MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2002-30
CONFLICTS: Potential Conflict of Interest as a Result of Part-Time Employment as an Assistant State’s Attorney
Your letter indicates that you are an associate in a private law firm in a Maryland County on the Eastern Shore with two district courts and one circuit court. There are ten attorneys in your firm and only one of them, another associate, practices criminal law as a defense attorney. You would like to apply for a position as a part-time assistant state's attorney in the County where the firm is located and question whether this would create a conflict of interest.
You recognize that, if hired, you could be assigned to prosecute a defendant that is represented by the other associate in your firm. You believe, however, that the chances of this occurring are slim, given the number of courts in the County, the number of state's attorneys (more than five) and the fact that you would be working only part-time as an assistant state's attorney. Furthermore, you believe the potential conflict of interest could be easily remedied by having the state's attorney assign another attorney in the office to prosecute the case. Furthermore, you indicate you would not discuss criminal cases with other attorneys in your firm.
Rule 1.10 of the Maryland Rules of Professional Conduct states:
"While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9 or 2.2."
Under Rule 1.10, you would be ethically precluded from undertaking the representation if your fellow associate would be prohibited from doing so.
Rule 1.7 of the Maryland Rules of Professional Conduct states:
- "A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
- the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
- each client consents after consultation.
- A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
- the lawyer reasonably believes the representation will not be adversely affected; and
- the client consents after consultation . . . ."
Generally, loyalty to a client prohibits a lawyer from undertaking representation that is directly adverse to that client. The comments following Rule 1.7 indicate that, ordinarily a lawyer may not act as an advocate against a client the lawyer represents in some other matter, even if the other matter is unrelated.
Under the facts you presented, your client would be the State and another associate in the law firm that employs you would be representing firm clients who are defendants in criminal matters being prosecuted by the State. This Committee has previously held that representation of defendants in criminal matters is unethical where an attorney is concurrently employed or retained as an attorney for the State of Maryland (See Ethics Docket Nos. 98-12, 83-42 and 77-57).1 These opinions having concluded that the State, representing the public, cannot consent to representation that would be adverse to the public interest.
The Committee's opinion in Ethics Docket 83-42 is particularly instructive. The Opinion reviewed more than a dozen prior opinions on this subject. Although all of these opinions were decided under the previously applicable Disciplinary Rules, which have now been replaced by the Rules of Professional Conduct, the analysis of the conflict inherent for a part-time assistant state's attorney who also represents criminal defendants (either directly or through another attorney in his or her firm) is still sound. The Committee determined that the ethical prohibition or limitation on an attorney's private practice, where he or she is a part-time state's attorney, is based on the Committee's view of the State's interest in the apprehension and prosecution of criminal suspects. The responsibility of the public prosecutor differs from that of the usual advocate. Accordingly, the prosecutor has responsibilities different from those of a lawyer in private practice with respect to evidence and witnesses. As a result, the prosecutor's interest necessarily affects the attitude of the part-time state's attorney toward all criminal suspects and not just the ones he is assigned to prosecute.
The Committee observed in Docket 83-42 that it has "steadfastly maintained that the interests of the State and the defense are always in conflict, even where the prosecutor has no foreseeable role in the matter as a State's Attorney." Furthermore, the Committee was concerned that part-time state's attorneys are in a position to use their positions or the economic power of government to intimidate other lawyers or their clients, to feed clients contacted through their public office into their private practice, to obtain favors from Court personnel (because of their frequent exposure and proximity) in getting preferential trial dates, docket calls or information from public files, and to promise clients (expressly or implicitly) favorable results because of the influence of their office.
More recently, the Committee re-considered whether governmental consent may be given under Rule 1.7 in certain specific factual circumstances. The Committee concluded that a State agency is not absolutely precluded from giving its consent to a potential conflict under Rule 1.7. Ethics Docket No. 99-28. The Committee based its opinion, however, on Rule 1.11(a), applicable to successive government and private employment. Relying on Rule 1.11(a), the Committee concluded that government agencies ethically have the power and right to waive a conflict in appropriate factual situations unless precluded by applicable laws or regulations.
The Committee acknowledged, however, that its opinion in Docket 99-28 changes the "long-followed precedent of precluding consent by a government agency to waive a potential conflict", but cautioned that it was not the intention of the Committee to reverse the conclusion reached in every prior opinion in which conflicts involving the government were raised. The Committee further cautioned that each prior opinion and each future factual situation should be analyzed in terms of the specific facts, laws, regulations and all other applicable factors before determining whether the government could waive a conflict or potential conflict.
Having reviewed the facts as presented by your inquiry, Rules 1.7 and 1.10 and our prior opinions based on facts similar to those you presented, the Committee concludes that its decisions in Docket Nos. 98-12, 83-42 and 77-57 are still sound insofar as they conclude that a public prosecutor cannot also handle the defense of criminal matters and that Rule 1.10 imputes the disqualification to other members of the prosecutor's firm. This conclusion rests with the admonitions in Rule 1.7 that a lawyer must not represent a client "if the representation of that client will be materially limited by the lawyer's responsibilities to ... a third person", which in this case we believe includes the public prosecutor's duty to the public as noted in our prior opinions. As we concluded in those opinions, in a criminal matter under facts similar to those presented by your inquiry, "the State, representing the interests of the public, cannot consent to representation that would be adverse to the public interest" in a criminal matter under the facts presented.2
Moreover, the Committee believes the conflict is non-waivable because you may not request consent for waiver of the conflict from your firm's private criminal defendant clients. You would be unable to cure the inherent conflict because you could not provide full disclosure to the firm's criminal defendant clients and, thus, you would be unable to obtain informed consent. As the Comment to Rule 1.7 states: "when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer cannot properly ask for such agreement or provide representation on the basis of the client's consent." The Committee does not believe you could seek a conflict waiver from either the State or your firm's criminal defendant clients where either side could challenge the sufficiency of the representation because of the inherent conflict and the inability to obtain informed consent.
The Committee concludes, therefore, that representation of defendants in criminal matters is unethical where you or any other attorney in your firm is concurrently employed or retained as an attorney for the State of Maryland.
1 The Committee's opinions and an index of opinions may be found at www.msba.org (click on "Ethics Opinions").
2 For example, one of the prosecutors might be preparing a sealed indictment or participating in some other confidential investigation and would not be able to discuss the potential conflict with his partner as part of a conflict waiver process.