Formal Opinion 149.
(1971)
Lawyer Serving as Prosecuting Attorney and City Councilman Simultaneously

The question has been presented to the Legal Ethics Committee as to whether a lawyer is in violation of ethics by serving as prosecuting attorney and as a city councilman simultaneously. It is the opinion of the committee that such dual public service does not violate the Canons of Professional Ethics.

While it is true that the Canons of Professional Ethics, particularly No. 6, prohibit a lawyer from accepting other employment which would interfere with the high degree of fidelity and confidence the lawyer owes his client, in this case the public, it does not follow necessarily that the lawyer employed by a governmental subdivision is precluded from other employment simply because a conflict of interests could possibly arise.

Involved in an opinion of this nature is of course the philosophical issue of how strict should the canons be interpreted in conflict of interest situations. Should a lawyer be precluded from another activity because of the possibility that a conflict could arise, or because a conflict appears probable. In most instances of ethical interpretation, lawyers have been precluded only where the other activity creates a likelihood of conflict or would appear so in the eyes of the public. This Committee is of the opinion that a conflict of interests between the positions of prosecuting attorney and city councilman is not of sufficient likelihood that the lawyer can be said to be in violation of his ethics. Nor do we believe that the public’s impression of a lawyer in such activities would be such as to bring disrepute to the profession as a whole.

This is not to say that the prosecuting attorney may freely represent the county in actual disputes or controversies involving the particular city of which he is a council member. He is bound, as any other attorney, to respect the confidences of his county client and to render the same degree of fidelity as any other attorney owes his client.

However, as indicated above and subject to the problem of whether the two public offices are "incompatible," it is the conclusion of this Committee that it is not unethical for a lawyer to serve as prosecuting attorney and city councilman simultaneously.