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Res 094-2013 9/3/2013 RESOLUTION NO. 94-2013 Resolution Clarifying Councilor Representation Of Third Parties To Prohibit Some Conflicts And Waive Other Future, Potential Conflicts WHEREAS, Opinion 497 of the Texas Supreme Court Professional Ethics Committee, addressed three hypothetical scenarios involving City Councilor representation of persons whose crimes were investigated by City police officers; WHEREAS, Opinion 497 opined that Councilor representation was prohibited in all three hypothetical scenarios, but also stated that the parties could give consent to the representation after consultation and full disclosure pursuant to Section 1.06(c) of the Texas Disciplinary Rules of Professional Conduct; WHEREAS, after reviewing Opinion 497 and conferring with legal counsel, the City Council finds that it has received consultation and full disclosure pursuant to Section 1.06(c) of the Texas Disciplinary Rules of Professional Conduct ; and WHEREAS, the City Council believes it is in the best interest of the City to clarify Council representation of third parties to prohibit some conflicts of interest and waive other future, potential conflicts of interest. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WICHITA FALLS, TEXAS, THAT: The City Manager is hereby authorized to execute the attached Waiver of Potential, Future Conflict of Interest, with changes to form as approved by the City Attorney, which clarifies the City’s position with respect to future, potential conflicts of interest by City Councilor Ben Hoover and limits his authority as described therein to avoid the actual conflicts of interest identified therein. PASSED AND APPROVED this the 3rd day of September, 2013. ______________________________ M A Y O R ATTEST: ____________________ City Clerk Waiver of Potential, Future Conflict of Interest Whereas, Opinion 497 (attached) of the Texas Supreme Court Professional Ethics Committee discussed the following questions: 1. May Attorney X, while serving as a city commissioner on the city commission of a home-rule Texas city, represent persons charged with criminal offenses in the county and district courts where the city police department participates in the investigation and/or arrest of the defendant? May Attorney Y, his law partner, represent such persons? 2. May Attorney X represent persons charged with criminal offenses in the county and district courts where members of the city police department are victims (i.e., assault on a peace officer)? May Attorney Y represent such persons? 3. May Attorney X represent persons charged with criminal offenses in the county and district courts where the arrest and/or search warrant in the case is issued by the city judge? May Attorney Y represent such persons? Whereas, Opinion 497 determined that Attorney X may represent persons charged with criminal offenses if “all parties give appropriate consent after consultation and full disclosure pursuant to DR 1.06(c).” Whereas, the basis for Opinion 497 was the following: Although Attorney X does not exercise control over the day-to-day operations of the city police department, as a City commissioner, he appoints the city manager, who does ultimately direct the activities of the police department. Certainly, the actions of police officers within a city reflect upon the city commissioners. By representing a person charged with criminal offenses where the city police department participates in the investigation and/or arrest of the defendant, or where the police officers are victims of a crime, Attorney X places himself in a conflict between protecting the city's (and since he is a commissioner, his) interests and in protecting the interests of his client. This situation would also place the police officers in the awkward position of performing their job duties while dealing with a city commissioner who is acting as an attorney in the case. As a city commissioner, Attorney X exercises even more control over the city judge than he does over the police officers. The city commission actually hires the city judge. The actions of the city judge in executing the arrest and/or search warrant, and any other action taken by the judge would necessarily affect the welfare of the Attorney X's client. However, if the judge did not perform his job properly, the welfare of the city, and hence that of the city commission which is the personal interest of Attorney X, would be affected. Whereas, the City of Wichita Falls understands that: Neither Councilor Ben Hoover nor his law firm will accept civil cases that implicate potential financial liability by the City or by City employees acting in their scope of employment; Neither Councilor Ben Hoover nor his law firm will accept criminal cases that would involve appearances before the City of Wichita Falls Municipal Court; Neither Councilor Ben Hoover nor his law firm will accept criminal cases in which members of the Wichita Falls Police Department or other City employees acting in their official capacity are victims (e.g., assault on a peace officer); Whereas, police officers are shielded from influence by members of the City Council due to the City’s adoption of Chapter 143 of the Texas Local Government Code, which states, in relevant part, as follows: “Texas Local Gov’t Code § 143.001(a) The purpose of this chapter is to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants. . .” Whereas, unlike the fact situation in Opinion 497, City Council members do not appoint members of the Civil Service Commission. Instead, those members are appointed by the City Manager, and merely confirmed by the City Council; Whereas, the Judge of the Municipal Court rarely performs pretrial duties (e.g., search warrants, arrest warrants, magistration) on non-Class C criminal cases that involve defendants who are represented by attorneys in the cases in which the pretrial duties are being performed; Whereas, all parties have been apprised of the risks of conflicts of interest and have reviewed Opinion 497 (copy attached); Whereas, all parties have been advised by legal counsel of their choosing. Now therefore: 1. The City of Wichita Falls hereby waives the potential, future conflict of interest described by the first and third hypotheticals of the attached Opinion 497, and Councilor Ben Hoover and his law firm will be permitted to:  represent persons charged with criminal offenses in the county and district courts where the city police department participates in the investigation and/or arrest of the defendant. and  represent persons charged with criminal offenses in the county and district courts where the arrest and/or search warrant in the case is issued by the city judge. and  represent persons in civil cases that were investigated by officers of the city police department wherein the city is not a party to the lawsuit. 2. This waiver shall not constitute authority for Councilor Ben Hoover or his law firm to accept criminal cases in which the City or members of the Wichita Falls Police Department or other City employees acting in the official capacity are actual victims (e.g., assault on a peace officer). 3. This waiver shall not constitute authority for Councilor Ben Hoover or his law firm to accept criminal cases in which the City has a potential related civil interest as a party or as a potential party (e.g., gang injunction violations). 4. A condition and limitation of this waiver is that Councilor Ben Hoover shall not have any special right resulting from his membership on City Council to access information of the City that relates to a criminal case in which he or his law firm represents a client. 5. This waiver may be withdrawn at any time, but any withdrawal shall not affect the right of Councilor Ben Hoover or his law firm to represent persons who obtained such representation prior to the withdrawal. Executed, this the ____ day of _____________________, 2013. Waiver by City of Wichita Falls: Acknowledgment of Facts & Representations: ___________________________ _________________________________ Darron Leiker, City Manager Ben Hoover, City Councilor ___________________________ Glenn Barham, Mayor OPINION 497 August 1994 Question Presented 1. May Attorney X, while serving as a city commissioner on the city commission of a home- rule Texas city, represent persons charged with criminal offenses in the county and district courts where the city police department participates in the investigation and/or arrest of the defendant? May Attorney Y, his law partner, represent such persons? 2. May Attorney X represent persons charged with criminal offenses in the county and district courts where members of the city police department are victims (i.e., assault on a peace officer)? May Attorney Y represent such persons? 3. May Attorney X represent persons charged with criminal offenses in the county and district courts where the arrest and/or search warrant in the case is issued by the city judge? May Attorney Y represent such persons? Facts Attorney X is a partner in a two-person firm in a small Texas city. Attorney X also serves as a city commissioner on the city commission of this same home-rule Texas city. The city has a city manager form of government. The city commission hires only the city manager, city judge, and city attorney. All other city positions are filled by the city manager under the city's charter. The city commission does set the police department budget and appoint members to the civil service commission who hear police disciplinary appeals, but has no control or input into the police disciplinary appeals process other than the confirmation of appointments to the civil service commission. Attorney X and his partner Attorney Y have a criminal and civil trial practice and take criminal cases both on a retained and court-appointed basis. Discussion The applicable rules of the Texas Disciplinary Rules of Professional Conduct which govern this situation are DRs 1.06(b)(2), 1.06(c)(2) and 1.06(f). Rule 1.06(b)(2) prohibits the representation of a person if the representation reasonably appears to be or becomes adversely limited by the lawyer's or law firm's responsibilities to another client or to a third person or by the lawyer's law firm's own interests. Although Attorney X does not exercise control over the day to day operations of the city police department, as a City commissioner, he appoints the city manager, who does ultimately direct the activities of the police department. Certainly, the actions of police officers within a city reflect upon the city commissioners. By representing a person charged with criminal offenses where the city police department participates in the investigation and/or arrest of the defendant, or where the police officers are victims of a crime, Attorney X places himself in a conflict between protecting the city's (and since he is a commissioner, his) interests and in protecting the interests of his client. This situation would also place the police officers in the awkward position of performing their job duties while dealing with a city commissioner who is acting as an attorney in the case. As a city commissioner, Attorney X exercises even more control over the city judge than he does over the police officers. The city commission actually hires the city judge. The actions of the city judge in executing the arrest and/or search warrant, and any other action taken by the judge would necessarily affect the welfare of the Attorney X's client. However, if the judge did not perform his job properly, the welfare of the city, and hence that of the city commission which is the personal interest of Attorney X, would be affected. A similar issue was addressed in Ethics Opinion 429, wherein it was decided that a part-time associate city judge may not represent a person accused of a crime where the police in that city are or may be potential witnesses in the trial of that case. Attorney X is a public officer, and, or such, is held to a high standard of integrity (Comment 7, Rule 8.04). Having an attorney who is a city commissioner involved in representation of criminal defendants in which employees of the city are involved creates a conflict between the client's interests and city's interests as well as the attorney's own interests. Such representation violates Disciplinary Rule 1.06(b)(2). Further, since Attorney X may not represent these criminal defendants, neither can his partner, Attorney Y. See DR 1.06(f). However, DR 1.06(c) provides for the affected parties to consent to such representation. If lawyer X believes that the representation of his client will not be materially affected by his service as a city commissioner (and vice versa), and both the client and the city consent to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any, such representation would not be in violation of the disciplinary rules. Conclusion The representation of a private client by Attorney X, who is also a city commissioner, and Attorney Y, the law partner of Attorney X, in any of the three proposed situations would be a violation of DR 1.06(b), unless all parties give appropriate consent after consultation and full disclosure pursuant to DR 1.06(c).