Ethics Opinion

Opinion No. 78-14

December 1978

Summary: An elected city councillor, who is an attorney, may represent criminal defendants brought into the district court, either by summons, warrant or arrest by the city police department, where his office has no significant influence over police department rules, salaries, budget, hiring, or any other source of interest or direct contact. Our Opinion 78-1, concerning town and city counsel, does not apply because this attorney's law practice does not involve representing the police department or other city interests. Problems concerning statutory conflict of interest under G.L. c.268A cannot be considered by this committee.

Facts: Attorney was elected councillor-at-large of a city. He asks whether he can represent criminal defendants who are brought before the local district court, either by summons, warrant, or arrest by the city police department. According to his letter:
The City operates under a Plan B form of government. Along with the statutory powers granted to the City Council, the City Charter refers to areas of direct influence over the Police Department. I do not have any bargaining powers over the Police Department, do not have authority to hire (only confirm) or fire, do not have authority to promulgate rules and regulations that directly affect the Police Department and cannot appropriate funds for the Department. The only area of direct contact that I could have is the power to attempt to delete from the budget certain amounts. Even in this area it is questionable whether or not such a deletion would be an unfair labor practice as a breach of their contractual agreement with the City.
The attorney also made a request for an opinion from the city solicitor, pursuant to G.L. c.268A, S22, who found that there was no statutory conflict of interest.
Discussion: Pursuant to our rules, we cannot give an opinion as to whether this case would be a violation of G.L. c.268A or any other conflict of interest statute. "The committee will not give any opinion which relates solely to ... (6) a question of law ... ." Committee Rule 3.
The relevant rules of professional ethics, under Supreme Judicial Court Rule 3:22, are DR 5-101(A), "Except with consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own ... personal interests," and DR 9-101(B), "A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee," and (C), "A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal ... or public official." The last two rules are to read under the guidance of EC 9-2, which urges all lawyers to act in a manner which "promotes public confidence in the integrity and efficiency of the legal system ... ."
In our Opinion 78-1, we stated that, in our opinion, the need to protect against an "appearance of impropriety" curtail town counsel and city solicitors from representing criminal defendants in: (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.
But this case involves an attorney who is not representing city interests as a lawyer, nor does he have, or pretend to have, any influence over the police department or any tribunal, as a result of his office. Finally, provided that he make full disclosure of his city office and receive the consent of any criminal defense clients, there are no problems with DR 5-101(A), nor are there any grounds to believe that the attorney's office would impair his professional judgment in representing such clients.

Permission to publish granted by the Board of Delegates on November 1, 1978. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.