Moonlighting in the legal profession often raises the specter of conflict of interest.
But a survey of county attorneys throughout the state shows that most are moonlighters with private legal practices apart from their county duties - with no apparent conflicts.What are Utah counties and the legal community doing to avoid those conflicts? Some counties restrict their barristers or their deputies from private practice, effectively avoiding potential conflicts.
But in the majority of cases, especially in small, rural Utah counties that must hire part-time attorneys, counties are forced to rely on the integrity and self-inspection of their own county attorneys.
Do such laissez faire methods for ensuring a conflict-free environment work? Ask a county attorney, except around election time, and he or she is hard-pressed to put a finger on a specific example of conflict of interest.
Further, the Utah State Bar Association's Board of Commissioners hasn't ruled on a complaint involving county attorneys who practice part-time on the side in recent history.
There are, however, numerous theoretical conflicts of interest. Several county attorneys from around the state are quick to point out such examples, arguing that county attorneys, if it all possible, should be restricted from private practice.
For instance, a county attorney who also represents another city in his private practice could present a number or distressing conflicts, said Cache County Attorney S.L. Gunell.
In zoning matters, cities and counties are often diametrically opposed in their objectives, Gunell said. Cities may see an increased tax base in an annexation issue, whereas counties may see a tax loss, he said.
Scenarios like that should compel county commissions to rule a county attorney's office be a full-time position, prohibiting officials from outside practice, Gunell said.
Gunell was elected the first full-time county attorney in Cache County 10 years ago under a county ordinance restricting him from private practice - a move he dubbed "a positive step forward," he said.
He and attorneys from Iron, Sevier and Uintah counties are the only county attorneys in the state who are formally restricted by county resolution or ordinance from holding private practice.
Salt Lake and Davis counties restrict their deputy attorneys from private practice but not their bosses. Salt Lake County Attorney Dave Yocom, for example, is not restricted from private practice but chooses to work only
for the county. In Utah County, the county attorney and his deputies don't have private practices but only as a matter of office policy.
"I would think that if a county population would justify a full-time attorney that would be preferable to a multitude of part-time attorneys," Gunell said.
"But I want to be objective about that," he added, saying that many rural counties can't afford to hire even a single full-time attorney or sustain one with enough legal business.
In fact, 17 Utah counties hire only part-time barristers because many of them are unable to sustain a full-time attorney and can't pay a fair salary for attorneys who say they already work long hours for poor pay.
Those counties simply rely on their county attorneys to be observant in order to avoid conflicts of interest. County attorneys and other outside observers say the system works.
State statute prohibits any county attorney from criminal defense work, an obvious conflict given that some of their duties include criminal prosecution. But in civil matters, how are private clients juggled with an attorney's allegiance to the county?
"Very carefully," said Carbon County Attorney Nick Sampinos, who also moonlights at his part-time practice. "We just very carefully watch who our clients are," he said.
Clients must be made fully aware of whom their attorney works for, Juab County Attorney Donald Eyre said.
"I explain to them that my first priority is my county job; it's not an unusual situation in a rural county because there are all kinds of conflicts that may arise," he said.
The Utah attorney general's office, which may offer the services of one of it's attorneys in the event of an obvious conflict, says county attorneys do an adequate job of monitoring themselves.
"Often it's the county attorney himself who calls up and says `I have a conflict and could you help me out by taking over,' " Deputy Attorney General Paul Tinker said.
"Sometimes it's a matter of sorting through the facts to see if its real or appearance. Sometimes it's a matter of disclosing the situation, of making sure everything's on the table," he said.
"They (conflicts of interest) aren't rampant, at least not at a terribly meaningful level, not at a level that corrupts the stability of the criminal justice system . . . For the most part, if everybody operates in good faith, they can be resolved without any difficulty," he said.
If personal oversight fails, there is a yet-to-be-tested ethics committee established as part of the Statewide Association of Prosecutors, which is also studying the possibility of establishing a district attorney system to replace county attorneys.
Under a DA system, a single full-time county attorney could serve several counties where once part-time county attorneys worked, thus eliminating conflict of interest among part-time county attorneys, said Yocom, who backs the idea.
Additionally, the DA system would promote professionalism in county prosecutors, he said.
One full-time attorney could serve several smaller counties, devoting time, expertise and money to the career, he said.
"We want to have a statewide system that can provide counties with the best prosecution available," he said.