State Bar of Montana

Ethics Opinion
881130

QUESTION PRESENTED: Whether a city attorney of a city which has consolidated its law enforcement (which enforces both city and county law) with a county may defend criminal actions in that county which are being prosecuted by the county attorney.

ANSWER: No.

ANALYSIS: In Montana, where city and county law enforcement have been consolidated, the budget of that consolidated agency is paid partially by the city or cities participating in the consolidation and partially by the county involved in the consolidation. Law enforcement officers of such a consolidated law enforcement program may therefore be said to be employed on behalf of the city or cities as well as the county involved in the consolidated unit. These law enforcement officers are also charged with enforcing both city ordinances of the city or cities involved as well as state law. Many of these laws which they enforce such as traffic violations are violations of city ordinances as well as state law.

A city attorney is employed by the same entity that employs the law enforcement officers of a consolidated law enforcement unit. It is the same governmental entity that pays the city attorney's salary and a portion of the salaries of the law enforcement officers. The city is the city attorney's client. A city attorney is charged by Section 7-4-4604, MCA, with enforcing city ordinances when necessary. As a necessary part of his duty of enforcing city ordinances the city attorney is required to confer, advise and work with the consolidated law enforcement unit. The attorney has access to the law enforcement files of that unit which often contain confidential information not found elsewhere. A violation of the law being prosecuted in the justice or district court, such as a traffic violation, may also be a violation of a city ordinance.

In the United States, where the stability of the courts - and for that matter, all the departments of government - rests upon the approval of the populace, it is essential that the system for dispensing justice be so maintained that the public shall have absolute confidence in the integrity and impartiality of its administration. The future of the democracy to a great extent depends upon the maintenance of such a justice system, pure and unsullied. It cannot be so maintained unless the conduct and motives of the members of the legal profession are such, and appear to be such, as to merit the approval of all.

It is a well known fact that prosecutors, whether they be city attorneys, county attorneys or attorney generals, and their staffs are granted courtesies and assistance by law enforcement agencies as well as the prosecuting authorities of cities and counties throughout the state and country. This practice is of great benefit to the administration of justice and is essential to effective law enforcement. Cooperation of this nature would cease if prosecutors from one city or county were allowed to defend criminals in courts or jurisdictions other than their own. Police and sheriffs officers would be reluctant to discuss any law enforcement matters with prosecuting attorneys other than those cases in which they knew specifically that the prosecuting attorney was representing the city, county or state.

Furthermore, for the city attorney charged with public duties including the prosecution of crimes to accept employment in defense of one charged with crimes, would appear to place him in position adverse to his public employer likely to destroy public confidence in him as a public officer and thus bring reproach to his profession, as well as to himself. This apparent conflict of interest should be avoided.

Based upon the foregoing, it is our conclusion that a city attorney, where city and county law enforcement have been consolidated, may not represent criminal defendants in actions brought and prosecuted by the county attorney in the county. This opinion is supported by A.B.A. formal opinions 30, 34, 118, 142, and 186, and by Florida Opinions 57 (Opinion 60-22, January 9, 1961).

THIS OPINION IS ADVISORY ONLY

 

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