAR
Editor's Note: See M.R.P.C. 1.6, 1.7, 1.8, 1.10, 1.16, 2.1, 8.4
PRACTICE OF LAW- A lawyer should not accept proffered employment if his personal interest or desires will, or there is a reasonable probability that they will, affect adversely the advice to be given or services to be rendered the prospective client.
The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the facts presented under the following hypothetical situation:
Lawyer A and Lawyer B practice law as partners. Lawyer A is the City Attorney. Lawyer B has asked the City to grant an exception to a City Ordinance for Client X. The City Council has referred the matter to a City Commission and this Commission has ruled adversely to Client X.
Lawyer B appeals the Commission's decision to the City Council A the time the appeal is being heard, the City Commission having made the ruling is not represented. Lawyer B appears before the City Council to argue the appeal and Lawyer A is present. Lawyer A joins Lawyer B in arguing Client X's appeal before the City Council.
Under the facts as set out above, is there a conflict of interest for Lawyer A since he is the City Attorney and partner to Lawyer B and aids Lawyer B in his arguments before the City Council? In other words, in the situation described herein, is this action of Lawyer A contrary to the intent of Canon 5, Canon 8 and Canon 9 of the ABA's Code of Professional Responsibility.
In the opinion of the Ethics Committee, the actions of Lawyer A and B are contrary to the intent of Canons 5, 8 and 9 of the ABA's Code of Professional Responsibility which are as follows:
Canon 5: A lawyer should exercise independent professional judgment on behalf of a client.
Canon 8: A lawyer should assist in improving the legal system.
Canon 9: A lawyer should avoid even the appearance of professional impropriety.
A lawyer who is a public officer or attorney for any public body, whether full-time or part-time, and his partners and associates should not engage in activities in which their personal or professional interests are, or foreseeably may be, in conflict with the official duties of the lawyer-official (e.c. 8-8).
The Committee further determined that such a situation is within the prohibition of Section 21-15-29 of the Mississippi Code of 1972, Annotated, which provided, in material part:
". . . It shall likewise be unlawful for any municipal attorney to represent any person in any cause of proceedings, either civil or criminal, in any court when the municipality for which he is attorney is a part to said proceedings . . "
Finally, in the opinion of the Committee, such action is contrary to the principles set forth in Disciplinary Rule 9-101(C):
"A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal legislative body or public official."