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Syllabus
It is improper for an attorney who is also a city councilman (a) to appear on behalf of a defendant who is charged with violation of a city ordinance in the municipal court of that city; and (b) to represent a client before administrative departments or agencies of that city. It is also improper for a member or associate of the law firm of which the city councilman is a member to act as an attorney in either of the above situations.
Facts
An attorney in the private practice of law is also a member of the city council. The city council does not appoint municipal judges or administrative department or agency heads, but does appoint the members of the board of adjustment which hears zoning and building appeals. The limits of the salaries of municipal judges are established by city charter but the council has authority to fix the salary within such limits. The council approves the budget of the municipal court and appropriates funds for the operation of that court as well as all city departments and agencies.
Opinion
In Opinion No. 14 this Committee concluded that in a situation where the city council hired the municipal judge and fixed his salary it was improper for an attorney-councilman to practice in the municipal court on behalf of defendants charged with violations of city ordinances. The practice there condemned is equally improper where the council, although not directly appointing the judge, must approve the court's budget and appropriate funds for its operation.
The same conclusion must be reached with respect to the representation of a client by an attorney-councilman before an administrative department or agency of the city. Even though the conduct of both the department and the attorney is scrupulously correct, it is likely that an individual client, or the public, will believe that an attorney-councilman would receive a more favorable reception from a municipal department or agency than would a non-councilman. An attorney who is also a public officer has an obligation to avoid any appearance of possible impropriety resulting from his dual position.
The pertinent rule regarding the appearance before municipal courts, departments or agencies of other members of the firm of which the attorney-councilman is a member has been stated as follows:
The relations of partners in a law firm are such that neither the firm, nor any member or associate thereof, may accept any professional employment which any member of the firm cannot properly accept. (See Opinions 49 and 72 of the Committee on Professional Ethics of the American Bar Association). To the same effect are Opinions 33 and 103 of the same Committee.
The foregoing rule is frequently harsh in its application, particularly where, as here, an entire firm is precluded from a substantial area of private practice because one firm member, often at a financial sacrifice, serves part time in a public or political position. The rule, and the policy considerations upon which it is based, are nevertheless too firmly established to permit of modification at this time.
1996 Addendum
Formal Opinion 18 is withdrawn. For an analysis of these issues, refer to Formal Opinions 14 and 97.
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