Cross Examination of Law Enforcement Officer by Criminal Defense Lawyer Who is Also Elected Official
Adopted: January 25, 2008
Opinion rules that a lawyer who serves on a city council or board of county commissioners may represent a criminal defendant in a criminal proceeding in which a law enforcement officer employed by the council or board is a witness who will be cross examined by the lawyer provided the city or county has adopted a form of government that limits the lawyer's influence on employment decisions relative to the officer.
Inquiry #1:
Attorney is a criminal defense lawyer in private practice. He is presently a candidate for city council for City M. The city charter of City M provides for the council-manager form of government pursuant to Chapter 160A, Article 7, Part 2, of the General Statutes. In this form of government, the city manager, who is hired by the city council and serves at its pleasure, has the sole authority to hire, fire, promote, or make salary decisions relative to all city officers, department heads, and employees in administrative service (and not elected), except the city attorney. N.C.G.S. 160A-148. The city manager's authority to make employment decisions extends to the chief of police and to all employees of the police department. City M's city charter and local ordinances specify that the city manager, not the city council, is responsible for hiring, firing, and promoting police officers.
RPC 63 and RPC 73 hold that a lawyer who has the potential to influence the salary or employment prospects of a law enforcement officer may not represent criminal defendants in cases in which a law enforcement officer is a witness who must be cross examined by the lawyer. The opinion effectively disqualifies a lawyer who is serving on a governing body, such as the city council, from representing criminal defendants in the judicial district where he serves as a city councilor.
If a lawyer is elected to serve on a city council organized and operated under the council-manager form of government, as described above, in which the lawyer will have no ability directly to influence the salary or employment decisions relative to any law enforcement officer testifying in a criminal case, may the lawyer represent criminal defendants in criminal proceedings in the judicial district where he serves as a city councilor and cross-examine witnesses who are law enforcement officers?
Opinion #1:
Yes. RPC 73 ruled that a lawyer serving on a city council or similar governing board, with authority directly to influence employment decisions relative to government employees, is prohibited from cross-examining law enforcement officers because of "the threat that the law enforcement officer might not feel free to testify truthfully and fully in the face of such an opponent." In the council-manager form of government, the city council and councilors have no direct authority over the salary or employment prospects of any city employee. Therefore, a law enforcement officer's ability to testify truthfully in a criminal case will be unaffected by the defense lawyer's role on the city council.
Inquiry #2:
Chapter 153A, Article 5, Part 2 of the General Statutes provides the counties may adopt the county-manager plan of government in which the county manager is hired by the board of commissioners to serve at its pleasure. Although similar to the council-manager form of government for muncipalities, the county-manager form of government gives the county manager less discretion in employment decisions. The county manager is the chief administrator of county government and appoints, with the approval of the board of commissioners, and suspends or removes all non-elected county officers, employees, and agents. N.C.G.S. 153A-82(1). The county manager is also responsible for preparing position classification and pay plans for county officers and employees for submission to the board of commissioners and for administering the pay plan and any position classification plan in accordance with general policies and directives adopted by the board. N.C.G.S. 153A-92(c).
If a lawyer is elected to serve on a board of commissioners organized and operated under the county manager form of government, as described above, in which the lawyer will have no authority to influence a decision to suspend or remove a law enforcement officer and limited authority to influence the employment and compensation of a law enforcement officer testifying in a criminal case, may the lawyer represent criminal defendants in criminal proceedings in the judicial district where he serves as a county commissioner and cross-examine witnesses who are law enforcement officers?
Opinion #2:
Yes. Although the board of commissioners in a county-manager form of government has more authority over employment decisions including approval of appointments and establishing the pay plan and position classifications, it is doubtful that the limited influence on a law enforcement officer's salary or employment prospects held by the criminal defense lawyer will affect or interfere with the law enforcement officer's duty to testify truthfully.