Restrictions on public defender serving as city council member.
FACTS
The inquiring attorney is a deputy public defender in a rural Arizona county. The attorney is presently assigned to try cases in three of the five justice courts in that county. Recently, the attorney was appointed to fill a vacancy on the city council of a city in the county, located within one of the justice precincts where the attorney is assigned to try cases. Nothing has been found in state, county or city statutes, ordinances or rules to prevent the attorney, as a county employee, from holding an elective position with the city.
QUESTIONS
1. May an attorney-city council member, with ethical propriety, represent a criminal defendant as a deputy public defender in justice court when the defendant has been arrested by a police officer of the city on whose council the attorney serves?
2. If the attorney-city council member cannot ethically appear in justice court on behalf of the defendant, may the attorney properly represent the defendant at all stages short of trial, including working out plea agreements?
ETHICAL RULES INVOLVED
ER 1.7. Conflict of Interest: General Rule
*****
(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. ***
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.
(d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in ER 1.7.
ER 1.11. Successive Government and Private Employment
(a) Except as law may otherwise expressly permit, a lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation. No lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless:
(1) the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the appropriate government agency to ascertain compliance with the provisions of this rule.
(b) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.
(d) As used in this rule, the term "matter" includes:
(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency.
(e) As used in this rule, the term "confidential government information" means information which has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public.
OPINION
This committee issued a number of opinions regarding attorney-city council members under the earlier Canons of Professional Ethics and Code of Professional Responsibility. For purposes of clarity and consistency, we first review each of those earlier opinions before focusing on the subsequent changes in the ethical rules and their impact on the questions presented here.
In our Opinion No. 70-5 (February 26, 1970), the committee concluded that the law firm of an attorney-city council member could represent that city's employee union in its dealings with the city so long as the attorney complied, like other city council members, with the requirements of the 1968 Arizona Conflict of Interest Act (ARS §§ 38-501 to 38-504) by (a) not personally representing the union, (b) disclosing the potential conflict of interest in official public records, (c) refraining from voting or participating in any dealings between the city and the union, and (d) not sharing in any fees earned by the firm through its representation of the union in dealings with the city. However, we withdrew from this position in our subsequent Opinion No. 74-28 (September 24, 1974). We then concluded that the prohibitions against the "appearance of impropriety" found in Canon 9 and EC 9-6 of the Code of Professional Responsibility, as well as the prohibition against a lawyer accepting private employment in a matter in which he had substantial responsibility as a public employee (EC 9-3 and DR 9-101(B)) and the "infectious disqualification rule", all combined to: (a) prohibit an attorney-city council member from practicing law in the city's courts, (b) prohibit members of the attorney's law firm from practicing in the city's courts, (c) prohibit members of the firm from undertaking representation of plaintiffs where the city was a defendant, (d) prohibit members of the firm from appearing on civil matters before the city council, and (e) prohibit members of the firm from appearing before the various city boards.
This latter opinion proved controversial and resulted in an unusual procedure wherein the Arizona Supreme Court agreed to review the opinion at the urging of the Arizona League of Cities and Towns and others. In Re Ethics Opinion No. 74-28, 111 Ariz. 519, 533 P. 2d 1154 (1975), confirmed answers "a" through "c" of Opinion No. 74-28, noting that the Court can obviously set higher standards for members of the bar who are also city council members than the Legislature sets for public officials in general. However, the Court indicated a desire to find a "common-sense" solution which protected the public yet made active participation of the attorneys available to public bodies. Thus, with regard to the attorney-council member's law firm representing clients before the city council, the "appearance of impropriety" could be removed if: (a) the attorney-council member announced his disqualification on the record, (b) the attorney-council member refrained from discussing matters with other council members or with city employees, and (c) the attorney-council member did not share in fees received by the firm for such representation. The "appearance of impropriety" could also be removed as to the firm's representing clients before the various city boards if: (a) the attorney-council member did not discuss the matters with board members, council members or city employees, (b) the attorney-council member did not share in fees received by the firm for such representation, and (c) the attorney-council member did not participate in selection of members of boards before which the attorney's firm regularly appeared.
A separate concurrence by Chief Justice Cameron and Justice Lockwood complained that "appearance of impropriety" is often in the eye of the beholder, and said -
"while we are concerned with avoidance of conduct that would give the appearance of professional impropriety, it is actual unethical conduct which is our primary concern.... To be overly strict in interpreting Canon 9 would prevent an attorney from discharging his responsibility as a citizen to participate in public affairs and hold public office."
(Id. at 522)
The next opinion chronologically [Opinion No. 75-7 (May 27, 1975)], dealt with an attorney-state legislator but involved issues similar to those considered here. There the committee determined that it would be ethically improper, because of the appearance of wrong-doing, for the attorney-legislator to bring a tort action on behalf of a private client against the State of Arizona, because: (a) the attorney-legislator's ability to participate in appropriating funds allowed exertion of indirect influence on various state agencies and personnel; (b) the attorney-legislator's official position gave him an enhanced ability to gain access to agency information that could be of value in a lawsuit; (c) by virtue of his position, the attorney-legislator's professional judgment could be impaired to a degree by other state officials; (d) the attorney-legislator would be in the unique position of possibly voting on appropriations to cover the defense of his lawsuit; and (e) the attorney-legislator would be in a position to vote for appropriations to cover any excess judgment.
That same day, the committee issued its Opinion No. 75-8 which is directly on point with regard to the facts of this inquiry. We determined that it would be unethical for an attorney-city council member to defend a criminal defendant in any court where the city's police officers would be witnesses against the defendant (whether in municipal, justice or superior court). It cited our Opinion No. 74-28 as support for prohibiting an appearance by the attorney for the defense in city court, based on the relationship between the city council, the city court, and the prosecutors, as well as the controlling influence the council exerts over city magistrates and the city attorney. The committee then expanded it analysis to prohibit the attorney-council member's representation of criminal defendants wherever city police officers would be witnesses against the defendant, because of the "appearance of impropriety" brought on by the attorney-council member's ability to control and influence those city police officers. This control and influence came from his participation in hiring and firing police department heads, controlling and appropriating monies for the police department, determining the number of policemen, and determining police salaries. The opinion referred to the prohibition against accepting private employment in matters where an attorney had substantial responsibility while a public employee [DR 9-101(B)], and said that, even though this particular attorney was still a city council member, "[w]hat a lawyer cannot do after leaving public employment obviously cannot be done during the public tenure." A dissent to the opinion was reported, which argued that the possible conflict of interest was too remote and indirect except in city court.
In our Opinion No. 75-14 (July 3, 1975), an attorney-city council member's contractual relationship with another attorney was ruled: (a) to preclude the other attorney from handling the attorney-council member's cases in city court if fees were shared; (b) to have the same result if the attorney paid the attorney-council member a flat rate for office overhead; but (c) to allow the other attorney to appear before the various city boards if the council member didn't share the fees. Any efforts to appoint special city judges so the other lawyer could practice before them was held inappropriate since the attorney-council member would still have appointive power over the chief judge who would appoint such special judges, and also because such arrangements would still have the appearance of impropriety.
In its Opinion No. 78-7 (February 23, 1978), the committee concluded that the members of the firm of an attorney appointed to complete a city council member's term could not practice before that city's court even though the city magistrate was separately elected and the council could not change the salary during a sitting magistrate's term in office. We pointed out that the council still had control over the city attorney (city prosecutor) and there would still be an appearance of impropriety for partners of the attorney-council member to reach a plea agreement with that prosecutor. The committee also applied DR 9-101(B) prohibiting the acceptance of private employment in matters where the attorney had substantial responsibility while a public employee.
Our Opinion No. 82-11 (May 28, 1982) reiterated the rule in Arizona that attorney-city council members are prohibited from practicing law in the municipal court. However, in that case, where the attorney was a former member of the town's charter council who had also served for a period as the town attorney, he could still represent a client charged with violating a municipal ordinance adopted while the attorney was a member of the council. He did not have "substantial responsibility" in this matter as a former public employee merely by helping pass the ordinance as a council member. Also, the potential "appearance of impropriety" had to be balanced against the attorney's right to participate in local government and the client's right to freely choose counsel.
That same year, our Opinion No. 82-14 (October 12, 1982) concluded that an attorney-city council member's firm could not: (a) represent a plaintiff in a pending personal injury action against the city, (b) practice in the city's Magistrate Court, (c) practice in Justice Court where the Justice of the Peace was the same person as the City Magistrate (which prohibition also applied to the attorney-council member), or (d) [per Opinion No. 75-8] practice in criminal or civil litigation where city employees would be adverse parties or witnesses (which prohibition, again, also applied to the attorney-council member). The analysis reiterated Opinions Nos. 74-28 and 78-7. It reached this conclusion after balancing the need for lawyers to hold public office against the need to avoid the appearance of impropriety by not accepting private employment in a matter in which the lawyer had substantial responsibility as a public employee [EC 9 -3 and DR 9-101(B)]. It also applied the requirement that an attorney refuse employment where her interests (DR 5-101(A)) and the interests of another client (DR 5-105) may impair the attorney's independent judgment, the requirement that an attorney preserve the confidences and secrets of a client (DR 4-101), and the "infectious disqualification" rule.
From this review it is evident that, prior to Arizona's adoption of the present Rules of Professional Conduct, the rule in Arizona was that attorney-city council members could not represent criminal defendants: (a) in the city's courts (at all), or (b) in other courts of the state if the city's police officers were to be witnesses against those defendants.
The Rules of Professional Conduct became effective in Arizona on February 1, 1985. They no longer included direct prohibitions against the "appearance of impropriety". The new general rule on conflicts of interest (ER 1.7) went beyond former DR 5-105(A) by requiring that, when the attorney's other interests are involved, not only must the client consent after consultation but, independent of such consent, the representation must reasonably appear not to be adversely affected by the attorney's other interests. (See, Code Comparison, ER 1.7) The new general rule of imputed disqualification (ER 1.10) provided, among other things, for waiver of the disqualification by the affected client. The new rule regarding successive government and private employment (ER 1.11) changed, among other things, from the language of former DR 9-101 (B) ("in which he had substantial responsibility while he was a public employee") to "in which the lawyer participated personally and substantially as a public officer or employee". [ER 1.11(a)] It also added, among other things, a new prohibition against using confidential government information about a person, obtained while a public officer or employee, in representing a client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. [ER 1.11(b)]
Shortly after adoption of these new Rules, the Arizona Supreme Court dealt with a case whose facts were similar to those of this inquiry, except that it was in the context of a motion for disqualification of the defense attorney by the State. Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986). In its analysis, the Court discussed the fact that the "appearance of impropriety" requirement had been omitted in the new Rules of Professional Conduct. Then it said -
"It would appear, however, that 'appearance of impropriety', however weakened by case law and its omission in the new Rules of Professional Conduct, survives as part of conflict of interest and an appearance of impropriety should be enough to cause an attorney to closely scrutinize his conduct."
[Id. at 225] The Court also discussed this committee's Opinion No. 75-8 which had found against an attorney-city council member representing criminal defendants in Superior Court where city police officers would be adverse witnesses, because of the appearance of impropriety and the council member's control and influence over police officers. [Id. at 224] Without overruling that Opinion, the Court quoted the concurrence in In Re Ethics Opinion No. 74-28, supra, which emphasized the Court's primary concern for actual unethical conduct over the appearance of impropriety, then said -
"More recently, we reiterated our position on what constitutes sufficiently impermissible conduct for disqualification based on an appearance of impropriety. We held: [t]he question we have before us is whether an appearance of impropriety alone will give a party standing to interfere with an adverse party's choice of counsel. We agree with the line of cases that have applied a stricter scrutiny when reviewing possible Canon 9 violations as a basis for disqualification. . . .It does not necessarily follow that it [the appearance of impropriety] must disqualify him in every case. Where the conflict is so remote that there is insufficient appearance of wrongdoing, disqualification is not required." (citations omitted)
[Id. at 225] The Court then ruled that disqualification in that case should not have been granted because: (1) it resulted in harassing the defendants, (2) the State had not shown it would be damaged by failure to disqualify the attorney-council member and there was no record that the police officers were actually hesitant to testify, (3) the attorney's recusing himself from participating in matters directly involving the police department and removing himself and his firm from cases either against the city or in city court had made the danger of actual conflict appear minimal, and (4) possible public suspicion raised by the attorney-council member's representation of the defendants in Superior Court was too remote to outweigh depriving them of an attorney in whom they had expressed confidence and whose disqualification could possibly cause them harm. [Id. at 226] The Court emphasized that it was not overruling the prohibition against attorney-city council members practicing law in the city's courts found in In Re Ethics Opinion 74-28, supra, and in our Opinion No. 74-28. [Id.]
It is clear that Gomez is a "disqualification" case, based on the particular facts and emphasizing the defendants' right to choose counsel. Unlike In Re Ethics Opinion 74-28, supra, it did not purport to review the prior ethics opinions of this committee. It implied, but did not decide, that the outcome might have been different if the State could have shown that the police officers were actually hesitant to testify, that the attorney-council member could not be effectively screened from participating in matters directly involving the police department, and that the defendants would not have been harmed by disqualification of this particular defense attorney. It illustrated that, while the analysis involved in giving ethical advice under the Rules and reaching legal opinions as to disqualification is often similar, it is not necessarily identical nor are the standards for one higher or lower than the standards for the other. [See, our Opinion No. 91-05 (February 20, 1991); our Informal Opinion on Inquiry No. 1345 (October 30, 1992); Rodriquez v. State, 129 Ariz. 67, 70, 72, 74, 628 P.2d 950 (1981); Sellers v. Superior Court, 154 Ariz. 281, 286, 287, 289, 742 P.2d 292 (App. 1987); Foulke v. Knuck, 162 Ariz. 517, 521, 523, 784 P.2d 723 (App. 1989); Turbin v. Superior Court, 165 Ariz. 195, 198, 199, 797 P.2d 734 (App. 1990); In Re Ockrassa, 165 Ariz. 576, 579, 799 P.2d 1350 (1990); State ex rel. Romley v. Gottsfield, 171 Ariz. 195, 829 P.2d 1241 (App. 1992)] Therefore, Gomez did not decide the ethical issue of whether an attorney-city council member may defend a criminal defendant, under the new Rules of Professional Conduct, in either Justice Court or Superior Court when city police officers will testify as witnesses against the defendant.
No committee opinions issued subsequent to adoption of the new Rules have been directly on point. However, our Opinion No. 88-03 (March 9, 1988)] was somewhat related. It discussed the case of an attorney who announced his candidacy to become County Attorney after he had been appointed to represent a criminal defendant. The defendant objected to the attorney's continued representation on the basis of conflict of interest, and the committee concluded that the attorney's representation of that defendant could be materially limited by the attorney's own interest, pursuant to ER 1.7. It quoted G. Hazard & W. Hodes, The Law of Lawyering, 305 (1985) that "personal ambition and personal political goals may be the equivalent of money." Therefore, client consent had to be obtained even if the attorney reasonably believed that the representation might not be adversely affected. Since that consent could not be obtained, the attorney needed to seek permission of the court to withdraw.
Turning now to an analysis of this inquiry under the present Rules, we note that the facts are silent as to whether the Justice of the Peace before whom the inquiring attorney-city council member practices is also a Magistrate in the attorney's particular city. Although this can be fairly common, we will presume for purposes of this inquiry that none of the Justices of the Peace before whom the attorney practices is also a Magistrate of his city court.
The nature of the position of a city/town council member in Arizona varies from municipality to municipality. It is somewhat dependent on whether the municipality is a "general law" town or city under Articles 3 or 4, Chapter 2, Title 9 of the Arizona Revised Statutes; a "charter" city under Article 5, Chapter 2, of Title 9; or employs a city or town manager pursuant to ARS § 9-303. It can also be dependent upon the size of the municipality. However, council members in all Arizona cities and towns can be presumed to exercise legislative, quasi-judicial and executive authority. [See, e.g., ARS §§ 9-239, 9-240, 9-274, 9-275, 9-276, 9-284, 9-303, 9-462.01, and 9-462.06; In Re Ethics Opinion No. 74-28, supra, 111 Ariz. at 520.] Ultimately, council members set policy for the municipality, including law enforcement policy. [Opinion No. 70-5 (February 26, 1970), p. 2] They are empowered to create and fill appointive positions, including the position of city/town attorney, magistrate judge, various department heads (including police chief), etc. [Opinion No. 74-28 (September 24, 1974), p. 1; Opinion No. 75-8 (May 27, 1975); Opinion No. 75-14 (July 3, 1975); Opinion No. 78-7 (February 23, 1978); Opinion No. 82-14 (October 12, 1982); ARS §§ 9-239, 9-274, and 9-303.] They budget and appropriate funds for each municipal department, and in the process determine staffing levels, salaries, etc. [ARS §§ 9-239(A), 9-240(B) (2), and 9-274(A) (2); Opinion No. 75-8, supra; Opinion No. 78-7, supra; Opinion No. 82-14, supra] Council members may participate directly in discussing or considering employment, assignment, appointment, promotion, demotion, dismissal, salaries, disciplining or resignation of a public officer, appointee, or employee, and may discuss or consult with their representatives regarding negotiations with employee organizations. [ARS § 38-431.03(A) (1) and (5); Opinion No. 75-8, supra; Opinion No. 82-14, supra; Gomez, 149 Ariz. at 226.] Council members also become privy to confidential governmental information regarding officers, appointees and employees of the municipality, regarding claims, judgments and liabilities of the municipality, and regarding other aspects of municipal operations. [ARS § 38-431.03(A) and (B); Opinion No. 82-14, supra, p.5] Thus, although the facts do not make it clear what powers are exercised by the inquiring attorney-city council member, we will presume for this analysis that the attorney exercises those just listed.
We note also that attorney-city council members cannot be said to "represent" the cities in which they serve because they typically would not substitute themselves for that city. [Opinion No. 89-04 (May 3, 1989), p. 6; Opinion No. 92-6 (June 19, 1992), p. 5] In the same vein, such cities would not be their "clients" because the city would not typically seek or receive advice from the attorney-city council member in matters pertinent to the legal profession. [Opinion No. 92-6, supra, at p. 3; Foulke v. Knuck, supra, 162 Ariz. at 520.] However, in our Opinion No. 82-14, supra, incumbent attorney-city council members were considered "public employees" for purposes of DR 9-101(B) which restricted acceptance of private employment in matters in which the attorney had substantial responsibility while a public employee. The new language of ER 1.11(a) and (b) now refers to a "public officer or employee". This certainly would include attorney-city council members. [See, ARS §§ 38-502 (2) and (8), and 12-820 (1), (5) and (6).] Furthermore, a municipal corporation as an entity (and its constituent departments, offices and employees) would clearly be "persons" for purposes of ER 1.7. [See, ARS § 1-215 (24).]
From the above it is evident that ER 1.7(b) prohibits the inquiring attorney-city council member from representing criminal defendants in Magistrate Court, and will also prohibit his representing such defendants in Justice Court or Superior Court if city police officers arrested and will testify against those defendants. The attorney-council member's responsibilities to the city, its police department and its police officers (third persons), will materially limit the attorney's representation of the criminal defendant in those circumstances. Such limitation might be something as simple as hesitancy to aggressively cross examine a police officer, or to embarrass the city or question its policies. Or, it may be something more complex such as the inability to use confidential governmental information because of ER 1.11(b) or ARS §§ 38-431.03(A) and (B), and 38-431.07, which information would benefit the client's defense. Of course ER 1.7(b) (2) permits the representation to continue if the client consents after consultation. But that exception does not apply "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances. . .". In that case, "the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent. . . ." [Comment, Rule 1.7; see also, Sellers v. Superior Court, supra, 154 Ariz. at 286.] Given the pervasive responsibilities that a city council member has to his or her city, and its officers and employees, a disinterested lawyer would almost certainly conclude that the client should not agree to the representation under these circumstances. Furthermore, independent of client consent, the representation must reasonably appear not to be adversely affected by the attorney-council member's other interests. (See, Code Comparison, ER 1.7.) That is not the case here.
Because the inquiring attorney is also a deputy public defender, ER 1.10(a) will serve to prohibit any attorney in the public defender's office from representing defendants in the Justice Courts when the city council member's police officers testify against those defendants. Normally ER 1.10(a) would not apply to governmental offices, and "infectious disqualification" was not applied to public defender's offices in this committee's opinions prior to adoption of the present Rules of Professional Conduct. [See, Opinion No. 83-8 (December 26, 1983).] However, the committee's recent Opinion No. 89-08 (October 19, 1989), pp. 2-3, expressly found a public defender's office to be a "firm" within the meaning of ER 1.10 and, therefore, to be subject to disqualification under that rule. [See also, Opinion No. 92-7 (June 19, 1992), p. 5.] Furthermore, disqualification of the entire public defender's office under ER 1.10(a) cannot be waived by the defendant under ER 1.10(d), for the same reasons that waiver was improper under ER 1.7.
We do not know, under the present facts, whether the inquiring attorney has participated personally and substantially as a city council member in matters to which his representation of a particular criminal defendant would be connected, as prohibited by ER 1.11(a). "Matters" in this context are defined in ER 1.11(d) as including -
"(1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and
(2) any other matter covered by the conflict of interest rules of the appropriate government agency."
While a city council member in Arizona would not routinely be involved in matters relating to the case of a particular criminal defendant, the nature of the office does suggest that eventuality. In our Opinion No. 75-8 (May 27, 1975), this committee noted, under the former Code of Professional Responsibility, that -
"As a city councilman, the lawyer is publicly employed and in that capacity has substantial responsibility in matters of the police department and its officers. DR 9-101(B) prohibits a lawyer from accepting private employment in matters where he had substantial responsibility while a public employee. . . .DR 9-101(B) is therefore applicable."
The level of involvement must certainly be more than attending a meeting [see, Opinion No. 73-19 (June 15, 1973)] or helping pass an ordinance [see, Opinion No. 82-11 (May 28, 1982)], but it need not rise to the level of "representing" the public agency. [See, Opinion No. 89-04 (May 3, 1989, p.5).] Referring again to the former rule, the Arizona Supreme Court said in Security General Life Ins. Co. v. Superior Court, 149 Ariz. 332, 718 P.2d 985 (1986):
"The level of involvement required to trigger consideration of the rule is that at the least [Mr.] Low must have been aware of the details of the investigation and have had some hand in its resolution and day to day progress.... 'substantial responsibility' requires the official to become personally involved to a material degree in the investigative or deliberative process regarding the transactions in question."
[Id. at 334] City council members can be involved in proceedings, determinations, contracts, claims, controversies, investigations, charges, and accusations relating to police policy, police personnel, police discipline, specific police actions, etc., which could be directly related to the case of a particular defendant. In that event, ER 1.11(a) would come into play to bar the inquiring attorney-council member's representation of that client, unless the city consented after consultation. [See, Opinion No. 83-15 (December 6, 1983) (permitting an attorney to accept consent of a governmental body to a conflict of interest and appearance of impropriety under prior rules).]
Similarly, we do not know if the attorney-city council member has or would have confidential government information about a police officer or other city employee or officer, acquired as a council member, where the interests of that employee or officer are adverse to those of the criminal defendant and where the information could be used to the advantage of the defendant and to the material disadvantage of the employee or officer [as prohibited by ER 1.11(b)]. Such "confidential government information" is defined in ER 1.11(e) as -
". . .information which has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose, and which is not otherwise available to the public."
ARS § 38-431.03(A) provides for city councils to convene into executive session and there to learn and discuss information regarding personnel and legal matters which cannot then be dis-closed publicly per ARS § 38-431.03(B). In the event such information related to a particular police officer or other employee who would be a witness in a criminal defendant's case, ER 1.11(b) would prohibit the attorney-council member's representation of that defendant.
It should be added that ER 1.11(a) and (b), on their face, relate to representation of private clients after an attorney has been a public employee or officer. However, several of this committee's prior opinions have made it clear that what an attorney cannot do after leaving public employment cannot be done during the public tenure. [Opinion No. 74-28 (September 24, 1974); Opinion No. 75-8 (May 27, 1975); Opinion No. 78-7 (February 23, 1978); and Opinion No. 82-14 (October 12, 1982).] That reasoning still applies.
The inquiring attorney has asked if he may represent criminal defendants prior to trial, even if the rules prohibit his appearing in Justice Court when city police officers are involved. The answer, of course, must be no. The term "representation" is defined as substituting oneself for the client. [Opinion No. 89-04, supra, p. 6; Opinion No. 92-6, supra, p. 5] If representation is prohibited by ER 1.7(b), ER 1.11(a), or ER 1.11(b), then that covers every action whereby the inquiring attorney substitutes himself for the criminal defendant, including plea negotiations.
The jurisdiction of this Committee on Rules of Professional Conduct is determined by its "Statement of Jurisdictional Policies". Paragraph 6(a) of that Statement says that the committee will not render opinions on pure questions of law, although it may render an opinion on mixed questions of law and ethics. Although this opinion has discussed the issue of court disqualification, the determination as to whether a court would rule against the inquiring attorney on a motion to disqualify brought by the State is beyond our purview. Also, we can only direct the inquiring attorney to Article 8, Chapter 3, Title 38 of the Arizona Revised Statutes (ARS §§ 38-501 et seq.) for consideration of the Arizona conflict of interest statutes and how they might come into play in such circumstances.
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.
©State Bar of Arizona 1993
Call the State Bar of Arizona Ethics Department at (602) 340-7236 for a copy of this Opinion.
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OPINION NO. 93-07
(Supplemental)
October 26, 1993
In our Opinion No. 93-07 (June 24, 1993), the inquiring attorney was stated to be a deputy public defender in a rural Arizona county. He was assigned to try cases in three of the five justice courts in that county. The attorney had recently been appointed to fill a vacancy on the city council of a city in the county which was located within one of the justice precincts where the attorney is assigned to try cases. Nothing has been found in state, county or city statutes, ordinances or rules to prevent the attorney, as a county employee, from holding an elective position with the city.
Based on these facts, our opinion concluded that the inquiring attorney-city council member was ethically prohibited from representing criminal defendants in the justice (and superior) courts of the state if police officers of the city on whose council the attorney serves arrested and would testify against those defendants.
Upon receiving that opinion, the inquiring attorney requested reconsideration. In addition to arguing that the opinion had misconstrued In Re Ethics Opinion No. 74-28, 111 Ariz. 519, 533 P.2d 1154 (1975) and Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986), the attorney offered the following additional facts for consideration:
(a) Since December, 1992, the attorney had not represented and would continue not to represent any client in the magistrate court of the city on whose council he serves;
(b) Since December, 1992, the attorney had not represented and would continue not to represent any client in any action against the city on whose council he serves; and
(c) He would voluntarily recuse himself in his position as city council member from participating in the discussion of, and from voting upon, all matters concerning individual police officers or employees or other police affairs of the city, except for voting on the city's final overall budget.
Since our Opinion No. 93-07 was premised upon the inquiring attorney-city council member exercising all of the powers granted to him under Arizona law ( see page 9 of that opinion), we voted to issue this Supplemental Opinion to consider and deal with these additional facts.
QUESTION
If the inquiring attorney-city council member voluntarily limits his activities (both as an attorney and as a city council member), as set forth in the additional facts provided, may he ethically represent criminal defendants as a deputy public defender in justice (and superior) courts when the defendant has been arrested by a police officer of the city on whose council the attorney serves?
(2) the client consents after consultation....
(2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.
Before focusing on the present Rules of Professional Conduct and their impact on the question presented, we note that our initial Opinion No. 93-07 reviewed some of our earlier opinions construing and applying the prior Code of Professional Responsibility, as well as the Arizona Supreme Court's holding in In Re Ethics Opinion No. 74-28, 111 Ariz. 519, 533 P.2d 1154 (1975). That Opinion concluded that, under the prior Code, attorney-city council members could not represent criminal defendants (a) in their city's courts, or (b) in other courts of the state when their city's police officers were witnesses against those defendants.
One of our earlier opinions considered was Opinion No. 82-14 (October 12, 1982). It involved voluntary safeguards proposed by an attorney-city council member similar to those outlined in the additional facts provided by the inquiring attorney. That attorney-council member proposed to: (a) refrain from participating in his firm's personal injury action against the city, either as a firm associate or as a council member; (b) not share directly in the fee which might be received by the firm; and (c) refrain from any discussion of the case with other council members or city employees. The attorney-council member also proposed to announce to the council that his firm practiced in the city's magistrate court, and then refrain from: (1) discussing magistrate court cases with other members of his firm; (2) discussing the performance and retention of the city magistrate with other council members; and (3) voting as a council member on any issue regarding the city magistrate.
In light of these proposed safeguards, one of the questions presented in that opinion was whether the "adverse interest" of that attorney-council member was "sufficiently insulated" to allow members of his firm to practice criminal or civil litigation when city employees (including city police officers) were adverse parties or witnesses. The answer to that and related questions was "no".
In reaching those conclusions, Opinion No. 82-14 carefully considered the Supreme Court's prior holding in In Re Ethics Opinion No. 74-28, supra. Opinion No. 82-14 acknowledged that In Re Ethics Opinion required a "common sense solution which protects the public and yet makes available to public bodies the active participation of attorney members." The opinion then considered the safeguards which that holding authorized in order for members of attorney-council members' firms to appear before city councils and city boards and commissions. However, Opinion No. 82-14 concluded that those safeguards were only workable in the context of such public appearances because they were open to public scrutiny. They were not workable, it concluded, in the context of civil litigation. They also were insufficient to change the effect of our Opinion No. 75-8 (May 27, 1975) which had earlier prohibited attorney-city council members (and members of their firms) from representing criminal defendants in any court where witnesses against them were officers of the city police department.
Thus, the additional facts provided by the inquiring attorney here would not change the original conclusion of Opinion No. 93-07 that, under the prior Code of Professional Responsibility, the inquiring attorney could not have represented criminal defendants in justice (or superior) courts where the city's police officers had arrested those defendants or would testify against them. Furthermore, the safeguards outlined in the Supreme Court's holding in In Re Ethics Opinion No. 74-28, supra, were not applied to such court appearances involving city police officers, but were limited to public appearances before legislative bodies.
The new Rules of Professional Conduct were adopted in Arizona effective February 1, 1985. Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902 (1986) was decided during the following year. The inquiring attorney's voluntary limits on his activities, set forth in the additional facts provided, appear to have been patterned directly after the facts in Gomez.
However, Gomez does not control this ethical inquiry. It deals with the legal issue of disqualification. It involved a prosecutor's motion to disqualify defense counsel because defense counsel was a city council member and his city's police officers had arrested the defendants and were to testify against them in superior court. Gomez referred to our earlier Opinion No. 75-8, supra, which held that attorney-city council members may not ethically represent a criminal defendant in any court where witnesses against that defendant are officers of the city's police department. It then noted that Opinion No. 75-8 was based on the "appearance of impropriety" standard in the former Code, as well as the control and influence that attorney-council members have over their city's police officers. [Id. at 224] Gomez did not overrule our Opinion No. 75-8. Instead, it went on to find that the "appearance of impropriety" standard had survived in Arizona as part of "conflict of interest" in the new Rules of Professional Conduct, and then reiterated that an appearance of impropriety should not necessarily result in disqualification of defense counsel in every case. [Id. at 225]
Saying that it viewed with suspicion motions by opposing counsel to disqualify a party's attorney (based on conflict of interest or appearance of impropriety), the Court held that, in that case, disqualification should not have been granted because: (1) it resulted in harassing the defendants; (2) the State had not shown that it would be damaged by failure to disqualify the attorney-council member (and there being no record that the police officers were actually hesitant to testify); (3) the attorney's recusing himself from participating in matters directly involving the police department (and removing himself and his firm from cases either against the city or in city court) had made the danger of actual conflict appear minimal; and (4) possible public suspicion raised by the attorney-council member's representation of the defendants in superior court was too remote to outweigh depriving them of an attorney in whom they had expressed confidence and whose disqualification could possibly cause them harm. [Id. at 226]
In that case and context, the defense attorney-council member's willingness to recuse himself from participating in matters directly involving his city's police department (and to remove himself and his firm from cases either against the city or in city court) was said to minimize the danger of actual conflict. But the court also considered other factors. It is unclear, for example, whether the same safeguards would have been sufficient if the State had shown that the police officers were, in fact, hesitant to testify because of defense counsel's position on the city council, or that granting the prosecutor's motion would not have resulted in harm to the defendants.
Gomez did not purport to review the prior ethics opinions of this committee, nor did it overrule any of them. [Id. at 225, 226] It did not decide the ethical issue of attorney-city council members representing criminal defendants where the city's police officers are involved. Thus, it does not support the proposition that (under the new Rules) voluntary limits on an attorney-council member's activities (like those set out in the inquiring attorney's additional facts) will necessarily permit that attorney to represent criminal defendants in justice (and superior) courts when the city's police officers are involved.
Considering and applying the new Rules, our initial Opinion No. 93-07 concluded that ER 1.7(b) prohibits the inquiring attorney-city council member from representing criminal defendants in justice (and superior) courts if the city's police officers arrested and will testify against those defendants. That conclusion came from the attorney-council member's responsibilities to the city, its police department and its police officers, and the material limitations those responsibilities would place on the attorney's representation of criminal defendants when city police officers are involved. Taking into account the inquiring attorney's indication that he will voluntarily limit his participation in discussions of and votes upon all matters concerning individual police officers or employees or other police affairs of the city, that will limit the attorney's control and influence over any police officers who become involved as witnesses against his clients at trial. The question remains, however, whether the attorney's continued ability to vote on the overall budget (including the police budget), and thus to participate in determining police staff levels and salaries, as well as his ongoing responsibilities to the city in general, will continue to limit materially his representation of criminal defendants when city police officers are involved. [See A.R.S. §§ 9-239(A); 9-240(B) (2) ; and 9-274(A)(2 ); Opinion No. 75-8, supra; Opinion No. 78-7 ( February 23, 1978 ); and Opinion No. 82-14, supra.] The answer must, realistically, be "yes".
Even if an attorney-city council member should consciously limit his direct involvement with police officers and employees or "police affairs", the very nature of his position as a legislative, executive and quasi-judicial authority of the city is likely to result in a conflict of interest when the city's police officers appear against his clients in court. It may manifest itself in such things as hesitancy to cross-examine a police officer aggressively, or reluctance to raise issues that would embarrass the city or question its policies. [See e.g., A.R.S. §§9-239; 9-240; 9-274; 9-275; 9-276; 9-284; 9-303; 9-462.01; 9-462.06; In Re Ethics Opinion No. 74-28, supra, at 520.] As was shown at page 9 of our initial Opinion No. 93-07, a city council member's duties and responsibilities to the city are so extensive that limiting the council member's direct involvement with police officers and "police affairs" does not significantly limit those responsibilities. Thus, the inquiring attorney's responsibilities to third persons (the city on whose council the attorney serves) will still limit his representation of criminal defendants when city police officers are involved, in violation of ER 1.7(b). Furthermore, even though ER 1.7(b) permits a criminal defendant to agree to such a conflict after disclosure, a disinterested attorney would certainly conclude that the client should not agree under the circumstances. Finally, independent of such consent, the attorney-council member cannot reasonably believe that the representation would not be adversely affected under the circumstances. [See ER 1.7(b)(1).]
It should be noted that the inquiring attorney's willingness to recuse himself in specific matters involving "police affairs" will not always effectively keep him from otherwise becoming aware of the details of investigations, or from having some hand in the day-to-day progress of a "matter". Thus, the attorney may still become personally involved to a material degree in an investigative or deliberative process which would be related to the case of a particular defendant. [See Security General Life Ins. Co. v. Superior Court, 149 Ariz. 332, 334, 718 P.2d 985, 987 (1986).] In such a case, ER 1.11(a) would still apply to prevent the attorney from representing that criminal defendant, unless the city consented after consultation.