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OPINION 78-8

An attorney's representation of a sheriff in civil and administrative matters would be improper, absent emergency or hardship circumstances, when his partner or associate attorney is engaged in criminal defense practice within the same county.

Note: This opinion is partially overruled by opinion 96-2.

CPR: DR 5­105, DR 9­101

Opinions: 70­11, 72­48, 74­37, 76­3

Mr. Ervin stated the opinion of the committee:

An attorney inquires whether his contemplated representation of a sheriff in civil and administrative matters would be improper when his partner or associate attorney is engaged in criminal defense practice within the same county.

The attorney recites that he is unaware of any other law firm in the area which would not be subject to the same problem; that the sheriff has agreed that no representation would be provided by the inquiring attorney in matters in which there would be an actual conflict of interest, such as where the conduct of the sheriff or employees of his office was in question in a case in which his associate lawyer was representing a defendant; and that because of the limited nature of the inquiring lawyer's intended representation, the state attorney for the circuit in which the county is located has informally indicated he perceived no conflict arising from the representation.

Nevertheless, the information provided by the inquiring attorney demonstrates that the intended attorney­client relationship will be a continuing or recurring one and that it is contemplated the inquiring attorney will be called upon to represent the sheriff in various future matters.

In prior Opinion 76­3 the Committee has recognized that an isolated or irregular instance of representation, such as where the sheriff's "regular" attorney is unavailable, does not present the same potential or likelihood of conflict of interest or appearance of impropriety. In the instant inquiry, however, the intended representation is recurring rather than isolated.

Thus the intended representation falls squarely within that considered and advised to be improper in prior Opinions 74­37, 74­37 (Rec.), and 76­3. The Committee has again considered this recurring problem in light of the commands of Disciplinary Rules 5­105 and 9­101 and related Ethical Considerations and adheres to its former opinions. The continuing or recurring intended representation of the sheriff in the instant inquiry would present equally recurring pitfalls of potential conflict, and would also unavoidably create the appearance of impropriety to the extent the inquiring attorney was identified in the mind of the public and others as "the sheriff's lawyer" while his associate was actively engaged in defense of criminal cases.

With respect to the foregoing it must also be considered that in light of the commands of Disciplinary Rule 5­105(D) the intended relationship must be judged as though the inquiring attorney was, himself, both representing the sheriff and engaging in representation of defendants in criminal matters.

Thus, the Committee concludes that the intended representation would not be proper, absent truly emergency or hardship circumstances. As to the aforementioned exception, the Committee is of the view that the "hardship" exception recognized by prior Opinions 70­11 [since withdrawn] and 72­48 would be equally pertinent to the present type of circumstance. Under such exception, upon a determination by a circuit judge that such a "hardship" situation existed as to effectively deprive the sheriff of assistance of counsel and that no conflict prohibited by DR 5­105 was apparent in a particular intended representation, then the attorney could undertake that particular representation.

With respect to the aforementioned hardship exception, the Committee is of the view that same should be invoked only in the rare instance of real hardship wherein it appears that, without intervention of the court, the sheriff will be prejudiced by the unavailability of counsel. The ultimate determination of whether such a hardship situation exists must be made on a case­by­case basis dependent upon facts as they exist within the county at the time. The circuit court possesses the fact­finding capability which this Committee lacks for such a factual determination.

Approval (formal or informal) of a state attorney cannot take the place of the requisite judicial determination.



[Revised: 08-24-2011]