Formal Advisory Opinion No. 89-2
Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 89-2
State Bar of Georgia
Issued by the Supreme Court of Georgia
On February 9, 1989
Formal Advisory Opinion No. 89-2
This opinion relies on the Canons of Ethics, including both Directory Rules and Ethical Considerations that bear upon matters directly addressed by Comment 2 of Rule 3.5.
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Ethical propriety of an attorney/city council member's representing private clients before city council-appointed Judges of the Recorder's Court if the attorney abstains from voting on the appointment.
An attorney, who is also a member of the city council, should avoid representing private clients before the Recorder's Court when the city council appoints the judges of the Recorders Court, and should not abstain from voting on judicial appointments.
Correspondent asks if it is ethically proper for an attorney, who is also a member of the city council, to represent private clients before the Recorder's Court, when the city council appoints the Judges of the Recorder's Court, if the attorney abstains from voting on judicial appointments.1 Correspondent also asks if other members of his or her law firm would be prohibited from such representation by imputed disqualification.
A full response to this inquiry would go beyond the ethical regulations and requires interpretation of Young v. Champion, 142 Ga. App. 687 (1977), in which the Court upheld the disqualification of a Commissioner from representation before a Recorder's Court judge who was appointed by the Commission. The Advisory Opinion Board, however, is without authority to interpret court opinions.
There are no Georgia Standards of Conduct applicable to this particular situation. An advisory opinion is not, however, limited to disciplinary issues in its interpretations of the ethical regulations of the State Bar of Georgia. This Advisory Opinion therefore offers ethical advice based on the applicable ethical regulations.
Directory Rule 8-101(a)(2) provides:
"A lawyer who holds public office shall not use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or a client." The city council is, in the situation in question, in the position of employer of the Judge of the Recorder's Court. There is inherent influence in such a position. An attorney/council member who appears before that Judge exercises that influence however unintentional the "use" of it may be and however determined both the Judge and the attorney may be to avoid its effect. Even the effort to avoid the effect changes the nature of the relationship between the Judge and the attorney. As a matter of ethical advice, we believe that the attorney/council member should avoid representation before the Judge of the Recorder's Court.
Correspondent's question seeks to avoid the inherent influence of his or her position by abstaining from all voting on the appointment of the Judges of the Recorder's Court. We cannot advise abstention as a remedy. The attorney, as noted in Ethical Consideration 8-6, is uniquely qualified to evaluate the qualifications of those seeking appointment to the bench. Lawyers have a "special responsibility to aid in the selection of only those who are qualified." EC 8-6. The attorney/council member should not avoid that public responsibility for private gain. To do so would be counter to the ethical advice of Ethical Consideration 8-8, "A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."
If correspondent follows the advice of this Opinion he will disqualify himself from representation before the Judges of the Recorder's Court. That disqualification is personal and is not imputed to the other members of the firm. In this case there are no concerns of conflicts of interest of confidentiality requiring imputed disqualification. 2
1 This opinion would not apply where city council members do not participate in appointing city judges.
2 The Board notes that its opinion in this case, and the holding of Young v. Champion, appear to be contrary to the following Advisory Opinions from other jurisdictions: Adv. Opin. #5 (New Hampshire, 10/23/81); Adv. Opin. #84-18 (South Carolina, undated); Adv. Opin. CI #990 (Michigan 12/13/83).
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