Opinion

Defendant Douglas Lamar Rhodes, an indigent, was convicted of forgery (Pen. Code, § 470) after a jury trial at which he was represented by appointed counsel who, at the time of the appointment and trial was the City Attorney of Hanford.1 Hanford is the county seat of Kings County wherein the trial was conducted. The responsibilities of a city attorney include, inter alia, the prosecution of persons accused of violating city ordinances. (Gov. Code, § 41803; People ex rel. Chapman v. Rapsey (1940) 16 Cal.2d 636, 643 [107 P.2d 388].)2 Defendant’s principal contention on appeal is that he was denied his constitutional right to effective assistance of counsel because the prosecutorial responsibilities of a city attorney constitute a conflict of interest which *183precludes effective representation of criminal defendants.3 Although we do not reach the issue of whether the appointment of a city attorney to represent indigent criminal defendants is constitutionally impermissible, we are of the view, for the reasons which follow, that vital interests of criminal defendants and the- criminal justice system are adversely affected when public prosecutors are permitted to defend or assist in the defense of persons accused of crime. We accordingly conclude that it was contrary to public policy to appoint Hanford’s city attorney to represent defendant and that defendant’s conviction must therefore be reversed.4

It is settled that an indigent charged with committing a criminal offense is entitled to legal assistance unimpaired by the influence of conflicting interests. (Glasser v. United States (1942) 315 U.S. 60, 70 [86 L.Ed. 680, 699, 62 S.Ct. 457]; People v. Chacon (1968) 69 Cal.2d 765, 774 [73 Cal.Rptr. 10, 447 P.2d 106].)5 Defendant in the instant case was tried for forgery, a violation of state laiw, and at the time of the trial the prosecutorial responsibilities of defendant’s appointed counsel were limited to violations of municipal ordinances. (See ante, fn. 2.) Thus, the representation of defendant did not directly conflict with appointed counsel’s official duties as city attorney. Notwithstanding the absence of such a direct conflict, there nevertheless are considerations of a practical nature which have a potentially debilitating effect on both the quality of the legal assistance rendered by a city attorney to criminal defendants and the ability of a city attorney to properly discharge his prosecutorial responsibilities.

We note, inter alia, that city police officers are the principal source of witnesses relied upon by a city attorney in prosecutions for violations of *184city ordinances. If these same police officers are witnesses in a case in which a city attorney is acting as defense counsel, he might be reluctant to engage in an exhaustive or abrasive cross-examination of such officers even though such might well be required. A city attorney in his capacity as defense counsel might also be influenced to dilute his criticism of local police conduct even though the situation calls for stressing the impropriety of police activity. In Karlin v. State (1970) 47 Wis.2d 452 [177 N.W.2d 318]' the Wisconsin Supreme Court aptly explained the practical difficulties confronting a city attorney under similar circumstances: “the temptation might well arise to be not too hard on a police witness who is against your client today but would be the star witness for your prosecution tomorrow.” (Id., at p. 321.)

In the situation confronting a city attorney acting as a defense counsel there inevitably will arise a struggle between, on the one hand, counsel’s obligation to represent his client to the best of his ability and, on the other hand, a public prosecutor’s natural inclination not to anger the very individuals whose assistance he relies upon in carrying out his prosecutorial responsibilities. Such a conflict of interest would operate to deprive a criminal defendant of the undivided loyalty of defense counsel to. which he is entitled.

This same potentially debilitating conflict of interest, is operative when, as in the case at bench, the only police officers called as witnesses are members of neighboring law eqf or cement agencies.6 Neighboring and overlapping law enforcement agencies have close working relationships, and resentment engendered by a city attorney within the membership of such agencies would have an adverse effect on the relationship of the city attorney with members of his local police department. In addition, as a public prosecutor a city attorney is granted courtesies and assistance by the police departments and prosecuting authorities of the county and other municipalities. It is possible that a vigorous and determined representation of a criminal defendant might result, in the withdrawal or weakening of this helpful cooperation and, therefore, a city attorney might be tempted to temper his advocacy accordingly.

In addition to the foregoing considerations, we cannot ignore the public’s interest in the successful prosecution of those guilty of crime. If, because of a vigorous representation of a criminal defendant by a public prosecu*185tor there results a weakening of assistance provided by local and neighboring law enforcement agencies, the prosecutor’s ability* to enforce those criminal laws falling within the scope of his responsibilities as a city attorney would be severely undermined.7 Indeed, this was the principal consideration which led the Committee on Professional Ethics of the American Bar Association to conclude that a public prosecutor in one state may not properly defend a person accused of a crime in a sister state, even though the case was to be tried in the latter state and the law of neither state prohibited the public prosecutor from engaging in such criminal defense work. (ABA Op. 30 (Mar. 2, 1931).) Thus, even if defendants’ interests are unaffected, the proper functioning of the criminal justice system may be endangered where public prosecutors engage in the private representation of criminal defendants.8

Wholly apart from the detrimental effects engendered by the conflicting loyalties of defense counsel and public prosecutor, we are persuaded that there are other compelling public policy considerations which render it inappropriate for a city attorney with prosecutorial responsibilities to represent criminal defendants. It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as is possible, the appearance of impropriety.9 It is this latter consideration that underlies a series of rulings by the American Bar Association Ethics Committee in which it was concluded that the legal system would be adversely affected if public prosecutors accepted employment as crimi*186nal defense counsel.10 The committee expressly concluded that if the responsibilities of a city attorney include the prosecution in any court of offenses against criminal statutes or municipal ordinances, the need to remain free of suspicion of impropriety made it improper for such a city attorney to defend any person accused of crime whether or not the offense is within the scope of his prosecutorial duties. (ABA Op. 34, supra.)11 We believe that the committee was justifiably concerned that to the public it might appear that a public prosecutor who was representing criminal defendants would use his influence and position to extract favorable treatment for such defendants in order to further the success of his private professional career. Even the appearance of such impropriety could operate to weaken the public’s confidence in the system of criminal justice.

To summarize, the nature and duties of a public prosecutor are inherently incompatible with the obligations of a criminal defense counsel. When a city attorney represents criminal defendants there arises the possibility that either the defendant’s interest in a vigorous and determined advocacy or the public’s interest in the smooth functioning of the criminal justice system will suffer. In addition, public confidence in the integrity of the criminal justice system could be adversely affected by the appearance of impropriety incident to a public prosecutor’s private representation of a criminal defendant. Thus, the interests of both criminal defendants and the judicial system require that city attorneys who have prosecutorial responsibilities not represent criminal defendants. (Accord, Karlin v. State, supra, 177 N.W.2d 318, 322; see also Goodson v. Peyton (4th Cir. 1965) 351 F.2d 905, 909.) We accordingly conclude that as a judicially declared rule of criminal procedure (see People v. *187Vickers (1972) 8 Cal.3d 451, 461 [105 Cal.Rptr. 305, 503 P.2d 1313]; People v. Cahan (1955) 44 Cal.2d 434, 442 [282 P.2d 905, 50 A.L.R.2d 513]) a city attorney with prosecutorial responsibilities may not defend or assist in the defense of persons accused of crime.12 Since it was improper to appoint Hanford’s city attorney to represent defendant, the judgment of conviction must be reversed.13

Defendant’s argument that another trial after reversal of his conviction would violate his right not to be placed in double jeopardy is without merit. It is axiomatic that one who successfully attacks a judgment of conviction subjects himself to a retrial which may reach the same result, (United States v. Ball (1896) 163 U.S. 662, 672 [41 L.Ed. 300, 303-304, 16 S.Ct. 1192]; People v. Henderson (1963) 60 Cal.2d 482, 495 [35 Cal. Rptr. 77, 386 P.2d 677]; People v. Green (1956) 47 Cal.2d 209, 235 [302 P.2d 307].) Defendant’s reliance on Strunk v. United States (1972) 412 U.S. 434 [37 L.Ed.2d 56, 93 S.Ct. 2260] and In re Pfeiffer (1968) 264 Cal.App.2d 470 [70 Cal.Rptr. 831] is misplaced. Strunk held that dismissal of the charges against the defendant was the appropriate remedy when the defendant had been denied his right to a speedy trial. And Pfeiffer concluded that pursuant to Penal Code section 148414 dismissal was warranted where 10 years had elapsed since the erroneous conviction for first degree robbery and the defendant had already served time on the void conviction equal to the total term of many first degree robbery con*188victions. Both cases are inapposite to the case at bench and the record provides no basis for precluding a retrial of defendant.

The judgment is reversed and the cause remanded to the superior court for further proceedings consistent with the views expressed herein.

I dissent. The majority holds that it is contrary to public policy to appoint a part-time city attorney to represent an indigent criminal defendant. However sage such a rule may be as a procedure for the future it does not follow that the instant conviction, in which no actual prejudice, has been shown, must be reversed. On the contrary, I believe that in light of the evidence the retrial of this defendant will be an idle and judicially wasteful act.

The majority expresses concern for the “potentially debilitating effect” on the quality of legal assistance rendered by a part-time city attorney to criminal defendants. (Ante, p. 183; italics added.) It is conceded, however, that such representation, unlike other potential conflict of interest situations, is not prohibited by statute. (Ante, p. 183, fn. 3.) It is also conceded that the representation of defendant in the instant case “did not directly conflict with appointed counsel’s official duties as city attorney.”1 (Ante, p. 183.) Moreover the majority unhesitatingly states that its holding “should not be construed as adversely reflecting upon the quality of legal counsel provided by Mr. Clawson [defendant’s appointed counsel] in the instant case. To the contrary, the record demonstrates that Mr. Clawson competently represented defendant throughout all phases of the trial.” (Ante, p. 183, fn. 4.) Apparently the majority fears some undemonstrated but supposedly inherent reluctance on the part of any city attorney to engage in “an exhaustive or abrasive cross-examination” of police officer witnesses. (Ante, p. 184.) Such a reluctance might be expected if the defense attorney and the testifying police officers were all employed by the City of Hanford, but this is not our case. Here, no Hanford police were involved in defendant’s prosecution and the crime and arrest took place in other cities. The majority’s speculation that Hanford’s city attorney might be tempted to temper his advocacy to avoid a possible weakening of relationships with authorities elsewhere in the county is pure speculation and not grounds for reversal.

*189Although I agree that it is well to avoid hny potential conflict of interest and thus, that a city attorney or even part-time city attorney should not accept a defense assignment, I cannot say that the procedure has resulted in a miscarriage of justice (Cal. Const., art. VI, § 13; People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243]), and, therefore, would affirm the judgment of the trial court.

Respondent’s petition for a rehearing was denied-September 12, 1974. McComb, J., Burke, J., and Clark, J., were of the opinion that the petition should be granted.