CONFLICT OF INTEREST- A partner of the City Prosecuting Attorney may not defend a client on charges brought against him in Municipal Court even if the case is transferred to County Court.
The Ethics Committee has been asked to render an opinion of the following facts: Attorney X, of the firm of X, Y & Z, is the City Prosecuting Attorney, having been appointed by the mayor and Board of Aldermen. As such, attorney X is charged with responsibility of prosecuting misdemeanors and holding felony preliminary hearing on all criminal matters prosecuted before the Municipal Court.
Attorney Z has a general civil and criminal trial practice and is retained by a criminal defendant upon charges brought against him in the Municipal Court.
Lawyer X, the City Prosecuting Attorney, does not have any involvement with the case, has not prepared or helped to prepare any warrants, etc., and has no knowledge of the facts of the case.
If the case is transferred to County Court (Justice Court) prior to any involvement by lawyer X, may lawyer Z represent the client?
The Committee is of the opinion that a partner of the municipal prosecuting attorney may not defend a client against criminal charges brought against him in the municipal court even if the case is transferred to the county court. The pertinent issue is whether or not the city prosecuting attorney could defend criminal charges under such circumstances, because DR5-105[D] advises that:
If a lawyer is required to decline employment or to withdraw from employment under DR5-105, no partner or associate of his or his firm may accept or continue employment.
The municipal prosecuting attorney would be prohibited from accepting employment in the context of this case under the principles set out in Canon 5 which says, "A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client" and Canon 9 which states, "A Lawyer Should Avoid Even the Appearance of Professional Impropriety." EC5-1 requires an attorney to decline employment if he would not be ". . . free of compromising influences and loyalties." Although the Committee has no doubt attorney Z could not accept employment in the facts presented, if there were any doubt it should be resolved against multiple representation. See EC5-15. Additionally, EC8-8 teaches that public officials should avoid professional activities that may conflict with the duties of their office.
Since attorney Z is ethically bound not to accept employment in a case if his partner cannot accept employment, Section 21-15-29 (Miss. Code of 1972) is pertinent and reads in part as follows:
It shall be unlawful for any attorney of the municipality to defend any person charged with a criminal offense in any municipal court of which municipality he is attorney. It shall likewise be unlawful for any municipal attorney to represent any person in any cause or proceedings, either civil or criminal, in any court when the municipality for which he is attorney is a party to said proceedings, or when such civil or criminal proceedings were instituted or arose during the time when such attorney represented such municipality. Previous consistent opinions on related issues are found in opinions no. 26, 30 and 52.