Formal Advisory Opinion No. 05-12
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FORMAL ADVISORY OPINION NO. 05-12
Approved And Issued On July 25, 2006 Pursuant To Bar Rule 4-403
By Order Of The Supreme Court Of Georgia Thereby Replacing FAO No. 00-1
Supreme Court Docket No. S06U1489
When the City Council controls the salary and benefits of the members of the Police Department, may a councilperson, who is an attorney, represent criminal defendants in matters where the police exercise discretion in determining the charges?
Representation of a criminal defendant in municipal court by a member of the City Council where the City Council controls salary and benefits for the police implicates Rule 3.5(a), which prohibits attorneys from seeking to influence officials by means prohibited by law. In any circumstance where the representation may create an appearance of impropriety it should be avoided.
This opinion addresses itself to a situation where the City Council member votes on salary and benefits for the police. Particularly in small municipalities, this situation could give rise to a perception that a police officer's judgment might be affected. For example, a police officer might be reluctant to oppose a request that he recommend lesser charges or the dismissal of charges when the request comes from a council member representing the accused. Situations like the one at hand give rise to inherent influence which is present even if the attorney who is also a City Council member attempts to avoid using that position to influence the proceedings.
Rule 3.5 provides that "A lawyer shall not, without regard to whether the lawyer represents a client in the matter: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law...." As a general matter, a police officer is a public official. See White v. Fireman's Fund Ins. Co., 233 Ga. 919 (1975); Sauls v. State, 220 Ga. App. 115 (1996). But see O.C.G.A. §45-5-6. Where a police officer exercises discretion as to the prosecution of criminal charges, the police officer is a public official within the meaning of Rule 3.5(a). By its express terms, Rule 3.5(a) applies only when an attorney seeks to influence, that is where an attorney has the intent to influence, an official by means prohibited by law. If an attorney were to indicate to an officer that as a result of the attorney's position as a member of the City Council a favorable recommendation as to one of the attorney's clients would result in benefits flowing to the officer, or that an unfavorable recommendation would result in harm, the attorney would have committed the offense of bribery, OCGA §16-10-2 (a)(1), or extortion, OCGA §16-8-16(a)(4). The attorney would also have violated Rule 3.5(a).
The mere fact of representation of a criminal defendant by an attorney who is a member of the City Council, when the City Council controls the salary and benefits of the members of the Police Department, and when the police exercise discretion in determining the charges does not, by itself, establish a violation of Rule 3.5(a). To establish a violation, there must be a showing that the attorney sought to exercise influence in a manner prohibited by law. We note, however, that Comment 2 to Rule 3.5 provides that "The activity proscribed by this Rule should be observed by the advocate in such a careful manner that there be no appearance of impropriety." Pursuant to Rule 3.5, therefore, an attorney should not represent a criminal defendant where an inference of improper influence can reasonably be drawn.
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