Ethics Opinon 1976-12
November 9, 1976
SUBJECT: REQUEST FOR OPINION REGARDING REPRESENTATION OF CRIMINAL DEFENDANTS BY PARTNERS OR ASSOCIATES OF AN ATTORNEY WHO IS AN ELECTED MEMBER OF THE CITY COUNCIL.
An elected member of a City Council maintains a professional corporation for the practice of law with his wife and an associate. The City Attorney of that city, an elected public official, is prosecutor of all misdemeanor violations of both state and city ordinances alleged to have been committed within the city limits. Under what circumstances may the Councilman's wife and associate represent criminal defendants prosecuted by the City Attorney's Office of that city?
Neither the City Councilman nor any attorney with whom he associates professionally may defend any defendant prosecuted by the City Attorney's Office. While this prohibition does not extend to the wife of the City Councilman merely by virtue of their marriage, it does extend to any attorney who might appear to the general public to be in an association with the City Councilman, including actual partners and those who share office space.
STATUTES AND CANONS
Rule 5-102(B) of the Rules of Professional Conduct of the State Bar of California provides:
"A member of the State Bar shall not represent conflicting interests, except with the written consent of all parties concerned."
Disciplinary Rule 5-101(A) of the Code of Professional Responsibility of the American Bar Association provides:
"Except with the consent of his 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."
Disciplinary Rule 5-105 of the Code of Professional Responsibility provides in part:
"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment. . . .
"(D) If a lawyer is required to decline employment or to withdraw from employment under DR 5?105, no partner or associate of his or his firm may accept or continue such employment."
Disciplinary Rule 8-101(A) of the Code of Professional Responsibility provides in part:
"A lawyer who holds public office shall not . . .
(2) Use his public position to influence, or attempt to influence, a tribunal to act in favor of himself or of a client."
Disciplinary Rule 9-101 of the Code of Professional responsibility provides in part:
"DR 9-101 Avoiding the Appearance of Impropriety.
"(B) A lawyer shall not accept private employment in a matter in which he had substantial responsibility while he was a public employee."
Ethical Consideration 5-14 of the Code of Professional Responsibility of the American Bar Association provides:
"EC 5-14 Maintaining the independence of professional judgment required of a lawyer precludes his acceptance or continuation of employment that will adversely affect his judgment on behalf of or dilute his loyalty to a client. This problem arises whenever a lawyer is asked to represent two or more clients who may have differing interests, whether such interests be conflicting, inconsistent, diverse, or otherwise discordant."
And Ethical Consideration 8-8 of the Code of Professional Responsibility provides:
"Lawyers often serve as legislators or as holders of other public offices. This is highly desirable as lawyers are uniquely qualified to make significant contributions to the improvement of the legal system. A lawyer who is a public officer, whether full or part-time, should not engage in activities in which his personal or professional interests are or foreseeably may be in conflict with his official duties."
The Committee on Legal Ethics of the San Diego County Bar Association has considered a question involving the representation of adverse parties by attorneys sharing office space and secretarial help. In Formal Opinion 1972-15, the Committee held that whether or not the lawyers are actual partners, so long as they do business in the same office, it is unethical for them to represent conflicting interests.
In Formal Opinion 1969-1, the Committee ruled that it was unethical for a member of the City Council or any partner in a law firm in which the City Councilman is a member to represent defendants prosecuted by the City Attorney. The same prohibition applies to criminal offenses presented by the District Attorney in which members of that city's police department are witnesses.
The Committee on Legal Ethics of the Los Angeles County Bar Association ruled in Formal Opinions 242 and 276 that neither a city attorney nor any attorney associated with him in a law firm may represent persons in criminal actions.
And, in Formal Opinion 273, the Los Angeles County Bar Association concluded that it was improper for a member of the city council to represent a person charged with the violation of a city ordinance.
The Committee on Ethics and Professional Responsibility of the American Bar Association recently considered a question involving the representation of adverse interests by the attorneys who were husband and wife. In Formal Opinion 340, the Committee ruled that while the marriage relationship requires careful adherence to the disciplinary rules, a husband and wife not practicing in association with one another may represent adverse interests.
In Formal Opinion 33, the American Bar Association advised that "The relations of partners in a law firm are so close that the firm, and all the members thereof, are barred from accepting any employment that any one member of the firm is prohibited from taking."
In Formal Opinion 186, the American Bar Association concluded that a county attorney, who represented the county in civil matters only may not represent a defendant in a criminal case.
The Committee on Ethics and Professional Responsibility of the American Bar Association ruled in Formal Opinion 16 that one member of a law firm may not represent criminal defendants who are being prosecuted by another member of the firm who holds the office of prosecuting attorney. In this and many subsequent opinions, the Committee held that, "No question of consent can be involved as the public is concerned and it cannot consent."
In Informal Opinion 995, the Committee on Professional Responsibility of the American Bar Association concluded that an attorney sharing office space with another attorney was precluded from representing a party whom the other attorney could not ethically represent.
In the case of People v. Rhodes, 12 Cal.3d 180 (1974), an attorney who served as the city attorney was appointed to represent an indigent defendant charged with the commission of a felony. In reversing the defendant's conviction, the court held that the vital interests of the defendant and the criminal justice system were detrimentally affected where the city attorney is permitted to defend those charged criminally.
It is axiomatic that the same restraints in representation of a client which creates a conflict of interest that apply to one member of a law firm apply to all members. This applies not only to those members who are actual partners, but also to associate members, and even to those who merely share office space. In the latter case, it is the appearance of evil which must scrupulously be avoided, especially where the public interest is involved, as here.
As pointed out in Formal Opinion 340 of the Committee on Ethics and Professional Responsibility, the same restrictions do not apply to an attorney who is the wife or other relative of a disqualified attorney so long as they do not associate one with another professionally. Obvious possibilities of inadvertent breach of confidence, however, require very careful adherence to the Rules of Professional Conduct.
In Formal Opinion 186, supra, the Committee on Ethics and Professional Responsibilities explains the conflict in interest as it relates to the City Councilman: ". . . [T]he situation presented is that of two public officials both charged with loyalty to the public, one representing the public in a criminal prosecution and the other defending the accused in the criminal prosecution." The opinion continues to explain that the city councilman, by analogy, would be placed in an "unseemly situation likely to destroy public confidence in him as a public officer, and bring reproach to his profession." Thus, the effectiveness of the city councilman in the discharge of his public trust must not be endangered.
Formal Opinion 273, supra, of the Committee on Legal Ethics also points out that while acting as defense counsel, the City Councilman may be placed in a position that he must attack the validity of an ordinance which he may have supported in his capacity as council member.
So also, one charged with commission of a criminal offense ". . . is entitled to legal assistance unimpaired by the influence of conflicting interests." People v. Rhodes, supra, at 183. In Rhodes, the California Supreme Court pointed out that a conflict of interest similar to that here presented could serve to deprive a criminal defendant of his attorney's undivided loyalty. Id. at 184.
Both Formal Opinion 273 and Formal Opinion 1969-1 of the Committee on Legal Ethics point out that members of the City Council act in a supervisorial capacity over members of the city police force. Again, a conflict would appear when the City Councilman or one of his associates were called upon to attack a city police as a witness. This dilemma could also influence the testimony of an officer witness to the public detriment. This same conflict was noted in the Rhodes case, supra.
Finally, identical questions as that presented here have also been resolved in favor of the public interest in three sates, Colorado (Opinion 19), Virginia (Ethics Opinion 136), and Washington (Opinion 79). Therefore, it is the subcommittee's opinion that it would be improper for any member or associate of a law firm which has as a partner a member of the City Council to represent persons prosecuted by the City Attorney.
November 9, 1976
This opinion is not binding upon the State Bar, the Board of Governors, its agents or employees.
"I disagree with this opinion to the extent that it suggests, on pp. 2-3 that rule 2-108 'entitles' a law firm to a share of a fee. In my view such 'entitlement' is a civil matter, not an ethical one. Rule 2-108 merely permits, ethically, such a division of fees to be made if the conditions of the Rule are satisfied.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.