This Advisory Opinion concerns the following issue as formulated from facts and/or circumstances furnished by a requestor. The Commission approved this opinion on July 12, 1996, basing its approval solely on the facts and circumstances stated herein.

May a youth court prosecutor take court appointed cases as a efendant's attorney in the justice court of the county he or she serves as the youth court prosecutor?

The pertinent conflict of interest laws to be considered here are:

Code Section 25-4-101 states:

"The legislature declares that elective and public office and employment is a public trust and any effort to realize personal gain through official conduct, other than as provided by law, or as a natural consequence of the employment or position, is a violation of that trust. Therefore, public servants shall endeavor to pursue a course of conduct which will not raise suspicion among the public that they are likely to be engaged in acts that are in violation of this trust and which will not reflect unfavorably upon the state and local governments."

Code Section 25-4-103(a), (e), (f)(i)(ii), (g)(i)(ii)(iii)(iv)(v), (h), (1) and (p)(i)(ii)(iii) states:

"(a) 'Authority' means any component unit of a governmental entity.

(e) 'Compensation' mean money or thing of value received, or to be received, from any person for services rendered.

(f) 'Contract' means:

(i) Any agreement to which the government is a party; or

(ii) Any agreement on behalf of the government which involves the payment of public funds.

(g) 'Governmental' means the state and all political entities thereof, both collectively and separately, including but not limited to:

(i) Counties;

(ii) Municipalities;

(iii) All school districts;

(iv) All courts; and

(v) Any department, agency, board, commission, institution, instrumentality, or legislative or administrative body of the state, counties or municipalities created by statute, ordinance or executive order including all units that expend public funds.

(h) 'Governmental entity' means the state, a county, a municipality or any other separate political subdivision authorized by law to exercise a part of the sovereign power of the state.

(p) 'Public servant' means:

(i) Any elected or appointed official of the government;

(ii) Any officer, director, commissioner, supervisor, chief, head, agent or employee of the government or any agency thereof, or of any public entity created by or under the laws of the State of Mississippi or created by an agency or governmental entity thereof any of which is funded by public funds or which expends, authorizes or recommends the use of public funds; or

(iii) Any individual who receives a salary, per diem or expenses paid in whole or in part out of funds authorized to be expended by the government."

Code Section 25-4-105(1), (3)(a) and (4)(h) states:

"(1) No public servant shall use his official position to obtain pecuniary benefit for himself other than that compensation provided for by law, or to obtain pecuniary benefit for any relative or any business with which he is associated.

(a) Be a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent, other than in his contract of employment, or have a material financial interest in any business which is a contractor, subcontractor or vendor with the governmental entity of which he is a member, officer, employee or agent.

(h) May be employed by or receive compensation from an authority of the governmental entity other than the authority of the governmental entity of which the public servant is an officer or employee."

Is it a conflict of interest for the County Youth Court Prosecutor to take court appointed cases as a defendant's lawyer in the County Justice Court?

I have been chosen by the County Court Judge to replace the current Youth Court Prosecutor who resigned effective July 1, 1996. My appointment is subject to approval by the County Board of Supervisors.

Section 99-15-15, 1972 Mississippi Code Annotated, provides that persons charged with a felony, a misdemeanor punishable by confinement for 90 days or more, or acts of delinquency shall if indigent have counsel appointed for them by the court or the judge in vacation. Code Section 99- 15-17, 1972 Mississippi Code Annotated, provides that if a case does not originate in a court of record, such as a justice court, the compensation for serving as an indigent's counsel shall not exceed $200.00 and that a judge of the chancery court, county court or circuit court must approve the compensation paid.

The Commission formally adopts Advisory Opinions No. 95-139-E and No. 91-138-E in response to this request and by attachment incorporates them into this opinion.

Based solely on the facts and circumstances presented by the requestor, the Commission's opinion is as follows.

A county youth court prosecutor is not as such prohibited by the conflict of interest laws from being appointed and thereafter compensated for serving as counsel for an indigent defendant appearing before the county's justice court as authorized by Code Sections 99-15-15 and 99-15-17.

This finding is based on the attached opinions which held that the youth court is a separate authority from the county board of supervisors and therefore its related offices, such as the justice court office. Therefore, the above cited Code Section 25-4-105(3)(a) does not prohibit the county youth court prosecutor from being compensated by the county to serve as indigent counsel in the justice court because the exception found in the above cited Code Section 25-4-105(4)(h) is applicable to this circumstance.

Notwithstanding the above, the requestor is advised not to use the position of youth court prosecutor to obtain appointments as indigent counsel in the justice court as to do so would violate the above cited Code Section 25-4-105(1).

The Commission also advises that the fees paid the requestor for serving as indigent counsel in the justice court should not be approved by the county court judge so as to comply with the Legislature's "Declaration of Public Policy" set forth in the above cited Code Section 25-4-101.

The requestor should contact the Mississippi State Bar's Ethics Committee to decide when serving as a youth court prosecutor while accepting appointments as indigent counsel in the justice court might violate the Rules of Professional Conduct.

Ronald E.Crowe
Executive Director