Opinion 2173

I. Facts

The Inquirer’s law firm holds the contract to act as city attorney for the city of X. The law firm performs the same functions as an in-house city attorney including acting as the prosecuting authority in criminal cases. Recently, a dispute arose over the removal and destruction of campaign signs. The campaign manager for the aggrieved candidate filed a complaint with police. After reviewing the evidence, the Inquirer determined that there was insufficient evidence to warrant the filing of criminal charges.
After learning that the Inquirer did not intend to pursue criminal charges, the campaign manager alleged that the Inquirer had a conflict of interest because some members of the city council have endorsed the opponent of the aggrieved candidate. The campaign manager asserts that because the Inquirer works closely with the city council, he cannot be object in making a filing decision.

II. Questions Presented

1. Who is the Inquirer’s client?

2. Does a City Attorney have a conflict of interest in making a criminal charging decision where the subject of potential charges has a close personal relationship with some city council members?

3. Does a City Attorney have a conflict of interest in making a criminal charging decision where the subject of potential charges is affiliated with the campaign of a candidate endorsed by some council members?

4. Would it make a difference if all elected officials (mayor and entire city council) endorsed one of the candidates?

5. Does the form of government (“strong mayor” vs. “council/manager”) make a difference?

6. Does the fact that the Inquirer is a contract attorney make any difference?

III. Discussion

RPC 1.13 provides that a lawyer employed by an organization represents the organization rather than its constituent members. This rule applies to government organizations. Comment [9], RPC 1.13. Pursuant to RPC 1.13(g), a lawyer representing an organizational client may also represent constituent members of the organization. Based upon the facts presented by the Inquirer, however, it does not appear that such dual representation is at issue here. Accordingly, as city attorney, the Inquirer represents the city rather than the mayor, the city council, or individual council members.

The Inquirer’s questions regarding whether a conflict of interest exists are addressed by RPC 1.7. RPC 1.7(a)(2) provides that a conflict exists if:

There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

In the various scenarios described by the Inquirer, there is no inherent conflict of interest in the Inquirer making a criminal charging decision, but there is great potential for a conflict to arise. The Committee is not in a position to evaluate the personal interest of the Inquirer nor can the Committee gage what responsibilities the Inquirer may have to third persons. Accordingly, the Committee cannot opine as to whether an actual conflict exists. If the Inquirer determines that a conflict does exist, then he must either withdraw or comply with the requirements of 1.7(b).
The form of city government is relevant to the conflict determination only insofar as it relates to the personal interest of the Inquirer. If, for example, the subject of the criminal investigation has a close relationship with the person or persons who hold the power to hire and/or fire the Inquirer, there is a greater risk that the Inquirer’s objectivity in making a charging decision will be compromised.
The fact that the Inquirer represents the City pursuant to contract rather than as a direct employee of the City does not alter the above analysis.