Formal Opinion 74
Restrictions Upon the Private Practice of Prosecuting Attorneys
(1960)

[Portions of this opinion indicated by *** have been withdrawn.]

In your letter of January 25,1960, you ask an opinion on the following five propositions:

Is it unethical for a prosecuting attorney of a sixth class county or his deputy to represent the following persons:

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2. A plaintiff in a civil action where the adverse party is represented by a deputy prosecuting attorney for the same county where such deputy maintains a separate office in an adjoining city.

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5. A plaintiff or a defendant in a personal injury action

arising out of the negligent operation of a motor vehicle, or other driving delinquency.

The statute governing prosecuting attorneys provides as follows:

"The prosecuting attorneys of class A counties and counties of the first class and their deputies shall not engage in the private practice of law." RCW 36.27.060.

It would appear that prosecuting attorneys in counties of the sixth class may engage in the private practice of law so long as such practice does not conflict with law or with the Canons of Ethics of the legal profession.

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In answer to your second problem involving the representation of parties in a civil action by the prosecuting attorney on one side and a deputy prosecuting attorney on the other side, it is believed that the place and maintenance of the office of the deputy is not material in consideration of this problem. It has been held that a conflict of interest arises under Canon 6 when parties in a law firm undertake to represent two sides of a contest. The same rule has been applied by the American Bar Committee to lawyers who are associated together in the sharing of offices. ABA Opinions 104, 284A. The prosecutor and his deputy are not partners or associates in the law practice. However, they are closely associated as employees of the county. Their relationship resembles that of a principal and agent. The prosecutor has the power of discharge or to recommend it. To permit a public prosecutor and his deputy to represent both sides of a civil suit could well undermine public confidence in the legal processes. "Lawyers should not conduct themselves in such a way as to impair the confidence which the community has in the administration of justice." ABA Opinion 104. The answer to your Question No. 2 is that such representation violates the very spirit and purpose of Canon 6.

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If a prosecuting attorney investigated an accident case for the purpose of determining whether there should be prosecution for negligent driving of a motor vehicle or other violations of state law, then it would be clear that it would be improper for him to represent any party to the proceeding growing out of such accident. American Bar Opinions 71,77,186,297A. In the above opinion of the American Bar Committee No. 186, it is stated:

"The county attorney should not accept employment where his duties to his private client and his public duties may conflict either directly or indirectly. Furthermore, for the county attorney charged with public duties to accept employment adverse to his public employer puts the county attorney in an unseemly situation likely to destroy public confidence in him as a public officer, and bring reproach to his profession."

It is the primary duty of a prosecuting attorney to enforce the law and in so doing, to prosecute violations thereof. If he were free to represent parties in civil suits for personal injury growing out of the violation of the statutes governing the operation of motor vehicles, then it would be plain to see the conflict that may appear before him in his duties as prosecuting attorney. In one case, it would be to his interest to see that the driver was pressed with criminal charges to the full

extent of the law and convicted if possible. On the other hand, if he were representing the other side, it would be to his advantage to see that no prosecution was brought against the violator of the statute. No prosecuting attorney should be placed in such a position.

It is the opinion of the Committee that there is a conflict of the spirit and purpose of Canon 6 for a prosecuting attorney to represent either side in a personal injury action growing out of an automobile collision resulting from negligence or other violations of the statutes governing the operation of automobiles on the highways.

[See RPC 1.7]