dissenting.
One of the reasons for my dissent is to point out the fact that the majority opinion is limited to lawyer-legislator participation in civil transactions only. The question posed to the trial court dealt only with the possible conflict of interest of a lawyer-legislator in representing a client before a State agency in a civil action.
The Attorney General states the issue in his brief as follows: “Whether a legislator/attorney who, by virtue of his public office, is a trustee and fiduciary of the people of Georgia, amenable to them at all times, may bring a civil action on behalf of private parties against a State agency. . . .”
In stating the position of the parties in the trial court, the judge’s order recites, “Aside from criminal cases, it is the opinion of the Attorney General, . . . that disqualification would obtain in cases where the State is plaintiff, such as condemnation proceedings, as well as in cases, such as the instant case, where the State is a defendant.”
Thus the ruling of the trial court and the holding in the majority opinion relates only to civil transactions wherein the State of Georgia is a party and makes no holding with reference to a lawyer-legislator representing a client in a criminal transaction.
Another reason for my dissent is that I would apply an ad hoc rule of disqualification in civil cases of this nature rather than a per se rule. Conflicts of interest are not subject to a blanket generalized appraisal. A conflict of interest may appear as a nebulous sort of thing without consequence or harm or it may appear so blatantly as to shock the conscience.
Applying a per se rule of conflict of interest in every case involving a lawyer-legislator overlooks the fact that a lawyer-leg*549islator wears two very distinctive hats. I agree that as a legislator he holds a public office which he holds in trust for the people. As such he is cast with all the duties and obligations of that sacred trust as a member of the legislative department. At the same time, and at all times, an attorney at law is an officer of the courts (Kellar v. State, 226 Ga. 432 (175 SE2d 654) (1970)), and therefore to that extent a member of the judicial branch of government. This relationship places upon the attorney a solemn and binding obligation. As an attorney admitted to practice in this State and as an officer of the court, he is bound by the Rules and Regulations of the State Bar of Georgia. These rules provide strict guidelines for his professional conduct. I find it highly conceivable that a lawyer-legislator in most cases can live up to his duties and obligations which he incurs in each capacity without a significant disqualifying conflict of interest. In those cases where he cannot, an apparent conflict of interest would easily appear and appropriate action taken under the general laws and directory rules governing the Bar.
The Attorney General contends that Hill violated the Code of Professional Responsibility which states that “A lawyer should avoid even the appearance of impropriety.” This Court addressed this canon recently in Blumenfeld v. Borenstein, 247 Ga. 406, 407 (276 SE2d 607) (1981) in which we said “Although the issue has never been squarely addressed in Georgia, courts in other jurisdictions have rarely been willing to disqualify an attorney based on the appearance of impropriety alone where there is no danger that the actual trial of the case will be tainted.” We went on to say “Basic fairness will not permit the disqualification of an attorney because of wrongdoing imputed to the attorney by reason of his status when as a matter of fact no wrongdoing exists . . . The mere fact that the public may perceive some conduct as improper is, without some actual impropriety, insufficient justification for interference with a client’s right to counsel of choice. This becomes even more apparent when the perceived impropriety is not conduct at all but is, instead, status.” (Emphasis supplied.) In that case we refused to adopt a per se rule of disqualification on the sole ground that an attorney’s spouse is a member of a firm representing an opposing party.
The trial judge noted that in this case there is no allegation of improper conduct or an imputation of professional wrongdoing. He therefore refused to adopt a per se rule of disqualification and looked solely to the facts of this particular case. His order stated that “nothing in this order should be construed to prevent the disqualification of a lawyer/legislator who uses his influence as a *550legislator to gain an advantage in representing a client against an agency of the State or who uses his position to self deal.”
I agree and conclude, as did the learned trial judge, that the question of disqualification of a lawyer/legislator for conflict of interest in civil actions against the state should stand or fall on the facts of each particular case. I would therefore affirm the judgment of the trial court.