96-4.

• Court: Kansas

Kansas Ethics Opinion 1996. 96-4. 1996KBA Legal Ethics Opinion No. 96-4June 10, 1996 TOPIC: Conflict of Interest, County attorneys serving as municipal judges, and defending indigents in other counties. DIGEST: First, while Kansas case law is somewhat unclear, county attorneys may appear in court in other counties only if substantially removed from the operations of those courts and the former relationship with the defendant. Positional conflicts of interests, undefined by our Supreme Court, are also considered here, and regardless of whether the county attorney knew the defendant during private practice, makes it difficult to give a definitive answer to the first question posed. Second, we believe appearances of impropriety considerations applicable to all judges, including pro tem city judges, preclude service as county attorney and city judge in cities of the same county. Third, a county attorney may prosecute former private defense clients if the new offense is unrelated to the previous representation, the prosecution can be carried forth without impacting relationships with other clients or herself, and no information gained in the previous representation is relevant to the subsequent offense. Date of Request: April 25, 1996 REF: MRPC 1.6, 1.7, 1.9, 3.8, 7.5 Various cases, LEOs The function of the Kansas Bar Association's ethics advisory service is to respond to inquiries from Kansas lawyers concerning proposed conduct. The limitations on the service do not allow us to render an opinion re garding past conduct or the conduct of some one other than the inquirer. The following constitutes only the opinion of the Committee on Ethics-Advisory Services, and is not in any way intended to be a guarantee of a particular result or a conclusion by appropriate au thorities. Further, this letter constitutes the Committee's opinion based upon the facts and information contained in corre spondence above referenced. It is based upon a review of the disciplinary rules, model rules of professional responsibility and conduct, and applicable case law. This opinion is not a grant of immunity from any form of le gal or disciplinary pro ceeding. The opinion herein is that of a KBA committee without official governmental status. The Kansas Bar Association ex pressly disclaims any liability in connec tion with the issuance of this opinion. FACTS Two law partners with main offices in County "A" have a branch office in County "B." Partner X resides in "B" and for several years has served as municipal judge in one of the smaller towns in "B." Partner Y resides in "A," but also serves as a municipal judge pro tem in another small town in "B." Both partners are on the voluntary indigent defense panel in both counties. Counties A and B are adjoining counties, but not in the same judicial district. Partner X wants to run for county attorney in "B," has filed for the office and is currently unopposed. If elected X wants to name Y as the assistant county attorney for "B" county. The county attorney position in "B" is such that attorneys holding that office and their associates can maintain a private practice. QUESTIONS Three questions are posed to the Ethics Advisory Committee: May either of the partners remain on the appointment lists for indigent defense counsel in "A" when one or both of the attorneys is the county attorney in "B?" [1] May either of the partners maintain their municipal judgeships in cities of "B" while serving as county attorneys in "B?" Can a new county attorney prosecute a former private defense client if (a) the new offense is unrelated to the offense on which the attorney was defense counsel, and (b) no information gained in the former representation is relevant to the subsequent offense? ANALYSIS The number of previous KBA ethics opinions involving the private practice of city and county prosecutors is astonishingly high, until one remembers that the turnover rate of prosecutors in small counties is even higher. Attorneys move in and out of county attorney positions with rapidity. The previous opinions have wavered back and forth, often in response to state case law. We shall try to delineate a discernible line, based now on previous case law and the Model Rules. Indigent Defense Practice in County "A." We begin with the easiest observation. As county attorneys in County "B," inquiring counsel cannot represent any defendants charged with any crime in the courts of County "B." [2] This would include city courts in the County, since a zealous defense might require counsel to cross-examine sheriff's deputies or city police with whom as county attorney the attorneys work with on a daily basis, and if a prudent defense requires an appeal of the city decision to county district court, the public will wonder why their county attorney is defending someone in county court. While this may not raise actual conflicts, since the city attorney handles the prosecutorial side of an appeal, it may have political repercussions on the attorneys seeking reelection to the county attorney position. Regarding criminal defense work in County "A," it is commendable that both lawyers want to keep their private legal services available to defendants in County "A." However, the question is whether they can, or should, under the Model Rules, undertake such dual roles, since they clearly are adversarial in nature. The purpose of a defense counsel is to test the state's motives and evidence to the limits zealous advocacy and the rules of evidence allow. The credibility of state witnesses, many of whom are law enforcement officers with whom a county attorney works each day, is crucial in that test. The County Attorney, on the other hand, prosecutes or defends on behalf of the people all actions and proceedings, civil or criminal, in which the state or the county is a party or an interested party. Most county attorney positions are part-time. Thus in smaller counties, county attorneys also maintain a private practice. Because of the high turnover in such positions, myriad opinions of this committee since 1965 have discussed whether prosecutors can defend criminal matters in other counties. Our Supreme Court has analyzed those opinions as "appear[ing] conflicting at times." [3] They are briefly summarized here for their historical value: OPINION 28, Professional Ethics Committee of the Bar Association of the State of Kansas, dated May 8, 1965, states: "A county attorney, . . . may not, while in office, properly undertake the defense of one accused of a crime in another county." Based in part on Opinion 28, in KBA Legal Ethics Opinion (LEO) 80-48, we opined that a county attorney and assistant are completely barred from defending any criminal action in any matter while in office. Within a year, in LEO 81-2, we decided that a part-time assistant county attorney may represent criminal defendants in other counties so long as the attorney determines that those defendants have no past or pending actions in the county in which the attorney is assistant county attorney. And by LEO 81-30 of that same year, again we had opined a county attorney who also maintains a private practice may not represent criminal defendants in any county. "Where an attorney is disqualified from representation, all other members of the same firm are likewise disqualified. Therefore, no member of the county attorney's private practice firm may represent criminal defendants." We held differently in LEO 82-35, allowing a special prosecutor to do defense work in other counties so long as the lawyer is not so closely associated with the state as to create a general public opinion that the lawyer represents the state. In LEO 85-7, we held an attorney whose private law practice includes extensive criminal defense work may accept employment by a county attorney as special prosecutor of that case goes forward contemporaneously with criminal cases in which the attorney is defense counsel and the county attorney is prosecuting. And we made exceptions in LEO 82-24 for lawyers representing cities as prosecutors to serve indigent defendants in District Court (but not appeals from city court to district court). In LEO 83-37, we opined that county attorneys represent all persons in the state and it is improper for county attorneys to represent indigent defendants anywhere when the state is the prosecuting party. "A lay person would perceive, as improper, a situation in which the chief law enforcement officer takes a position in direct conflict with law enforcement officers of municipal entities in the county," we said. The imputation requirement kept other partners from such employment, too. In KBA LEO 84-3, we opined that private part-time prosecutors in a law firm could not represent a criminal defendant in other courts in which they have no substantial responsibility without giving an appearance of impropriety. In KBA LEO 88-4, we suggested that a law clerk with ties to a legal...