Opinion No. 34-73
Topics:
LEGISLATORS.
GENERAL ASSEMBLY.
CONSTITUTIONAL LAW.
Summary conclusion
A senator or representative who accepts an appointment and receives compensation as an attorney to represent indigent defendants by a court as provided for in House Bill No. 1314, 76th General Assembly, Second Regular Session, violates the provisions of Section 12, Article III of the Constitution of Missouri. Other members of the law firm of which a senator or representative is a member are disqualified from accepting an appointment by the court to represent an indigent defendant and receive compensation. under the provisions of such bill.
Contents of opinion
January 5, 1973
Honorable Paul L. Bradshaw
State Senator
705 Woodruff Building
Springfield, Missouri 65806
Dear Senator Bradshaw:
This response to your request for an opinion from this office as follows:
"Does Article III, Section 2 of the Constitution of Missouri, or any other provision of the Constitution or laws of this state prohibit a member of the General Assembly or the law partner or law associate of such member from being appointed to represent indigent defendants in felony cases pursuant to the provisions of House Bill 1314 enacted by the 76th General Assembly, and to receive compensation therefor?"
You further state that you are a member of the Missouri Senate and engaged in private practice of law in partnership with other lawyers and all fees received by any partner or associate of such firm are shared by all partners.
You refer to House Bill No. 1314 enacted by the 76th General Assembly which provides for the appointment of attorneys in certain cases to represent indigent persons charged with felonies, ..., 76th General Assembly, Second Regular Session, 1972. Section 11 of said Act provides that in all judicial circuits with a certain population the judge shall appoint one or more members of the bar to advise, represent, appear on behalf of or defend indigent persons as provided in said Act. It further provides for reasonable compensation to be allowed by the court to be paid by the state.
Article III, Section 12 of the Missouri Constitution provides:
"No person holding any lucrative office or employment under the United States, this state or any municipality thereof shall hold the office of senator or representative. When any senator or representative accepts any office or employment under the United States, this state or any municipality thereof, his office shall thereby be vacated and he shall thereafter perform no duty and receive no salary as senator or representative. During the term for which he was elected no senator or representative shall accept any appointive office or employment under this state which is created or the emoluments of which are increased during such term. This section shall not apply to members of the organized militia, of the reserve corps and of school boards, and notaries public."
We are enclosing herewith Opinion Letter No. 355 issued by this office on October 19, 1969, to Honorable Ted Salveter, State Representative, District 142, Springfield, Missouri, to the effect that a member of the state legislature cannot represent a state college or other state institution as an attorney without violating the provisions of Article III, Section 12, supra, of the Missouri Constitution.
As we stated in Opinion Letter No. 355, supra, pursuant to the authority of Supreme Court Rule 5.16, the Advisory Committee of the Missouri Bar issued Official Opinion No. 91 in which it is stated that "a law firm may not render professional services with regard to any matter which any partner, associate or employee could not properly perform."
We believe these same principles of law apply to your situation.
CONCLUSION
It is the opinion of this office that a senator or representative who accepts an appointment and receives compensation as an attorneY to represent indigent defendants by a court as provided for in House Bill No. 1314, 76th General Assembly, Second Regular Session, violates the provisions of Section 12, Article III of the Constitution of Missouri. Other members of the law firm of which a senator or representative is a member are disqualified from accepting an appointment by the court to represent an indigent defendant and receive compensation under the provisions of such bill.
The foregoing opinion, which I hereby approve, was prepared by my assistant, Moody Mansur.
Very truly yours,
John C. Danforth
Attorney General