Representation of Criminal Defendants by Attorney Seeking Position as Assistant U.S. Attorney
A lawyer who is primarily engaged in criminal defense work may continue to represent criminal defense clients while seeking a position with the United States Attorney’s office provided that each of his/her criminal defense clients gives consent to the representation after full disclosure of the possible disadvantages that may result if the lawyer must withdraw to start employment with the United States Attorney. Disclosure must be made and consent obtained when the lawyer takes the first active step in seeking such employment. With disclosure and consent, a lawyer may accept new criminal defense clients after deciding to apply to the United States Attorney’s office, before commencement of employment.
Applicable Code
- DR 7-101 (Representing a Client Zealously)
- DR 5-101 (Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment)
Applicable Rule
- Rule 1.7 (Conflict of Interest: General Rule)
Inquiry
An attorney practicing in the District of Columbia primarily represents
criminal defendants under the Criminal Justice Act in the Superior Court
of the District of Columbia. The attorney determines to seek a position
with the United States Attorney’s Office for the District of Columbia
and submits a resume for review. It will be several weeks before the United
States Attorney’s offices decides whether or not to grant the applicant
an interview. Thereafter, if she is offered a position as an Assistant
in the U.S. Attorney’s Office, actual employment may not commence for
a number of months, perhaps as long as a year, pending an FBI investigation
and because of federal hiring freezes.
The attorney asks whether she must disclose to
her clients her decision to seek employment with the prosecutor’s office,
and whether she is required to withdraw from representation of criminal
defendants prosecuted by the United States Attorney’s office:
- As soon as she determines to seek a position with the United States Attorney’s office;
- When she submits a resume;
- When she is granted an interview;
- When she is offered a position;
- When an employment date is set.
Discussion
This inquiry raises the issue whether a lawyer who is actively seeking
a position as a prosecutor in the office of the United States Attorney
for the District of Columbia is thereby disqualified during the pendency
of her job application, and before she has a firm employment date, from
continuing to represent clients involved in criminal investigations or
proceedings being conducted by that office and by the District of Columbia
Corporation Counsel’s office. The questions to be resolved are first,
whether the lawyer’s interest in pursuing this ambition will or reasonably
may be expected to affect the exercise of her professional judgment in
behalf of her clients; if so, whether and under what circumstances the
lawyer may continue to represent existing clients in criminal cases being
prosecuted by the United States Attorney’s office after deciding to seek
a position with that office; and, second, whether the lawyer after determining
to seek a position with the United States Attorney’s office, may continue
to seek and accept new employment to represent clients being prosecuted
by that office or by the District of Columbia Corporation Counsel’s office.
In defining the obligation of the bar to represent
clients zealously within the bounds of law, DR 7-101(A) provides that
“A lawyer shall not intentionally: (1) fail to seek the lawful objectives
of his client through reasonably available means permitted by law and
the disciplinary rules. . . .” This grave responsibility, which is
also set forth in Rule 1.3 of the Rules of Professional Conduct and Related
Comments (adopted March 1, 1990 by the D.C. Court of Appeals and effective
January 1, 1991), is of special importance in criminal proceedings where
the client’s liberty is in jeopardy.
To insure the lawyer’s independence and freedom
to act at all times in the best interests of his or her client, DR 5-101
enjoins the lawyer to refuse employment when some personal interest may
impair the lawyer’s independent professional judgment. Thus, DR 5-101(A)
provides: “Except with the consent of this client after full disclosure,
a lawyer shall not accept employment if the exercise of his professional
judgment on behalf of his client will be or reasonably may be affected
by his own financial, business, property or personal interests.”
Cf. Rule 1.7(B)(4) of the Rules of Professional Conduct effective January
1, 1991.
This rule governs the lawyer’s initial decision
whether or not to undertake the representation of a client in a new matter
when some existing interest of the lawyer might reasonably be expected
to affect the zealousness with which the lawyer acts in behalf of the
client. The rule has also been interpreted to impose a continuing ethical
obligation on a lawyer not to place his or her personal interests above
the client’s interests. Opinion Nos. 144, 169.
Rule 1.7 of the new Rules effective January 1,
1991, contains prescriptions similar to those of DR 5-101.
DR 5-101(A), read literally, addresses the question
of whether and when a lawyer may accept new employment that might be in
conflict with the lawyer’s own business or personal interests; or which
might adversely affect the lawyer’s ability to exercise independent professional
judgment in behalf of an existing client, or otherwise involve the lawyer
in representing conflicting interests. In considering the present inquiry
the Committee interprets this rule as applying as well to the question
of whether and when a lawyer may affirmatively seek new employment which,
if accepted, would create the same sort of conflicts.
1. Lawyer’s Duty to Existing Clients When He or She Applies for a
Position in the Prosecutor’s Office
The overriding consideration in addressing the questions raised
by this inquiry, is not the personal interest or ambition of the lawyer,
but the lawyer’s responsibility to represent his or her client zealously
within the bounds of law, especially those who may be charged with a
crime. Clearly, the lawyer cannot allow personal interests to interfere
with that duty. The lawyer may perceive the particular prosecutor handling
a case or matter she has been retained to defend as having some influence
over her employment prospects. She may also believe that her advocacy
skills as demonstrated in that case or matter will provide a principal
basis upon which she will be evaluated. If so, she likely will seek
to make a favorable impression. It is difficult to know whether or not
these subjective feelings will compromise her zealous representation
of her client. They may or they may not. In some circumstances the lawyer
may work even harder in her client’s behalf in order to demonstrate
her competence and ability.
Thus, the lawyer may redouble the effort and
time she previously gave to the client’s cause, working more vigorously
to master the applicable law and facts of the case. Obscure tactics
and defenses may receive greater attention than otherwise, and the lawyer,
in an effort to perform well, may conduct a more thorough discovery
to better anticipate the prosecution’s attack. At trial, the attorney
may put forth her defense and counter the prosecution more energetically
than otherwise. All of this activity, though driven by the lawyer’s
personal interest in performing well and enhancing her employment prospects,
would benefit the client also. The interests of the lawyer and the client
in this situation, therefore, could very well be consistent.
On the other hand, when representing clients
in criminal proceedings, the lawyer is often required to make judgments
as to courses of action and to assert rights that heavily burden the
prosecution and create difficult obstacles to conviction of the lawyer’s
clients. The prosecutor may view some of defense counsel’s tactics as
unwarranted, technical, unreasonable or even personally offensive.
Moreover, criminal investigations and trials
are the most adversarial of all litigation. It is to be expected that
the prosecutor will vigorously contest, in his effort to obtain a conviction,
virtually all of defense counsel’s requests for discovery, pre-trial
motions, and trial tactics. In the context of such hotly contested and
adversarial proceedings, relationships between opposing counsel may
become strained. Nevertheless, defense counsel is obligated to take
whatever lawful and ethical measures are required to vindicate a client’s
cause without regard to opposition, obstruction, or personal interests,
such as a desire not to offend or irritate members of the prosecutor’s
office from which she is seeking or may have recently received favorable
job consideration. Where concern for jeopardizing her employment opportunities
interferes with a lawyer’s representation of her client, an impermissible
conflict of interest exists.
The difficulty, therefore, is that, while the
lawyer may react in this situation in a manner entirely consistent with
her client’s best interests, she could also perceive her own interests
to be in conflict with those of her client. Moreover, the lawyer may
not be able to foresee whether or when this conflict will arise during
the course of her representation.
The Committee finds that DR 5-101 applies here,
as will Rule 1.7 when it becomes effective on January 1, 1991. These
rules provide that, where, as here, the lawyer’s judgment on behalf
of her client reasonably may be affected by her own personal interests,
she may not proceed without obtaining the client’s consent after full
disclosure. (DR 5-101(A)). The Committee has previously recognized “that
the obvious ability to provide adequate representation, which pursuant
to DR 7-101 must be zealous, is an independent requirement which must
be met even though consent is provided.” Opinion 163, referring
to Opinion 49. A criminal defendant, moreover, may feel compelled to
give consent rather than incur the delay and inconvenience which would
otherwise result.
While it is ultimately the lawyer’s own subjective
perception of the relationship between her interests and the client’s
which determines the existence of a conflict,1
the evaluation of the potential for conflict necessarily must rest with
the client. Thus, even if the lawyer determines that her own interests
in obtaining a position in the prosecutor’s office will not impair the
zealousness of her representation of her client’s interests, this possibility
must be fully disclosed to the client. The client must also be made aware of the possibility of added expense,
delay, inconvenience and other disadvantages to the client that may
occur, if the lawyer must subsequently withdraw from the case, perhaps
at a most inconvenient time, to commence employment with the United
States Attorney’s office. Only if the client consents after full and
complete disclosure of all of these possibilities may the lawyer continue
to represent the client. See Comment [12] to Rule 1.7 effective January
1, 1991.
The Committee believes that this duty to disclose
and seek consent arises when the attorney has determined to pursue employment
with the United States Attorney’s Office for the District of Columbia.
Thus, disclosure should be made not later than when the lawyer takes
the first active step in seeking such employment. This may be when the
lawyer calls to discuss or inquire about procedures for making application;
and the duty certainly arises when the lawyer submits a resume.
Further, the lawyer must apprise her client
of any significant change in her employment prospects with the prosecutor’s
office, particularly any developments tending to indicate that the lawyer
might need to withdraw from the representation. This duty derives from
the lawyer’s obligation to mitigate the burden which withdrawal imposes
on the client.2
2. During Pendency of Application for a Position In Prosecutor’s Office,
Lawyer May Accept New Criminal Defense Clients With Their Consent After
Full Disclosure
The resolution of the question whether or not the inquirer may seek
and accept new criminal defense clients after she has determined to
apply for a position with the United States Attorney’s office, while
her application is pending and before employment is scheduled to commence,
is governed by DR 5-101(A). This rule permits a lawyer, with the consent
of the client, to accept new employment even though the exercise of
the lawyer’s independent judgment might be affected by some business
or personal interest.
In these circumstances, assuming full disclosure,
the client is in a position to evaluate the possibility that the vigor
of the lawyer’s representation may be tempered by a desire not to take
any action that could lessen the chances of her becoming a member of
the prosecutor’s staff. A decision can be reached freely without concern
about possible significant disadvantages if consent is refused. Other
counsel not so infected with adverse personal interests are presumably
available, and there is no apparent reason why the client would suffer
any significant delay, expense or inconvenience by refusing consent.
Accordingly, the Committee concludes that under
DR 5-101(A), the lawyer may accept new criminal matters with the consent
of the clients after full disclosure.
There remains the question whether a lawyer
may continue to seek and accept new employment to represent clients
being prosecuted by the District of Columbia Corporation Counsel’s office
during the pendency of her application with the United States Attorney’s
office. This question does not present a situation in which there is
or may be a conflict between the lawyer’s interests and her client’s
interests. Unlike the scenario which the above analysis contemplates,
the lawyer cannot reasonably be concerned about jeopardizing her employment
prospects in an unrelated agency by her actions in zealously defending
a criminal client prosecuted by a different agency. Therefore, neither
DR 5-101 nor DR 5-105 applies. Although a client in a criminal matter
may prefer that his lawyer be completely “defense oriented”
and not even consider becoming a prosecutor while defending him, this
preference does not mean that a potential or actual conflict of interest
exists, absent the circumstances described above. Consequently, the
Committee finds that the lawyer is not obligated to disclose to any
of her clients who are being prosecuted by the District of Columbia
Corporation Counsel’s office that she is seeking employment with the
United States Attorney’s office.
Concurring Opinion of Four Members
We agree with the Committee’s conclusion but wish to emphasize the
narrow reach of the Opinion. The Inquiry presents a situation in which
the lawyer has an extensive on-going criminal practice and the employment
process in the U.S. Attorney’s Office takes many months to complete. Since
the lawyer cannot be expected to cease her practice entirely, it is not
feasible for her to time her decision to seek employment with the U.S.
Attorney’s Office until the possible conflict with existing clients is
eliminated. In other circumstances, however, it may be feasible for a
lawyer to avoid any conflict by delaying the decision, in which case,
we believe the lawyer may have an ethical duty to withhold the application
until the conflict is removed. See EC 5-2 (“After accepting employment,
a lawyer carefully should refrain from assuming a position that would
tend to make his judgment less protective of the interests of his client.”)
Inquiry No. 88-2-5
Adopted: April 17, 1990
- If in the lawyer’s own mind the conflict of interests is insurmountable, and she cannot at the same time pursue her personal interest in becoming a prosecutor while continuing to represent criminal defendants, she must of course withdraw (no not submit) her application to the U.S. Attorney’s office until all of her pending criminal matters have been completed.
- While there may be situations where it would be appropriate to do so, this opinion does not address the question of whether a lawyer should inform the judge handling a client’s case that he or she has applied for a position in the prosecutor’s office.
