91-12: Conflict of Interest; Imputed Disqualification

4/1991

Contractual relationship existing between the County Attorney's office and the City Attorney's office does not, in itself, prohibit the two offices from exchanging cases due to conflicts of interest.

FACTS

The inquiring attorney is the County Attorney of a rural Arizona county. In the past, he has referred to a local City Attorney the prosecution of cases involving a conflict of interest between an attorney in his office and the defendant. In return, the City Attorney has referred cases to the County Attorney's office whenever an attorney in his office has a similar conflict.

The county and the city have now consolidated the Justice and Magistrate Courts. As part of the consolidation, all prosecution will be performed by the City Attorney’s firm under a contract with the county. The City Attorney will be designated as a Deputy County Attorney for this purpose. The inquiring attorney discloses that he will have no supervision or oversight over individual cases, but that he retains the power to revoke the City Attorney's appointment as special deputy at any time.

QUESTION

May the County Attorney's office and the City Attorney's office ethically continue to exchange cases involving conflicts, after the city has entered into a contract with the county to prosecute all cases in the Justice and Magistrate courts?

ETHICAL RULES INVOLVED

ER 1.7. Conflict of Interest: General Rule

(a) A lawyer shall not represent a client if the representation Ct that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

ER 1.10. Imputed Disqualification: General Rule

(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by ER 1.7, 1.8(c), 1.9 or 2.2.

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(d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in ER 1.7.

Comment to ER 1.10: ...The terms of any formal agreement between associated lawyers are relevant in determining whether they are a firm, as is the fact that they have mutual access to confidential information concerning the clients they serve...

OPINION

The issue presented in this inquiry is whether a County Attorney, by virtue of entering into a contract with the City Attorney who will prosecute the county's misdemeanor criminal cases, will be precluded from referring cases to the City Attorney in which the County Attorney has a conflict of interest. Essentially, the question is one of imputed disqualification. We must determine whether, under the facts, the contractual relationship between the City Attorney and County Attorney makes them a "firm" for purposes of ER 1.10(a). If ER 1.10 applies, the County and City Attorneys may not continue to exchange cases.

Normally, an attorney who works for another pursuant to a contract should be treated as a member of the same law firm for purposes of the imputed disqualification rule. Typically, lawyers working in an independent contractor relationship will discuss cases and have mutual access to confidential information, much the same as if they were two members of the same law firm. This committee has previously determined that, where an organization operates much like a private law firm, it will be treated as one for purposes of ER 1.10. Opinion No. 89-08 (October 19, 1989) (Public Defender's Office is a "firm" within ER 1.10(b)). It is likely that an attorney with supervisory responsibilities in any independent contractor relationship would need information with respect to the other attorney's caseload to assess compliance with the contract. In fact, the Rules of Professional Conduct require attorneys with supervisory responsibilities to make reasonable efforts to ensure that lawyers under their supervision conform to the Rules. See ER 5.1. In this respect, the inquiring attorney would operate much like a partner who supervises an associate at a law firm.

Ultimately, however, the question of whether an independent contractor arrangement creates a "firm" is based on the particular facts of the arrangement. See Comment to ER 1.10. The facts of the present inquiry suggest a contractual relationship that is not as close as that which would typically be encountered. The City Attorney has contracted with the county, not with the inquiring attorney personally; in fact, the inquiring attorney has informed us that he would have no supervisory control over the City Attorney at all. In these circumstances, there is little danger that the City and County Attorneys' offices will discuss pending matters or exchange confidential information regarding the misdemeanor prosecution cases the City Attorney is handling on behalf of the county.

Nevertheless, the inquiring attorney states that he would have the power to terminate the contract at any time. To the extent that this power involves a review of the City Attorney's workload, and specifically a review of any confidential information pertaining to the misdemeanor prosecutions performed by the City Attorney, the inquiring attorney should consider the County Attorney's Office and the City Attorney's Office to be one "firm" for purposes of ER 1.10(a).

In conclusion, it is our opinion that the contractual relationship existing between the City Attorney's Office and the County Attorney's Office does not, in itself, prohibit the two offices from exchanging cases when conflicts arise. However, the inquiring attorney should determine whether the terms of the contract, and specifically his ability to terminate the contract at any time, require him to be familiar with confidential information concerning the City Attorney's cases.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.