The Attorney Public Official

It is common for attorneys to seek part-time public office while still maintaining a private law practice. This situation presents yet another layer of ethical dilemmas for the lawyer/public official and for members of the lawyer's firm. The Arizona Supreme Court addressed conflicts in the Code of Professional Responsibility which on one hand encourages lawyers to engage in public service, but on the other hand contains numerous "oppressive restrictions" on such involvement. [FN29] 

 

The facts in the opinion under review were as follows:

Attorney P was elected to City B's city council, which is a part-time position. The City B council has the power to hire and fire the city court magistrates and the city attorney. The city attorney serves as the chief legal advisor to the council, the city manager, and all city departments, offices, agencies and represents the city in all legal proceedings. While the opinion addressed a number of potential representation scenarios for Attorney P and his firm, one question reviewed by the court was, "Are members of the firm prohibited from appearing before the various city boards, such as planning and zoning and the board of adjustment?" While the Committee on Professional Conduct answered this question in the affirmative, the court responded with a qualified "no." [FN30] 

 

The court cautioned that attorneys must exercise care to avoid the appearance of impropriety and stressed that when in doubt, the question should be resolved on the side of the stated ethical consideration. [FN31]

 

An opinion of the Florida Attorney General held that the state constitutional prohibition on dual office holding did not apply to an attorney who served as the chair of the county planning commission and who was hired during the same time to represent the county charter review commission. [FN32] The Attorney General based his opinion on the belief that the attorney's representation of the charter review commission constituted employment and not office holding. [FN33]

 

It is not uncommon for lawyer public officials to participate in government decision making and then, after the fact, be approached by a potential new client who happened to have appeared before the board to handle a matter. Where less than forty-eight hours after the city council voted on a zoning reclassification for certain land developers the developers then sought to retain a lawyer council member to represent them on matters including incorporation, the Washington Supreme Court held that under the "appearance of fairness" doctrine the attorney public official must decline the representation. [FN34]