AGO 1953 No. 467 - Jan 22 1953
LEGALITY OF PROSECUTOR ACTING AS RECEIVER IN CERTAIN CASES.
A prosecuting attorney may not act as receiver in cases where the county sheriff is a party defendant.
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January 22, 1953
Honorable Richard A. Perry
Republic, Washington Cite as: AGO 51-53 No. 467
Receipt is acknowledged of your letter of January 8, 1953, in which you ask the following questions:
1. Does the prosecuting attorney's duty to be legal counsel for the sheriff continue after the sheriff has given up his office, but the matter in which he is a defendant came up during his term of office while he was carrying out his duty as sheriff?
2. If a prosecuting attorney did accept the position as receiver and should be forced by his trust to name the sheriff as a party defendant in a suit brought by him would your office furnish the sheriff legal counsel for the reason that the prosecuting attorney would be unable to act as counsel for the sheriff?
Our conclusions may be stated as follows:
The answer to your first question is "yes."
The answer to your second question is "no."
The duties of the prosecuting attorney are defined and set out in RCW 36.27.020. Subsection 4 of said section in particular reads:
[[Orig. Op. Page 2]]
"Prosecute all criminal and civil actions in which the state or his county may be a party, defend all suits brought against the state or his county, and prosecute actions upon forfeited recognizances and bonds and actions for the recovery of debts, fines, penalties, and forfeitures accruing to the state or county;"
We construe this to mean that the prosecuting attorney must defend all county officers when sued in the capacity as such county officers. To permit the prosecuting attorney to act as a receiver in such circumstances as outlined in your letter would be permitting him to sue and defend the county officer involved in the same action. Such a procedure would certainly be against public policy and would do much to tear down the respect for the office of prosecuting attorney and our courts.
The duties of the attorney general are set out and defined by RCW 43.10.030 and, if called upon to do so by the prosecuting attorney in criminal matters, the office would in ordinary circumstances help out. But the situation out lined in your letter is not an ordinary one. The procedure suggested would require the attorney general to defend a county officer that the prosecutor is suing in a civil suit connected solely with private litigation and not in any way concerned with county business. It would seem that as held in the case of Callahan v. Jones, 200 Wash. 241, the prosecuting attorney is prohibited from representing private litigants where he owes a duty to the county, in your case the duty being to defend the sheriff who is a county officer.
Very truly yours,
Assistant Attorney General