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OBA Ethics Counsel

Ethics Opinion No. 70

Adopted May 25, 1934

A member of The State Bar is a mayor of a city and as such receives a salary of fifteen dollars per month. Under the charter, the mayor is authorized to appoint a city attorney whose salary is fixed by ordinance, and also a judge of a municipal court. The charter and ordinances are silent as to the causes for, and as to the method of, the removal of the municipal judge.

At the time the member of the Bar assumed the office of mayor an ordinance provided that the city attorney, in addition to his salary, should receive the sum of two and one-half dollars for each conviction or plea of guilty in the municipal court. The member of the Bar, in order, as he states, to save the city the expense of the salary of the city attorney, acted as city attorney and as such advised the city commissioners on legal propositions and appeared as city attorney in police cases pending in the municipal court and received personally the two and a half dollars upon each conviction or plea of guilty in that court.

Subsequently, the ordinance authorizing the payment of two and one-half dollars to the city attorney for each conviction or plea of guilty was repealed, and the city attorney now receives no compensation in addition to his salary for appearing in police court cases.

Since the passage of the ordinance last referred to the member of the Bar continues to perform the duties of city attorney including the prosecution of criminal cases in the municipal court, without compensation other than his salary as mayor. This was the situation when the request for an opinion was made.

The question is, is it proper for the member of the Bar, in question, to act as such city attorney while occupying the office of mayor and as such to appear for the city in prosecutions in the municipal court?

In response:

(1) The inequity of the situation presented is apparent whether or not the mayor--city attorney received a fee based upon conviction or not. The municipal judge is the appointee of the mayor. The power to appoint includes the power to remove. The tenure of the office of the judge was dependent upon the person who appeared as the city prosecutor. While the fee arrangement existed the prosecutor had a pecuniary interest in the result of the prosecution and the person who occupied the office of judge, in the continued tenure of his office; after the fee arrangement was discontinued, the tenure of the person in office who occupied the position of judge was dependent upon the favor of the person who appeared as city prosecutor. In Advisory Opinion No. 8, vol. 25, Reports of the State Bar for 1931, the Board had occasion to consider a similar situation. In quoting from the opinion of Chief Justice Taft in Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 it was said:

"Every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to render a verdict against the defendant or which might lead him not to hold the balance nice, clear and true between the plaintiff and the defendant, denies the latter due process of law."

The practice of the member of the Bar who occupied the position of mayor of appearing as prosecutor for the city in cases pending in the municipal court, under the circumstances detailed, is condemned as being un-American and in violation of the due process of law clauses; and so far as the member of the Bar is concerned, as being in violation of Rule 31 of the rules of professional conduct which requires him to strive at all times to uphold the honor and to maintain the dignity of the profession and to improve the administration of justice.

(2) While the charter and the city ordinance quite evidently contemplate that the office of mayor and the position of city attorney should be separate and distinct, one from the other, it is not conceived that the situation presented as to the performance of the other duties of the city attorney involves a question of legal ethics. Therefore, no opinion is expressed upon that phase of the matter.