Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGLO 1971 No. 64 -
Attorney General Slade Gorton

- - - - - - - - - - - - -
                                                                   April 20, 1971
Honorable Robert K. Leick
Prosecuting Attorney
Skamania County Court House
Stevenson, Washington 98648                                                                  Cite as:  AGLO 1971 No. 64 (not official)
Dear Sir:
            This is written in partial response to your letters of March 30 and April 1, 1971, requesting our opinion on a number of questions relating to the duties and functions of the prosecuting attorney in a 7th class county.  You have subsequently indicated a desire to have us answer immediately those questions which we believe can be readily answered on the basis of previous office opinions, decided cases, etc., and then to have us take under consideration the remaining questions which cannot thus be readily answered.  With this in mind, we paraphrase, and respond at this time, to each of your several questions as follows:
            (1) May the same person simultaneously serve as the prosecuting attorney of a 7th class county and as a city or town attorney for some city or town located within such county?
            Previous opinions of this office have "gone both ways" on this question, and therefore we believe it necessary to take this inquiry under further consideration.
            (2) In a county the prosecuting attorney of which is entitled to engage in the private practice of law as provided for in RCW 36.27.060, may such prosecuting attorney be retained or otherwise compensated to serve as the employed attorney of either a public utility district or a port district?
            The issue raised by this question differs from that raised by question (1) in that the position of attorney for a port district or public utility district does not constitute a statutory public office in the same manner as  [[Orig. Op. Page 2]] does the position of city or town attorney.  Accordingly, the common-law doctrine of incompatible public offices which must be considered in resolving the question of "prosecuting attorney ‑ city or town attorney" is not applicable in the case of those situations referred to in your second question.  By opinion dated January 31, 1938, to the prosecuting attorney of Snohomish county, this office, relying upon Bates v. School District No. 10, 45 Wash. 498, 88 Pac. 944 (1907), concluded that:
            ". . . the prosecuting attorney may represent taxing districts in the county to which he owes no duty by virtue of his office.  But this employment must be as a private attorney and the interest of the county or of the school districts must not be in conflict with the interest of the other taxing districts."
            In so far as this previous opinion in effect sanctions the simultaneous service of the same individual as the prosecuting attorney of the county in which the prosecutor is entitled to engage in private practice and as the employed attorney for a taxing district other than the county itself, or one of the school districts located therein (see further discussion of this below), we adhere to this conclusion.  We would, however, point out the language of Canon 6, Canons of Professional Ethics, which provides, in part, that:
            "It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts.  Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."
            See, also, letter dated January 11, 1962, to Grant J. Saulie, copy enclosed, in which the applicability of this Canon was discussed within the context of a question pertaining to the simultaneous service of the same individual as city attorney for two or more separate cities or towns.
            (3) May the prosecuting attorney of a county also serve as the director of that county's public works department?
            RCW 36.27.020, in specifying the duties of a  [[Orig. Op. Page 3]] prosecuting attorney, states that the prosecuting attorney shall:
            ". . .
            "(2) Be legal adviser to all county and precinct officers and school directors in all matters relating to their official business, . . ."
            Based upon this statute, we have previously concluded that the same person may not simultaneously serve as a county prosecuting attorney or deputy prosecutor and as a member of a school board of a school district located in the same county.  See, opinion dated April 30, 1968, to the prosecuting attorney of King county, copy enclosed; also, opinion dated April 1, 1921, to the state superintendent of public instruction, copy enclosed.  The reasoning of these previous attorney general opinions is clearly applicable, as well, to the situation of a county prosecuting attorney simultaneously serving as the holder of some other county office.  Accordingly, we answer question (3), supra, in the negative.
            (4) May the same individual simultaneously serve as the employed attorney for a port district and as the manager of such district?
            To the extent that one of the functions which the commissioners of the particular port district have called upon their attorney to perform is that of providing legal advice and counsel to the manager of the district, the reasoning underlying our answer to question (3), supra, would be equally applicable; however, we can conceive of it being possible, in a given case, that the resolution or contract under which a given port district attorney may have been employed does not contemplate him giving legal advice or counsel to any of the officers of the district other than the port commissioners themselves.  If this limitation upon the functions of the port district attorney is properly spelled out in his contract and/or within the confines of the resolution under which he was employed, then it is possible that the "attorney-client" relationship giving rise to our negative answer to your third question, could be avoided.  Thus, if you desire to have us pursue this question further, it will be necessary that you provide us with a copy of the particular employment contract or resolution  [[Orig. Op. Page 4]] of the port district in question under which the duties and functions of its attorney are set forth.
            (5) Which of the political subdivisions within a county (i.e., county planning commission, county fair board, county parks and recreation board, county school districts, mosquito control districts, etc.) must the prosecuting attorney represent, and if he is required to represent all or any of these agencies, does the representation include appearances in court?  If the prosecutor is not required to represent all or any of these agencies, can he represent all or any of said agencies on a private basis?
            Under RCW 36.27.020, supra, the prosecuting attorney is required to advise and represent all county departments and officers, and all school districts located within his county.  In so far as his compensation for the performance of these functions is concerned, we are enclosing herewith a copy of our opinion dated October 14, 1968, to the Thurston county prosecuting attorney, dealing with the possibility of a prosecutor's receipt of additional compensation for representing a school district located within his county.  Based upon the reasoning of this opinion, we would conclude that the prosecuting attorney is required to represent all school districts located within his county, as well as all county agencies (including the county planning commission, county fair board and county parks and recreation board) in exchange for the salary which is applicable to prosecuting attorneys in the particular class of county involved.  On the other hand, in the case of those independent taxing districts (i.e., all except school districts) which the prosecuting attorney is not required to represent, we have heretofore concluded that in so far as representation of such districts constitutes a mere employment and not the holding of a possibly incompatible public office, there is no legal prohibition against a part time county prosecuting attorney serving, at the same time, as the employed attorney of one or more such independent taxing districts.  See, however, again ‑ the applicable language of Canon 6 of the Canons of Professional Ethics, as set forth above.
            (6) If the prosecuting attorney of a county should resign, thereby creating a vacancy, and no qualified attorney residing within the county is willing to accept an appointment to fill the vacancy as provided for in Article II, § 15 of the state constitution, may the judge of the superior  [[Orig. Op. Page 5]] court and/or county commissioners of the county appoint some attorney who is a resident of the county to serve as "acting prosecuting attorney" at a rate of compensation higher than the salary specified by statute for the prosecutor of the class of county in question?  If so, may the particular individual whose resignation as prosecuting attorney created the vacancy be thus appointed to serve as "acting prosecuting attorney" of the county at this higher rate of compensation?
            The governing statute here is RCW 36.27.030, which reads, in material part, as follows:
            ". . . Provided, That in counties wherein there is no person qualified for the position of prosecuting attorney, or wherein no qualified person will consent to perform the duties of that office, the judge of the superior court shall appoint some suitable person, a duly admitted and practicing attorney at law and resident of the state to perform the duties of prosecuting attorney for such county, and he shall receive such reasonable compensation for his services as shall be fixed and ordered by the court, to be paid by the county for which the services are performed."
            The issues raised by your questions pertaining to this statute are such, we believe, as to necessitate further studied consideration before expressing our official opinion thereon.  Therefore, along with question (1), supra, we shall take these questions under further advisement at this time, and will inform you when our conclusions have been reached.
            (7) What portion of a total work week is a part time prosecuting attorney required to maintain his public office, and during what hours?
            We have heretofore referred to RCW 36.27.060, relating to part time versus full time prosecuting attorneys, which reads, in material part, as follows:
            "The prosecuting attorneys and their deputies of class three counties and counties with population larger than class three counties shall serve full time and shall not engage in the private practice of law:  . . ."
             [[Orig. Op. Page 6]]
            There is no statute specifying the amount of time which a part time prosecuting attorney is required to devote to the duties of his office; however, presumably, he is expected to devote such time to those duties as is necessary for their performance, either by himself or by his deputies.
            As far as office hours are concerned, the governing statute is RCW 36.16.100, which provides that:
            "All county and precinct offices shall be kept open for the transaction of business during such days and hours as the board of county commissioners shall by resolution prescribe."
            It is hoped that the foregoing immediate responses to all but two of your several questions relating to the duties and functions of a county prosecuting attorney will be of some assistance to you at this time.  We shall advise you as to our thinking with regard to your two remaining questions as soon as our conclusions thereon have been reached.
Very truly yours,
Philip H. Austin
Deputy Attorney General