AGO 1953 No. 46 - May 18 1953
CITY ATTORNEY ‑- PARTNERS ‑- DEFENSE OF CLIENT PROSECUTED BY CITY ATTORNEY ‑- APPEARANCE BEFORE CITY COUNCIL ‑- CITIES OF THIRD CLASS.
1. Partner of city attorney in third class city cannot defend person prosecuted by city attorney.
2. Partner of city attorney in third class city may appear before city council, but not if partner and city attorney contend for opposite positions.
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May 18, 1953
Honorable Albert D. Rosellini
Suite 111, Smith Tower
Seattle 4, Washington Cite as: AGO 53-55 No. 46
We have received your request of May 1, 1953, for opinions on the following questions:
1. May a partner in a firm of which the city attorney of a third class city is a member defend clients being prosecuted in police court by the city attorney?
2. May such a partner represent clients before the city council where it is the city attorney's duty to advise the council?
In our opinion the answer to your first question is "No:" the answer to your second question is "Yes," subject to qualification as stated below.
We believe the answer to your first inquiry is to be found in RCW 2.48.200, which provides in part:
"It shall be unlawful for * * * the * * * partner of a prosecuting attorney, * * * to appear for an adverse interest in any proceeding in which a prosecuting attorney is appearing * * * (Italics supplied)
This statute does not mention city attorneys as such, but we believe that the term "prosecuting attorney" should be taken in a general, rather than a specific sense. City attorneys, for purposes of this question, perform the same function as do prosecuting attorneys. They may find themselves (where prosecuting [[Orig. Op. Page 2]] attorneys are allowed to conduct private practice) in the same situations, one of which involves possible adverse interest. The statute is clearly designed to prevent this possibility. In view of this legislative intent, we believe that the statute applies to all who perform the function of prosecuting attorney, and not merely to those who hold that title. We conclude that such partners may not defend persons prosecuted by the city attorney.
As to your second question, the problem under the quoted statute would be whether or not a hearing before the city council constitutes a "proceeding." That term is defined in Black's Law Dictionary (3rd ed.) p. 1430, as
" * * * the form and manner of conductingjuridical business before a court or judicial officer; * * *" (Italics supplied)
See also State v. Nelson, 6 Wn. (2d) 190, 193. We believe that such a hearing would not be a "proceeding," and that the quoted statute does not apply. We have found no prohibition elsewhere in our statutes or decisions against such appearance of partners of a city attorney.
It is possible, however, that the partner and the city attorney may find themselves supporting conflicting positions in such a situation. Occasionally this is to be anticipated. The quoted statute indicates that the partnership relation may raise the question of adverse interest or influence. In any such case, the partner would be well advised first to consult Rule 6 of the Code of Professional Ethics, 34A Wn. (2d) 127, relating to adverse interests, bearing in mind the provision of RCW 2.48.220 (11). If doubt remains, the question should be submitted to the Committee on Ethics of the State Bar Association.
Very truly yours,
A. J. HUTTON, JR.
Assistant Attorney General