Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Ethics Opinion No. 322

Inquiry:

May a city councilor who is also an attorney practice before the municipal courts of the city he is serving?

Opinion:

It is contrary to the ethical principles embodied in the Oklahoma Rules of Professional Conduct for an attorney who is a member of the city council to practice before the municipal courts of that city.

Under the facts presented, municipal court judges are selected by the city council. The city council also approves the city budget, including the budget for the administration of the municipal courts. This opinion approaches the issue on the assumption that, as councilor, the lawyer has not agreed to abstain from voting on all matters relating to the municipal courts. Abrogation of the lawyer’s duties and responsibilities as a city councilor in order to enable the lawyer to pursue matters in his or her own personal interests is not something that this panel will address. Such conduct should be evaluated in light of the ethics rules of the city, if any.

A city councilor appearing before a judge of the municipal court on behalf of a client will inevitably exert influence on that judge regardless of the councilor's intent. The city council is a relatively small legislative body with the power to retain or remove the judge and to set the compensation and other benefits of the judge. Rule 3.5(a) of the Oklahoma Rules of Professional Conduct ("ORPC") states that a lawyer shall not "seek" to influence a judge except as permitted by law or the rules of a tribunal. While simply being a member of the city council arguably is not an affirmative act committed with an intent to influence a judge, the inevitable influence that does result simply from the councilor’s practice before the court could certainly be comparable in effect to the proscribed conduct.

The number of the members of a city council and the number of municipal judges serving cities in the State of Oklahoma are both small. Thus, each interaction will result in an inevitable pressure or tension on the judge. It is assumed that in most situations, both councilor-attorney and judge will be able to rise above this pressure or tension. Nevertheless, the mere situation creates too much potential for an improper influential effect.

Rule 1.11 of the ORPC sets forth the specific restrictions on the activities of lawyers who are either former or current public officers or employees. While not specifically addressing this precise issue, the comment to Rule 1.11 states that this rule "prevents a lawyer from exploiting public office for the advantage of a private client." It notes that a lawyer employed by a government is still subject to the conflicts of interest provisions of Rule 1.7 and the requirements regarding confidential and privileged information in Rule 1.9. The comment asserts that a lawyer employed by a public body owes the same duties to that body that it would owe as a lawyer representing the body and adds:

"Where the successive clients are a public agency and a private client, the risk exists that power or discretion vested in public authority might be used for the special benefit of a private client. A lawyer should not be in a position where benefit to a private client might affect performance of the lawyer’s professional functions on behalf of the public authority. Also, unfair advantage could accrue to the private client by reason of access to confidential government information about the client’s adversary obtainable only through the lawyer’s governmental service."

Accordingly, the councilor-attorney who has influence regarding the employment and financial benefits of a judge has a conflict of interest by appearing before that same judge on behalf of a private client. In addition, the councilor-attorney would most often be appearing against the city prosecutor or other representative of the city. The councilor-attorney may have access to confidential city information not available to other lawyers. This could result in a violation of ORPC 1.7 and 1.9.

Oklahoma Bar Association Ethics Opinion 257, quoting ABA Informal Opinion No. 855 states, "[g]enerally speaking, any persons in public office, including attorneys, have as their primary duty that of performing the functions of the office in a wholly honest, impartial, and ethical manner." Opinion 257 further states that because such lawyers are before the public and being compensated by public tax money, "they must avoid not only all evil but the mere appearance of evil."1

In addition, Oklahoma Bar Association Ethics Opinion No. 282 states that it is not ethically proper for an attorney to practice law before various municipal boards, commissions, courts, and council when the attorney shares offices and associates on a number of cases with another attorney who is employed by the city in question as an assistant city manager. While these opinions were all rendered prior to the time of the adoption of the ORPC, the principles of the prior rules in this regard are consistent with the principles with the ORPC.2

This same improper influence, conflicts of interest, and confidential information concerns were addressed by the New Mexico Bar Association in its Advisory Opinion 2002-1, which stated, "[a] lawyer should refrain from representing clients before municipal tribunals over which the lawyer as a public official has direct oversight or fiscal influence. The lawyer’s obligations as a city councilor would not necessarily create an impermissible conflict with representation of clients adverse to the municipality, but may be so problematic that the best course of action likely will be to refrain from such representation."

Similarly, the same conclusion was reached by a number of other state bar associations. For example, in New Hampshire Bar Association Ethics Committee Formal Opinion #1988-89/12, relying on the New Hampshire version of Rule 1.11, states that "[a] lawyer who is also a member of a city council is clearly a lawyer-official who may not appear before the city council nor before any body whose members have been appointed by the city council." This opinion adds that under Rule 1.7 the lawyer-official would be "precluded from representing a client in litigation involving the city . . . due to the lawyer-official’s responsibilities to a ‘third person’, the city, or by the lawyer-official’s own political interests."

In conclusion, a member of the city council who appears before the municipal courts on behalf of a private client violates the ethical principles embodied in the ORPC that prohibit undue influence, conflicts of interest, and compromised confidential information.

1. Virtually the same issue was decided under the ORPC in Oklahoma Bar Association Ethics Opinion No. 305. This opinion, which opined that the elected official should not represent clients in matters pending before the municipal courts, was adopted in December of 1992 but was then withdrawn in November of 1994.

2. A very similar result was reached in Oklahoma Bar Association Ethics Opinion 200.