Formal Opinion 161
(1975)
Government Attorneys in Private Practice

City attorneys, their partners or associates may represent defendants or juveniles in actions that are not brought nor initiated by the City and the facts of which are not investigated by representatives of the City employing the City Attorney.

It has come to the attention of the Committee on the Code of Professional Responsibility of the Washington State Bar Association that there is confusion throughout the State Bar with respect to the propriety of city attorneys, assistant city attorneys or of their partners or associates or those officing with the city attorney, being employed to defend persons charged by the employer/city or other levels of government with violations of the law. In this opinion "city" refers to both cities, towns and optional municipal code cities.

On January 1, 1972, the Code of Professional Responsibility of the Washington State Bar Association became effective. Canon 9 thereof provides that "A lawyer should avoid even the appearance of professional impropriety." Disciplinary Rule 9-101 entitled, "Avoiding Even the Appearance of Impropriety," (Subsection B) provides that:

"A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."

A lawyer should promote public confidence in our judicial system and in the legal profession to the end that there be no misunderstanding that could cause the public to lose faith in the concept that justice can be obtained through our legal system.

The Preamble of the Washington State Bar Association’s Code of Professional Responsibility states as follows:

"... in the last analysis it is the desire for the respect and confidence of the members of his profession and the society which he serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction."

It is the appearance of professional impropriety that may arise which produces the part-time city attorney’s ethical dilemma. It goes without saying that the application of the Canons and the Disciplinary Rules and Ethical Considerations of the Code of Professional Responsibility requires an exercise of judgment which should always be based on careful analysis and considered advice. It has been suggested that a good rule of thumb is "When in doubt, don’t."

A main consideration of the Committee in reaching its opinion has been the well-recognized necessity of small municipalities having the opportunity to maintain adequate legal counsel to handle their legal problems while at the same time not unduly hampering the general practice activities of the city attorney or assistant city attorney in the general conduct of the affairs of their private clients. The situation as it appears to the Committee is that in the great majority of the smaller municipalities of the state, the practice is to hire an attorney on a part-time basis because the amount of legal services required is small and, ordinarily, such municipalities cannot afford a full-time attorney.

It is the opinion of the CPR Committee that a city attorney, assistant city attorney, their partners or associates, or those officing with the city attorney may ordinarily represent an individual accused of a violation of law, provided, however, that such representation of a defendant or juvenile is not brought or initiated by the city and the facts of which were not investigated by representatives of the city employing the city attorney.