Formal Opinion 81
Prosecuting Attorney Maintaining Suit to Invalidate Bonds of School District
(1960)

Your letter of May 4, 1960 has been referred to this Committee. It would appear that the prosecuting attorney of your county has brought an action against the school district to restrain the selling of bonds which have been previously authorized by a vote of the people, the proceed from said bonds to be used for school construction. You present the question whether it is proper for the prosecuting attorney of the county to bring an action against the school district to enjoin the sale of the bonds.

The statutes of the State of Washington provide that the prosecuting attorney shall be "legal advisor to all county and precinct officers and school directors in all matters relating to their official business, and when required shall draw up all instruments of an official nature for the use of said officers"; and shall "appear for and represent the state, county, and all school districts subject to the supervisory control and direction of the attorney general in all criminal and civil proceedings in which the State or his county or any school district in his county may be a party." R.C.W. 38.27.020.

It is therefore the duty of a prosecuting attorney of a county to represent the school districts, within his county. In such capacity it is his duty to advise the directors of the district in all matters pertaining to the bond issue and to the validation of the bonds.

The exact question was before the Committee of the American Bar Association, in Opinion 71. In that opinion it appears that the personnel of the municipal governing body had changed after the bonds were authorized and the question was whether the attorney could attack the bonds even upon the request and direction of the new governing body. The committee, in its opinion stated:

"It would be improper for the attorney to attack the validity of the bonds, even though instructed to do so by the city commission by which he is employed. Having devoted himself and his professional efforts to the preparation and validation of the bonds, the attorney cannot, with propriety, thereafter attempt to have them declared invalid. And he should decline to join in any movement which has for its purpose an attack upon their validity (ABA Opinion 64). The fact that the personnel of the city commission has changed and that he is now urged to join in such an attack by the successors of those who employed him to prepare and validate the bonds, should not influence him to act in a manner inconsistent with his obligation to refrain from attempting to nullify his own work. The change in personnel of the city commission does not release him from his professional obligations.

"Neither would it be proper for him to represent a taxpayer in a case which would require him to urge invalidity of these bonds or which, if successfully concluded, would or might injuriously affect the rights of the municipality or of the holders of the bonds in respect to the subject matter of his previous professional efforts in the municipality’s behalf. The fact that he continues in the professional employment of the municipality, if it affects the situation at all, can only require him to be more careful to avoid any appearance of inconsistency." (ABA Opinions 37 and 39).

In the case here presented, the prosecuting attorney is attorney for the school district, and he is made so by the statutes of the State of Washington. It is therefore entirely inconsistent for him to represent taxpayers or others in an action or proceeding against the school district for the purpose of invalidating or enjoining the sale of the bonds. Such conduct on the part of the prosecuting attorney is not only in violation of Canon 6 of the Canons of Professional Ethics but is contrary to and violates the spirit of Canon 36.

[See RPC 1.7(a) and (b), 1.8]