Formal Advisory Opinion No. 86-3
Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 86-3
State Bar of Georgia
Issued by the Supreme Court of Georgia
On December 17, 1987
Formal Advisory Opinion No. 86-3
For references to Standard of Conduct 35, please see Rule 1.7(a).
For references to Standard of Conduct 36, please see Rules 1.7(a), and 2.2(a).
For references to Standard of Conduct 38, please see Rule 1.10(a).
For an explanation regarding the addition of headnotes to the opinion, click here.
Ethical Propriety of County Attorneys Representing Criminal Defendants.
There is no basis for a per se ethical disqualification of county attorneys from the representation of criminal defendants, unless the defendant is charged with a violation of a county ordinance. Any conflict of interest raised by a county attorney's representation of clients other than the county should be analyzed in the same fashion as any other conflict arising from the representation of differing or potentially differing interests. County attorneys must be especially sensitive to the possibility of conflict created by their role, if any, as prosecutor.
Correspondent requests guidance as to whether county attorneys or their partners or associates may represent criminal defendants.
The primary issue is potential conflict of interest. The position of county attorney obviously creates a lawyer-client relationship between the attorney and the county governmental unit. The county attorney is not called upon by election or oath of office to enforce the laws of the State. The county attorney is, however, authorized to prosecute violations of county ordinances on behalf of the county. When he or she is acting in such a capacity the duty to the county is similar to that of a solicitor to the state. Based on the reasoning of Proposed Formal Advisory Opinion No. 86-2, it would be ethically improper for a county attorney to represent a criminal defendant charged with a violation of a county ordinance.
More generally, the county attorney's obligation is zealous representation of the best interests of his or her client. Any conflict of interest created by a county attorney's representation of clients other than the county should be analyzed like any other conflict arising from the representation of differing or potentially differing interests. There is, therefore, no basis for a per se ethical disqualification of a county attorney or partners or associates from the representation of criminal defendants. In those specific situations in which such representation would violate Standards No. 35 or 36, the representation is obviously prohibited. When representation is prohibited by Standard No. 35 or Standard No. 36, Standard No. 38, as amended, would impute the disqualification of the attorney to all members of the firm.
While no per se disqualification bars county attorneys unless the defendant is charged with a violation of a county ordinance, a given county attorney may nevertheless be ethically disqualified from the representation of criminal defendants in the county. Legal representation of county prosecution or law enforcement agencies may affect adversely the attorney's independent professional judgment. All county attorneys need to be sensitive to the possibility of such potential conflict.
This advisory opinion is necessarily limited to the ethical propriety of the conduct in question. We offer no opinion on either the constitutional issues of ineffective assistance of counsel or statutory issues of disqualification.
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