MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-14
CONFLICT OF INTEREST: May a lawyer, who serves on a homeowners association board of directors with its own police force, represent defendants in criminal and traffic matters in which police officers will be witnesses, if the lawyer recuses himself from decisions of the board relating to the police force?
Your letter presents the following factual scenario: You are an attorney serving on the board of directors of a homeowners association with its own police force. You are not paid for your services and do not render legal advice to the board. In private practice, you occasionally represent defendants in criminal and traffic cases in which members of the police force may appear as witnesses. You have informed the board of directors, the General Manager of the homeowners association, and the Police Chief of your representation of individuals in these types of cases. You have also recused yourself from decisions of the board of directors relating in any way to the police force. You advise your clients in such cases about your service on the board of directors, and you obtain consent from such clients prior to initiation of the representation. Your letter further states that the General Manager and the legal counsel for the homeowners association have expressed concern about your representation of clients in such cases.
As a result, you have inquired about your obligations under the Maryland Rules of Professional Conduct. Your inquiry specifically triggers Rule 1.7, the general rule governing conflicts of interest. Rule 1.7, in pertinent part, provides:
Rule 1.7. Conflict of Interest: General rule.
(b) - 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:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation.
(c) The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved.
You have indicated that you do not believe that your representation of clients under these circumstances would be adversely affected because of the alleged conflict of interest. You have also indicated that you consult with your clients and obtain their consent after consultation but prior to entering into professional engagement. Given these facts, only the following questions remain: (1) is there a conflict of interest; (2) if there is a conflict, would your representation of clients be materially limited by your responsibilities to another client or to a third person, or by your own interests; and (3) if have so, is it reasonable for you to believe that your representation of client sunder such circumstances would not be adversely affected?
At the outset, the Committee concludes that, if you participated in the homeowners association's deliberations on matters involving the police force, your representation of clients in police-related matters would constitute a conflict of interest. There are innumerable ways in which your responsibilities to the association could conflict with your separate obligation to zealously advocate for your clients - from voting on the compensation of police officers, to evaluating their performance, to adopting regulations governing homeowners' conduct, to name just a few examples. Without recusal, it would prove exceedingly difficult for you to divorce your competing obligations to the association and your clients.
If your Board adopts regulations and you represent persons charged with violations of those regulations then the Committee believes that your relationship to the Board creates an "institutional conflict." You arguably would gain an advantage in your representation of individuals where members of the private police force testify, because of your insider's knowledge as to the rationale behind the various regulations those officers are enforcing. In addition, you would have also participated in discussions involving the hiring, firing and payment to those officers.
The Committee's conclusion herein is consistent with its earlier decisions as s forth in Ethics Docket 1998-32 and 2000-10.