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AGO 1954 No. 364 - December 16, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington

COUNTIES ‑- PROSECUTING ATTORNEYS ‑- GUARDIANSHIP PROCEEDINGS PRIVATE PRACTICE

A prosecuting attorney in a county other than class A may not accept employment in guardianship proceedings where notice of hearing would otherwise be issued requiring him to appear in his official capacity.

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                                                               December 16, 1954

Honorable Jay Roy Jones
Prosecuting Attorney-elect
Pend Oreille County
Knuth Building
Newport, Washington                                                                                                              Cite as:  AGO 53-55 No. 364


Dear Sir:

            In your letter to this office dated December 1, 1954, you requested our opinion regarding the following question:

            "Whether the net effect of RCW 11.88.030 and RCW 11.88.070 is to preclude prosecuting attorneys of counties other than class A or the first class, from accepting employment inany guardianship proceeding, or merely in proceedings when notice of hearing is required."

            It is the opinion of this office that a prosecuting attorney of a county other than class A may not accept employment in guardianship proceedings where notice of hearing would otherwise be issued requiring him to appear in his official capacity.

                                                                     ANALYSIS

            RCW 11.88.070 indicates that in any case where notice is required, a copy  [[Orig. Op. Page 2]] thereof together with a copy of the petition shall be served upon the prosecuting attorney and he must appear on behalf of the minor, insane or incompetent person, except where such person is already represented by an attorney.

            Mayor v. Rice, 113 Wash. 144, said in part on page 149:

            "* * * It may be here proper to remark that notice to the prosecuting attorney of an application for the appointment of a guardian should not be regarded by the courts as an idle ceremony.  That officer's duties are of a public nature.  He views the proceedings from a disinterested standpoint and will scrutinize with more care the facts upon which the application is based than will the applicants for the appointment.  * * *"

            It is evident from the statement cited above that a prosecuting attorney could not act in a private capacity for one of the parties in a guardianship case where notice is required under statute that he should appear for the minor, insane or incompetent person in his official capacity.  This office has so held in at least two previous opinions.  It is also evident, however, that in situations where no notice to the prosecuting attorney is required, there would be no conflict between his official and private business if the prosecuting attorney represented the petitioner in private practice.  However, in no event could the prosecuting attorney privately represent the minor, insane or incompetent person where notice would otherwise be issued requiring him to appear in his official capacity.

Very truly yours,

DON EASTVOLD
Attorney General


EDWARD M. LANE
Assistant Attorney General

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