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Advisory Opinion 16

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State Disciplinary Board
Advisory Opinion No. 16
September 21, 1973

Propriety of An Attorney Who is a County Commissioner in a Rural County Appointing His Own Firm as County Attorney.

Pursuant to the provisions of Rule 4-217 of the Rules and Regulations for Organization and Government of the State Bar of Georgia, this State Disciplinary Board, upon request made therefore, renders this its opinion concerning a proper interpretation of the Code of Professional Responsibility of the State of Georgia as applied to a given state of facts.

An advisory opinion has been requested upon the following inquiry:

A partner in a three-member law firm has been elected Commissioner in a small county. The new Commissioner, who at times in the past has served as County Attorney and who intends to remain active in the law firm, wishes to appoint his law firm as County Attorneys. May he do so consistent with the applicable ethical rules? Would the result be different if the Commissioner's partner were appointed County Attorney in his individual capacity and all legal fees paid by the County were paid directly to this partner rather than into the law firm's general account? There is only one other active law firm in the County; and its members were closely associated politically with the candidate who was defeated in the last election by the present Commissioner.

The ethical rules presently applicable to this inquiry are Rule 3-108 (Canon 8): EC 8-8, and Rule 3-109 (Canon 9): EC 9-1 and EC 9-2.

Canon 8 provides "A Lawyer Should Assist in Improving the Legal System." The ethical considerations under this Canon relevant to the question presented are:

EC 8-8 Lawyers often serve as legislators or as holders of other public offices. This is highly desirable, as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties.

DR 8-101(A)(1) states as follows:

(A) A lawyer who holds public office shall not:

(1) use his public position to obtain, or attempt to obtain, a special advantage in legislative matters for himself or for a client under circumstances where he knows or it is obvious that such action is not in the public interest;

Canon 9 provides "A Lawyer Should Avoid Even the Appearance of Professional Impropriety". The relevant ethical considerations under this Canon are:

EC 9-1 Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our system and in the legal profession.

EC 9-2 Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform his client of material developments in the matters being handled for the client. While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, his duty to clients or to the public should never be subordinate merely because the full discharge of his obligations may be understood or may tend to subject him or the legal profession to criticism. When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.

There are numerous Formal and Informal Opinions of the American Bar Association on the subject of the attorney as public official, but these opinions seem to be largely useless to the present inquiry as they consistently address themselves to factual situations in which the duty of the attorney as government official comes into conflict with his duty as counselor or advocate for his non-governmental client. The question here presented is much more subtle than the conflict-of-interest cases and the authorities provide little guidance.

Putting the first inquiry in its simplest form, the State Disciplinary Board must answer the question:

Would the proposed employment of the Commissioner's law firm present such a danger of public suspicion of self-dealing that public confidence in attorneys, and in our legal governmental system, would be unnecessarily eroded?

It is obvious that public confidence in the institution of local government would be damaged if the public came to view local politics as merely a battle between law firms for "the largest client in the County". Strong support for this view is found in American Bar Association Formal Opinion No. 192 which states:

Many opinions have been written by this committee applying each of these Canons. Opinions 16, 30, 34, 77, 118 and 134 relate to Canon 6, and pass on questions concerning the propriety of the conduct of an attorney who is a public officer, in representing private interests adverse to those of the public body which he represents. The principle applied in these opinions is that an attorney holding public office should avoid all conduct which might lead the layman to conclude that the attorney is utilizing his public position to further his professional success or personal interests." (emphasis ours)

This language has been carried into EC 8-8 of the present Code of Professional Responsibility, which ethical rule was cited above. The mere fact that there is an opportunity for a County Commissioner to allow his firm to charge excessively or to create legal business for himself and for his law firm acting as County Attorney,does not, of course, imply that such impropriety would necessarily follow. However, it is vitally important that no situation be allowed to exist which might tempt the public to conclude that the County's interest has been subordinated to that of any law firm or attorney. It has long been the law in Georgia that one who is entrusted with the business of others will not be allowed to make out of the same a pecuniary profit to himself however honest and fair the circumstances of employment, and that the citizens of Georgia are entitled to have their officials exercise close and totally objective scrutiny of the performance of those doing the work of government. Montgomery v. City of Atlanta162 Ga. 534 (1926); Mayor of Macon v. Huff, 60 Ga. 221 (1878); Trainer v. City of Covington, 183 Ga. 759 (1937): Opinions of the Attorney General (unofficial), 1971,p. 286. Numerous statutes which regulate the actions of officers and employees of government have as their goal the prevention of any situation in which the official's personal interest and his public duty may conflict. Ga. Code Annotated § § 2-5606,23-1713, 23-1714, 26-2306, 26-2307, 23-2308, 69-201, 89-103, 89-904, and 89-913 to 918.The statutes and cases cited are grounded in strong public policy which provides a dependable guide in the premises. In light of the public policy favoring avoidance of any actual or imagined conflict-of-interest situation by government officials, we conclude that the only effective way to avoid the possibility of public suspicion of self-dealing and conflicts of interest is for the County Commissioner-attorney to refrain from employing himself as County Attorney. A.B.A. Formal Opinions 33, 49, 50, 72, 103 and 128indicate that no partner or associate of a law firm may undertake any professional relationship which any one of the partners or associates, because of adverse influence and conflicting interests, could not undertake. Consequently, employment of the Commissioner's own firm as County Attorney would be inappropriate. The A.B.A. Formal Opinions cited of knowledge and financial resources and the personal and professional closeness which exists in the legal partnership. It must be remembered, too, that public opinion and appearance of propriety are important considerations in this area, and it is highly probable that employment of the attorney-commissioner's own firm would have the same basic deleterious impact on public opinion and public confidence as would his individual employment as County Attorney. Therefore, the State Disciplinary Board holds that the Attorney-Commissioner may not employ himself or his law firm as County Attorney.

The second part of the question before the Board has to do with the propriety of the hiring of the Commissioner-Attorney's partner as County Attorney on an individual basis. Again, the public policy considerations discussed in Montgomery,Trainer, and Mayor of Macon provide guidance. The two evils arising from an official's self-employment outlined in these cases are:

(1) the temptation to be dishonest in the collection of monies from the government,
(2) the inability of the official to honestly, objectively, and forcefully exercise control over himself, if a way could be found to avoid these dual evils, then the County Commission or the attorney-commissioner might freely employ the attorney-commissioner's partner on an individual basis. Employment of the partner in his individual capacity and use of contract terms stipulating that the attorney-commissioner shall not benefit in any way from the County Attorney's income would destroy objections based on the first evil, but would not avoid those based on the second.It is true that the Commission and attorney-commissioner will always employ a friend and that, consequently, they and he would always be less than totally objective in judging the work of the County Attorney, but it is also true that an attorney-commissioner who would be the Commissioner best qualified to judge the quality of legal work, would be less likely to expose and criticize poor work on the part of one who is his law partner than one who was merely a good friend.

The temptation to overlook or conceal the faults of professional or business partner is one with which no attorney or other person charged with public duty should be faced. The Board, in answering the second part of the inquiry,seeks to avoid the possibility of such temptation and answers part two of the inquiry in the negative.

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