Formal Advisory Opinion No. 86-1

State Bar of Georgia
Issued by the Supreme Court of Georgia
On December 17, 1987
Formal Advisory Opinion No. 86-1

For references to Standard of Conduct 30, please see Rule 1.7(a) and (b).

For references to Standard of Conduct 45(e), please see Rule 1.2(d) and Comment 6 of Rule 1.2.

This opinion relies on Standards of Conduct 35-38 that bear upon matters
directly addressed by Rules 1.7, and 1.10.

For references to Standard of Conduct 39, please see Rule 1.8(g).

For references to Standard of Conduct 40, please see Rule 1.8(f).

For references to Standard of Conduct 41, please see Rule 5.4(c).

This opinion relies on Ethical Consideration 8-8 that bears upon matters directly addressed by Rules 1.7, 9.5(b), and Comment 8 of Rule 6.1.

For an explanation regarding the addition of headnotes to the opinion, click here.

Lawyer Serving Simultaneously as State Legislator and Part-time Solicitor.

Correspondent requests guidance as to whether he or she may serve as both a legislator and a part-time solicitor.

The proposed dual employment may or may not be prohibited by Art. 3, § 2, | 4 of the Georgia Constitution, as interpreted by numerous opinions of the Attorney General. We do not address this issue. If it is determined in the future by appropriate authority that the laws of Georgia do not permit a part-time solicitor also to serve as a legislator, then continuing to serve in both capacities would be a violation of Standard 45(c):

For purposes of this opinion, we address only the possibility that the stated dual employment creates a conflict of interest.

Under the Standards of Conduct, impermissible conflicts of interest are defined by their potential for adversely affecting the independent professional judgment of an attorney in his or her representation of a client. The facts do not create a conflict prohibited by the Standards.

First, the Standards of Conduct identify permissible conflicts of interest created by representation of differing interests. Standards 35-41. Those provisions are concerned with inconsistent attorney-client relationships, a concern premised upon the lawyer's unique obligation of zealous representation to each individual client. Here there is no such inconsistent legal employment. A legislator is not a legal representative, but a political one.

Standard No. 30 is concerned separately with the effect of the lawyer's self-interest upon representation of the client. The guidance of Standard No. 30 is:

Standard 30. Except with the written consent or written notice to his client after full disclosure, a lawyer shall not accept or continue employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.

A violation of this standard may be punished by disbarment.

There is nothing inherent in the functions of a legislator which will or reasonably may affect the independent professional judgment of the solicitor in his or her representation of the people of the State. There are no functions of a legislator which will or reasonably may create an adverse "financial, business, property, or personal interest."

The functions of legislators are to propose, study, and vote on legislation and, in doing so, to serve the public interest. There is nothing in those functions which necessarily would or reasonably might affect the independent professional judgment of a solicitor in his or her legal representation of the people of the State through the enforcement of the laws of the State.

The dual functions of solicitor and legislator are easily distinguishable from the dual functions of solicitor and criminal defense attorney, the subject of concern in State Bar Advisory Opinion No. 44 (January 18, 1985). There the attorney sought to serve as the legal representative of client interests in opposition to the State while maintaining his or her position as the legal representative of the State's interests. The potential for an adverse effect upon independent professional judgment in that situation is inherent in the different functions. Georgia Dept. of Human Resources v. Sistrunk, 249 Ga. 543.

Although it is ethically proper for a lawyer to serve simultaneously as a state legislator and a part-time solicitor, yet a given case may pose conflicts which the attorney must resolve. Solicitors, along with all other attorneys, must be constantly on guard against interests which will or reasonably may adversely affect their independent professional judgment. If such interests arise in a particular case, solicitors should withdraw from legal representation. Consistent with Advisory Opinion No. 44, client consent is not an available alternative to withdrawal when the client is the people of the State.

This advisory opinion is necessarily limited to the ethical propriety of the solicitor's conduct as a legal representative. Nevertheless, as part of an attorney's general obligation to assist in improving the legal system, Ethical Consideration 8-8 advises: