Opinion No. ( 1993 )

The Honorable Kevin Smith State Senator 1609 Coker-Hampton Drive Stuttgart, AR 72160

Dear Senator Smith:

This is in response to your request for an opinion on the following question:

Can a prosecuting attorney for the State of Arkansas represent a defendant in municipal court within the prosecuting attorney's jurisdiction?

In my opinion, the answer to your question is "no."

Under Arkansas law, prosecuting attorneys in the larger judicial districts (Division A districts) are specifically prohibited from engaging in the private practice of law. See A.C.A. § 16-21-118 (1987). Prosecuting attorneys in the smaller judicial districts (Division B districts) are not subject to this prohibition. See A.C.A. § 16-21-117 (Cum. Supp. 1991) (delineation of Division A and Division B judicial districts). It is my opinion that, even if a prosecuting attorney is not specifically prohibited from practicing law by § 16-21-118, he is ethically prohibited from representing defendants in criminal matters within his jurisdiction, i.e., the judicial district he serves.¹ As is aptly stated in 27 C.J.S. District and ProsecutingAttorneys § 12(9) (1959), "although a prosecuting attorney may engage in private practice when not prohibited by statute, he should not take a private position antagonistic to that of, or conflicting with, his public duty." In my opinion, a prosecuting attorney's representation of criminal defendants in any court in his jurisdiction would constitute taking a position antagonistic to his public duties and should be avoided. Besides the obvious potential for conflicts of interest involved, the practice would clearly impact negatively on the public's perception of the administration of justice. See generally Howerton v. State,640 P.2d 566 (Okla.Crim.App. 1982); Yates v. Peyton,207 Va. 91, 147 S.E.2d 767 (1966); and In re Ridgely, 48 Del 464,106 A.2d 527 (1954).

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Catherine Templeton.

Sincerely,

WINSTON BRYANT Attorney General

WB:cyh

¹ This opinion does not address whether a prosecuting attorney may represent defendants in criminal matters outside his jurisdiction.