Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1952 No. 233 -
Attorney General Smith Troy


The prosecuting attorney of a county where he is permitted by law to engage in the private practice of law may represent a private client in a condemnation action brought by the Department of Highways involving a state highway, or appear for the plaintiff in an action for damages against the Highway Department.

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                                                                 January 30, 1952

Honorable John Panesko
Prosecuting Attorney, Lewis County
Chehalis, Washington                                                                                                Cite as:  AGO 51-53 No. 233

Dear Sir:

            Your letter of January 25, 1952, requests advice from our office upon the following:

            "Kindly advise me whether the Prosecuting Attorney can appear as an attorney representing private clients in suit or action against the State of Washington, Department of Highways in his own County?"

            We will assume that the type of suit or action you are referring to is a case where a prosecutor desires to undertake the defense of a condemnation action, or a case where he would appear for the plaintiff in an action against the highway department for the taking of property.

            It is our conclusion that the prosecuting attorney of a county where he is permitted by law to engage in the private practice of law, may represent a private client in a condemnation action brought by the department of highways involving a state highway, or appear for the plaintiff in an action for damages against the highway department.

             [[Orig. Op. Page 2]]


            Both the attorney general and the prosecuting attorney occupy constitutional offices.  The powers and duties of such attorneys are not outlined specifically in the constitution.  Beyond question, however, the attorney general is intended as the attorney for state government and its institutions in a broad sense, while the prosecuting attorney is attorney for his county in local matters and for the state in criminal matters arising in his county.  Sections 112, 113, and 116, Rem. Rev. Stat., provide as follows:

            Sec. 112:

            "The attorney general shall have the power and it shall be his duty:

            "1. To appear for and represent the state before the supreme court in all cases in which the state is interested;

            "2. To institute and prosecute all actions and proceedings for, or for the use of the state which may be necessary in the execution of the duties of any state officer;

            "3. To defend all actions and proceedings against any state officer in his official capacity, in any of the courts of this state or the United States;

            "4. To consult with and advise the several prosecuting attorneys in matters relating to the duties of their office, and when, in his judgment, the interests of the state require, he shall attend the trial of any person accused of a crime, and assist in the prosecution."

            Sec. 113:

            "Prosecuting attorneys are attorneys authorized by law to appear for and represent the state and the counties thereof in actions and proceedings before the courts and judicial officers."

             [[Orig. Op. Page 3]]

            Sec. 116:

            "The prosecuting attorney of each county shall have authority and it shall be his duty, subject to the supervisory control and direction of the attorney general, to appear for and represent the state and the county and all school districts in the county in which he is a prosecuting attorney, in all criminal and civil actions and proceedings in such county in which the state or such county or such school district is a party."

            It would appear from a reading of the above sections that the legislature recognizes the attorney general as the officer who institutes and prosecutes actions necessary for the execution of duties of state officers and also the officer who appears and represents the state in civil cases in which the state is interested, while the prosecuting attorney shall appear for and represent the state and the county, in his county, in all criminal, and may do so in certain civil, actions in which the state or county is a party.

            Section 4138, Rem. Rev. Stat., reads as follows:

            "No prosecuting attorney shall receive any fee or reward from any person, on behalf of any prosecution, for any of his official services, except as provided in this chapter, nor shall he be engaged as attorney or counsel for a party in any civil action [or for] a party to any criminal proceedings depending upon the same facts as such criminal [civil] proceedings."

            In the case ofCallahan v. Jones, 200 Wash. 241, 93 P. (2d) 326, the court interpreted section 4138, supra, upholding a strict construction thereof, and in such case did not approve compensation to a prosecutor from a private individual for legal services where the prosecuting attorney had also handled a criminal prosecution based upon the same facts.  The court also approved generally the principle that the legislature has the right to regulate the activities of a prosecuting attorney outside of his official duties, and to restrict the field of activities of lawyers who have accepted the office of prosecuting attorney.  However, the court went on to say at page 248:

             [[Orig. Op. Page 4]]

            "* * *

            "'He [the prosecuting attorney] is not prohibited, in the absence of statute, from representing private litigants where he owes no duty to the state.'

            "* * * ."

            Turning from a perusal of the above general statutes on the subject, if we examine the eminent domain statutes we find that in cases to which the state is a party, it is made the duty of the attorney general to represent the state.  See section 891 et seq., Rem. Rev. Stat., as amended; and, additionally, under section 112, supra, the attorney general has the duty to defend any state officer or to represent the state in cases where the state is interested.  See also in connection with the powers and duties of the attorney general the 1941 act which is codified as sections 11034-3 to 11034-7, Rem. Rev. Stat.

            In view of such enactments, then, would the attorney general have a right to demand that the local prosecuting attorney institute a condemnation action in favor of the highway department of the state, or undertake the defense of the highway department against a claim for damages?  We do not believe that in the face of the statutes, making the prosecution or defense of such actions the duty of the attorney general, that he would have the right to demand that a prosecuting attorney handle such actions when to do so would constitute a burden upon and expense to a county and its officers.  That being the case,in the absence of a statute prohibiting the same, we see no reason why a prosecuting attorney in a county where he is permitted to practice law, should not undertake the defense of a condemnation action involving the state highway department and involving a state highway, or why it is not proper for him to represent the plaintiff in an action for taking which involves the state highway department.

            This ruling should not be construed to cover situations where a municipality or a county is involved in a joint highway project with the state which requires condemnation or possible suits for taking, as local government would then be a party to the actions.

Very truly yours,

Attorney General