Opinion 2168

A. ISSUE: Whether an elected county commissioner may serve as an attorney in a criminal matter before an appointed municipal court judge who is also the elected district court judge for the county?

B. BRIEF ANSWER: Yes, there are no RPCs that prohibit an attorney who is also a public official from representing clients in criminal matters in another jurisdiction.

C. STATEMENT OF THE FACTS: The inquiring attorney (“Inquirer”) is a current elected county commissioner in X County. The county commissioner position is part-time, and the Inquirer plans to practice law part-time. Prior to assuming the part-time commissioner position, the Inquirer was a senior criminal deputy prosecuting attorney for X County.
In connection with the Inquirer’s private practice, the Inquirer has appeared in a criminal matter in Y Municipal Court on behalf of a criminal defendant. The Y Municipal Court operates in the same space (e.g., courtroom, clerk’s office) as the X County District Court. The City of Y reimburses X County for a pro-rated portion of the space it occupies and pays the county an agreed upon amount for its use of office supplies, equipment, and the court clerks, who are county employees. The reimbursement formula is based on a comparison of the caseloads of the two courts and is subject to periodic review by the city and the county commissioners.
The judge is an elected part-time judge in X County District Court and also the appointed part-time judge for the Y Municipal Court. The judge is paid separately for these two positions.
In the role of county commissioner, the Inquirer will review and participate annually in the approval of the budget of the X County District Court.

D. ANALYSIS: The Inquirer is representing criminal defendant clients in a jurisdiction (City of Y) that is different than the jurisdiction (X County) in which the Inquirer is a commissioner. Further, the Inquirer has not disclosed any connection to the City of Y as an official of or attorney for the city.

RPC 1.11 provides for special conflicts of interests for former and current government officers and employees. Only RPC 1.11(d) is relevant to a lawyer currently serving as a public officer or employee and provides as follows:

“Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).”

Here, since the Inquirer is not an official of the City of Y, Rule 1.11 is inapplicable. Further, absent specific facts concerning existing conflicts of interests of the Inquirer’s criminal defendant clients with X County or other of the Inquirer’s clients, Rules 1.7 and 1.9 are not applicable. Nevertheless, the Inquirer must still comply with Rules 1.7 and 1.9, as such rules are generally applicable.

See also WSBA Informal Ethics Opinion Nos. 2054 and 1766.