C-212

March 14, 1975

THIS OPINION WAS SUPERSEDED BY R-13 (9/27/91)

SYLLABUS

1. A city attorney may not represent a person charged with a violation of an ordinance in the city attorney's employing community nor may a city attorney represent a person charged with a criminal act occurring in the city attorney's employing community under a state statute analogous to an ordinance of the employing community.
2. A city attorney should not represent any party except the city attorney's employing community in any court in any case involving the effect or consequences of acts or omissions of any official or employee of the employing community.
3. No partner or associate of a city attorney may do any act or undertake any representation which would be improper if done by the city attorney.
4. A city attorney otherwise possessing the right to conduct a private law practice in addition to discharging duties as city attorney may defend persons charged with criminal or ordinance violations in relation to offenses not having occurred in the city attorney's employing community, even if the ordinance or analogous statute alleged to have been violated is the same or similar in context to a comparable ordinance of the city attorney's employing community. However, in order to avoid the appearance of impropriety, the city attorney should carefully consider the propriety of accepting representation of defendants in cases arising in communities immediately adjacent to the city attorney's employing community.

References: MCPR 9-101(B) and (C); Op 193. CI-1000 is superseded to the extent inconsistent with this opinion.

TEXT

A lawyer asks whether as city attorney, or as a lawyer employed as counsel for a municipality and charged with the responsibility for the prosecution of crimes and misdemeanors under city ordinances, the lawyer may handle the defense of criminal cases in the same and other jurisdictions and political subdivisions.

For the purpose of this opinion we shall consider that the appellation "city attorney" applies not only to lawyers for cities, but also to lawyers for villages, townships, so termed metropolitan districts and to lawyers hired (as distinguished from elected) to represent counties in civil matters; we shall refer to them generically as city attorneys.

The Michigan Code of Professional Responsibility adopted by the Supreme Court replaced, but essentially does not differ greatly from, the former Canons of Professional Ethics. In that context opinions interpreting the former Canons are helpful, but where in conflict with the Code or contrary to evolving principles and requirements of modern day common sense construction, they are subject to being modified or overruled entirely.

We note the tendency to equate city attorneys to prosecuting attorneys, subject to the same degree of permissible conduct as well as similar restrictions on activities. Such comparison is invalid. The office of prosecuting attorney is constitutionally provided, and prosecutors are elective county officers whose duties and powers are provided by law (Sec 4 Art VII, Mich Const 1963). In Op 193 we stated:

"Although there appears to be no statutory prohibition against a prosecuting attorney engaging in private practice, and while the committee recognizes that sheer economic necessity may, in some instances, require that he be permitted to do so, particularly in counties financially unable to pay a prosecutor for full time services, it seems patent that abstention from engaging in private criminal practice is one price that such a public official must pay for holding that office."

As a further reasonable restriction, it was stated in Op. Attorney Gen. Feb. 21, 1956, No 2464, that a prosecuting attorney cannot represent either party in a civil action which depends upon the same state of facts on which any criminal prosecution depends.

On the other hand, as far as we are advised, city attorneys are not elected officials but are employed by a city or municipality, usually on a part-time basis and their duties may or may not include prosecution of violations or ordinances. In Op 193 we quoted and approved language from ABA Op 30 (1931) as follows:

"It is a well known fact that prosecutors are granted courtesies and assistance by the police departments, as well as the prosecuting authorities, of other cities and counties throughout the country. This practice is of great benefit to the administration of criminal justice. If prosecutors indulged in the practice of defending criminals in states other than their own, this helpful cooperation might easily and quickly be withdrawn. Other evils, detrimental to the proper enforcement of criminal laws, are not difficult to conceive, were prosecutors also acting as defenders of those accused of crime. Subjectively, the effect of such a practice upon the prosecutor himself must, in our opinion, be harmful to the interest of the public, whose service is the prosecutor's first and foremost duty."

Although our approval of the ABA language as noted supports the conclusion reached in Op 193, we seriously doubt that the rapport suggested as existing between a constitutional officer, elected to represent the People of the State of Michigan in the prosecution of crimes committed in the county, with law enforcement officers and officials in other counties and states, does or is likely to exist between part-time city attorneys with law enforcement officers and officials elsewhere in this or other states.

It seems highly incredible to believe that a part-time city attorney serving a community in the Upper Peninsula could not, with propriety and competence, represent a defendant charged with a violation of an ordinance - or an analogous state statute - in another city or county of the Lower Peninsula. The likelihood of such a lawyer enjoying any special advantage or "in" with the local officials where the case was to be tried is so remote that to proscribe the practice would appear unwarranted. See MCPR 9-101(B) and (C).

Nor do we perceive any conflict of interest should such defense counsel feel that in adequate representation of the client the lawyer must question the validity or constitutionality of an ordinance involved (or an analogous state law), even if that ordinance was similar or identical to one adopted in the lawyer's home community. An accused's right to adequate defense does not contemplate that counsel be bound to accept as gospel the validity or constitutionality of any law or ordinance. If the city attorney entertains doubt concerning a similar ordinance of the city attorney's own community, we assume the city attorney would suggest amendment or repeal of the law to the governing body, or express declination to prosecute and refer the matter to the prosecuting attorney for processing under the analogous state statute.

The majority of the protests against barring of city attorneys from defense of violations of ordinances and analogous statutes claim that such action would, in a great many counties, seriously hamper or actually eliminate the availability of lawyers for court appointment to represent indigent defendants. Letter after letter addressed to the committee and to the State Bar documented numerous situations where, if those whom we have grouped here as city attorneys (and their partners and associates who would labor under an identical restriction) were removed from the list of lawyers available for court appointed defense, there would be few—and in some instances none—left to assume such assignments. Such fact added to what has been said above, leads us to conclude that the suggested disqualification of part-time city attorneys to participate in defense of ordinance and statutory violations cannot be justified.

We do not feel the problem presented to be one that can be solved by application of geographical limitations such as 1969 P.A. 271 (MCLA 701.3) by which the legislature established 20 probate court districts in the 45 counties lying north of a line consisting of the northern boundaries of Muskegon, Kent, Montcalm, Isabella, Midland and Bay Counties (such line of demarcation being frequently referred to as the Bay-Muskegon line) and proceeded to mandate that probate judges in counties or districts below that line were prohibited from engaging in the practice of law other than as a judge while judges serving above that line were permitted to practice law privately in addition to discharging their judicial functions. The constitutionality of that act was upheld in Green v. Court Administrator, 44 Mich App 259 (1972). While most of the hardship cases called to our attention did involve counties north of the Bay-Muskegon line there were enough examples of hardship cited in areas below that line to negate any suggestion that geography alone is a viable answer.

On balance, we conclude that automatic disqualification of part-time city attorneys from representing persons accused of violating ordinances, or analogous statutes, cannot be justified. It would be improper for a city attorney to represent any party except the city attorney's employing community in any court in any case involving the effect or consequences of acts or omissions of any official or employee of the employing community.

CI-1000 is superseded to the extent inconsistent with this opinion.