April 24, 1969
Ethics Opinon 1969-1
SUBJECT: CONFLICT OF INTEREST
Misdemeanor violations of the Vehicle Code which occur within the City of San Diego are prosecuted in the name of the People by the City Attorney or his deputies and ordinarily the prosecuting witness is a City of San Diego police officer. Four questions are presented:
1. Is it professionally proper for a member of the City Council as an attorney to represent defendants charged with misdemeanor violations of the Vehicle Code which occur within the City of San Diego?
2. Is it professionally proper for a partner in a law firm in which a City councilman is a member to represent such defendants under such circumstances?
3. Would the answers to questions one and two be the same if the client is charged with violation of a city ordinance?
4. Would the answers to questions one and two be the same if the District Attorney was prosecuting and the witness was the San Diego Police Department?
The answers to Questions one and two are in the negative, and the answers to Questions three and four are in the affirmative.
STATUTES AND CANONS
Canon 6 of the Canons of Professional Ethics provides that:
"It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
". . . The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed."
(See also California Rules of Professional Conduct, Rule 5 and Rule 7.)
Canon 37 of the Canons of Professional Ethics states that:
"It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client."
(See also California Rules of Professional Conduct, Rule 5 and Rule 6.)
Michigan Ethics Opinion No. 139 holds that a councilman may not represent those accused of crime where the police are the witnesses.
American Bar Association Formal Opinion No. 192 provides that an attorney holding public office should avoid all conduct which might lead the layman to conclude that the attorney is utilizing his public position to further his professional success or personal interests. (See also A.B.A. Formal Opinions Nos. 16, 30, 34, 77, 118 and 134 as well as Canons 29 and 36.)
American Bar Association Informal Unpublished Opinion No. 284 held that the fact that an attorney may be prohibited does not permit his partner to do what attorney may not do. Even two lawyers who share offices, though not partners, bear such close relation to one another as to bring Canon 6 into play.
The concept of conflict of interest involves not only the duty not to represent conflicting interests, but also the duty not to disclose or abuse professional confidences. It is incumbent upon an attorney not only to avoid a present conflict of interest, but also to guard against the possibility that one will develop. Drinker, page 104.
In the facts given, the attorney-councilman is not functioning in his capacity as an attorney while functioning as a councilman and conversely he is not functioning as a councilman when he is functioning as an attorney; however, the fiduciary functions of each require that Canon 6 be invoked.
As a councilman, it would be the duty of attorney to support the police witness. As a defense attorney, it is his duty to attack the police witness. Herein lies but one conflict.
As a councilman, it would be the duty of attorney to upgrade the quality of police officers. As a defense attorney, he would not seek such upgrading of education and skill. Herein lies another conflict.
The numbers of conflicts, actual and reasonably potential is too great to list.
The situation is likened to an attorney employed by a corporation who accepts cases against it. This is prohibited. Drinker, page 11. A.B.A. Committee, Unreported Opinion No. 289.
In addition, the attorney's conduct might lead laymen to conclude that the attorney is utilizing his public position to further his own interests.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: The Committee reviewed this opinion on July 23, 1976 and found that the conclusion is valid. Note that effective 1/1/75, Rule 5 is Rule 4-101 and Rules 6 and 7 are 5-102; the California Rules now require the client's consent be in writing. The subject matter of the cited A.B.A. Canons is now found in Canon 5 of the A.B.A. Code of Professional Responsibility.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.