OPINION 252
June 1952

CONFLICTING INTERESTIf an individual, tax-paying citizen seeks an injunction against the individual members of the Commissioners' Court of the county in which he resides in order to prohibit their making illegal expenditures of county funds and if the County itself is made a party defendant, it would be unethical for the same attorneys who represent the individual commissioners to represent the County.

Canon 6.

Question

An individual, tax-paying citizen seeks an injunction against the individual members of the Commissioners' Court of the county in which he resides in order to prohibit them from making illegal expenditures of county funds. By Plea in Abatement, filed by attorneys of record for the individual defendants, the County is made a party defendant. Is it unethical for the same attorneys representing the individual members of the Commissioners' Court to represent the County?

Opinion

The propriety of the same attorneys representing the individual commissioners as well as the County in a lawsuit of this nature depends, of course, upon whether or not there is a possibility of a conflict of interest between the individual commissioners and the County. In determining the existence of a conflict of interest, or the possibility thereof, the material issue is that of whether or not the individual commissioners have, in fact, in the past spent county funds improperly. If they have not, there is no conflict of interest between the individual defendants and the County; but, if funds were spent improperly, there is a conflict in that the County may be entitled to reimbursement by the individuals. Also, there may be problems of estoppel by judgment arising from the lawsuit so that the County's interest in this litigation may conflict with the interests of the individuals.

The committee believes that there is a potential conflict existing in the situation presented in the inquiry and that the potential conflict is so great that it would be improper under Canon 6 for the same attorneys or the same firm of attorneys to represent both the County and the individual commissioners. It has been held that an attorney may be disqualified under Canon 6 even though the conflicting issues are not presently being litigated. Wilson v. Wahl, 182 Kan. 532, 322 P. 2d 804 (1958).

There might be involved a question of consent for, with consent, an attorney may sometimes represent conflicting interests. However, the committee does not see how the County could consent when it must act through the same individuals who have the potentially conflicting interests. (9-0.)