Ethics Opinions

Opinion No. 78-1

Summary: Neither an attorney employed as town counsel or as town prosecutor, nor any member or associate of his firm, may properly represent a criminal defendant in the trial or appeal of (1) a case in which the town has an interest, such as a charged violation of a town bylaw, or (2) a case in which he, or any police or other officer of the town is involved as complainant, prosecutor or witness. In addition, if the attorney is employed as town prosecutor, neither he nor any member or associate of his firm may properly represent a criminal defendant (3) in cases prosecuted by the State Police, if he prosecutes cases in his town in which the State Police are thus involved, or in cases prosecuted by the local district attorney's office, if he works out of that office as town prosecutor.

Facts: Two related inquiries have come from attorneys employed by towns as town counsel or as town prosecutor, who ask whether they (and members of their firms) may properly represent criminal defendants in the local district and superior courts.
(1) Attorney A as the town counsel in the Town of X is counsel for the selectmen of the town, receiving a retainer from the town. His firm (A, B & C) has contracted with the county commissioners in his county to represent indigent criminal defendants in the local district and superior courts. A substantial number of misdemeanor cases heard in these courts are based on complaints signed by police officers of the Town of X. These cases are prosecuted by the town prosecutor, and the police officers of the town are often witnesses for the prosecution. Attorney A asks whether he and other members of his firm may properly represent indigent criminal defendants in the local courts on matters involving the police department of the Town of X.
(2) Attorney P is the town prosecutor in the Town of Y, appointed by its selectmen to prosecute misdemeanors and some felonies in the local district court. He is also in private practice handling civil and criminal cases in the local and other district courts and in the local superior court. He asks whether he may properly represent criminal defendants (1) in the local district court in cases in which his town and its police department have no interest, and (2) in other district courts and the superior court in cases in which his town and its police department have no interest?

Discussion: Both Attorney A and Attorney P are "municipal employees" subject to the limitations placed upon all such employers by G.L. c.268A, S17, as noted in our Opinion 76-9.
But since each has a continuing relationship with his client-town, representation of a criminal defendant in a case in which the police officers of the client town are involved would create a very real appearance of professional impropriety which is proscribed by Canon 9 of SJC General Rule 3:22. A lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, EC 9-2. A lawyer should promote public confidence in our system and in the legal profession, EC 9-1. Every lawyer owes a solemn duty to conduct himself so as to reflect credit on the legal profession and to inspire the confidence, trust and respect of the client "and of the public" and to strive to avoid not only professional impropriety but also the appearance of impropriety, EC 9-6. It has been stated in ABA opinions and in our statutes that an attorney in the public employ should so conduct himself as to remain above all suspicion, even if there must be personal financial sacrifice. See ABA Formal Opinion 30 (1931), and G.L. c.268A, S23.
Where a lawyer is required to decline employment on account of conflict of interest, or the appearance thereof, no partner or associate of his may accept or continue such employment. See DR 5-105(D), and the discussion in our Opinion 76-19.
We turn now to answer the two specific inquiries before us, in the light of the foregoing general principles.
(1) The specific instances in which an impermissible appearance of impropriety where town counsel in the Town of X (or a member of his firm) would represent indigent criminal defendants under contract with the county commissioners appear to be limited to two situations:
(a) Where the defendant is or was charged with a violation of a bylaw of the Town of X. Here the Town of X is a party plaintiff to the proceeding, and representation of the defendant would involve the lawyer in a clear conflict of interest. See our Opinion 76-19, holding that under DR 5-105(C), a lawyer cannot properly represent both plaintiff and defendant in the same suit, since it is not "obvious that he can adequately represent the interest of each." As town counsel, the lawyer owes his client, the Town of X, a general obligation to advance its interests, or at least not to oppose them. In view of the express provisions of G.L. c.268A, S23, that "no employee ... of a municipal agency pursue a course of conduct which will raise suspicion among the public that he is likely to be engaged in acts that are in violation of his trust," we believe that in any event securing consent of the Town of X through its selectmen would not render the representation of the indigent defendants proper, even if the defendant also consented "after full disclosure of the possible effect of such representation on the exercise of (the lawyer's) professional judgment" on his behalf.
(b) Where the defendant is being prosecuted in a case in which the town counsel, or any police officer or other officer of the Town of X, is or was involved as complainant, prosecutor or witness. See Geraway v. Commonwealth,--Mass.--,301 N.E. 2d 814 (19--), where it was held improper for a lawyer both to represent a criminal defendant at his trial, and to represent witnesses adverse to his client's trial position in unrelated civil matters on a contingency basis. Here the town officers who are involved in the case should not be confronted by town counsel in an adversary capacity.
Town counsel's dual representation of indigent clients and of the town creates an appearance of impropriety, even if none exists. See EC 9-3. The town counsel wears the mantle of an appointed public official, and in that capacity drafts town ordinances and advises the town on the legality and constitutionality of its actions. Consequently, when town counsel places himself in the position of defender of indigent clients, who are seeking to defeat complaints issued or prosecuted by the town's police department or other officers, it gives the appearance that the town counsel has accepted private employment, in a matter in which he had substantial responsibility as a public employee.
(1) Accordingly, in order to maintain and improve the level of public confidence in the profession and the administration of justice, we conclude that it is necessary for lawyers to refrain from representing clients in instances such as this where, although no actual or real conflict may exist, an appearance of impropriety is apparent.
(2) Where the lawyer is town prosecutor of the Town of Y, he is equally subject to the limitations with regard to representation of indigent criminal defendants imposed on town counsel in (1) above. The inquirer recognizes these limitations, and asks only to represent criminal defendants in cases in which the Town of Y and its police offices have no interest.
With the exceptions noted below, we find nothing in the Code of Professional Ethics (SJC General Rule 3:22) to prohibit the proposed representation of criminal defendants. In Opinion 76-26, we decided that the associate of an assistant district attorney whose office handles all the criminal prosecutions in a county could not properly become involved in any way with the defense of any criminal matter in the county. In the present case, the town prosecutor's duties are limited to cases arising in his own town. In representing only criminal defendants whose cases arise in other towns, he would not be opposing the police officers of his own Town whom he represents as town prosecutor. Nor would this position appear to give him any advantage in his representation of these defendants.
(3) Certain limitations must be noted. The town prosecutor could not properly represent any defendant on appeal from a district court conviction in a case prosecuted by him, or in a case procsecuted on complaint brought by the police officers of his town. Nor could he properly represent any defendant being prosecuted on complaint of the State Police in any court, if he prosecutes cases arising in his town on complaint of the State Police. Finally, if the town prosecutor works out of the local district attorney's office, he could not properly represent any defendant being prosecuted in any court by the local district attorney.


Permission to publish granted by the Board of Delegates, 1978. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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